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<s>[INST] Summarize the judgementAppeal No. 56 of 1962. Appeal by special leave from the judgment and decree dated March 3, 4, 1958 of the Bombay High Court in Appeal No. 27 of 1957. Purshattam Tricumdas, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. H.N. Sanyal, Solicitor General, N. P. Nathwani, AtiqurRehman and K. L. Hathi, for respondents Nos. 1 3, 5, 6, 8 17, 19 and 20. The Judgment of the Court was delivered by Ayyangar, J. This appeal, by special leave, raises for con sideration a very short point regarding the proper construction of bye law 137 B of the Bombay Bullion Association Ltd., which will hereafter be referred to as the 'Association ' and in particular whether on the facts established in this case the requirements of the said bye law has been satisfied. The appellant is a member of the first respondent the Association and carries on business as a bullion merchant. By a notification dated March 14, 1949, the Government of Bombay in exercise of the powers conferred by section 6 of the Bombay Forward Contracts Control Act, 1947 (Bombay Act LXIV of 1947) sanctioned by the bye laws framed by the Association. Under the said Act the members of the Association were permitted to carry on forward dealings in bullion subject to the said bye laws. The appeal is concerned with the regularity of a purchase effected by the Association purporting to act under its bye laws, of a quantity of silver at the risk of the appellant, on the footing that he had defaulted in performing his contract as a seller on February 3, 1953 which was a settlement day. The Association made this purchase treating the appellant as a defaulter and claimed from him the difference which amounted to Rs. 1,37,880 12 0. The appellant paid this sum when demanded on the 5th February under protest but on the next day he filed the suit out of which the present appeal arises against the Association and its Directors for its refund on the ground that the purchase at his risk by the Association was invalid as contrary to the bye laws and was, therefore, not binding on him. The appellant did not dispute that he defaulted in performing his obligation to tender the bullion of which he was the forward seller on the settlement day as he was bound to do under the relevant bye laws but the point on which he attacked the purchase was that no purchase could be made unless the forward purchasers for that settlement had fulfilled the terms of their 251 obligations under the bye laws and that as they had failed to do so, the Association had no right to effect a purchase on behalf and for the benefit of such defaulting purchasers. The suit was tried before Coyajee J. on the Original Side of the Bombay High Court. The learned Judge recorded a finding that there had been no default on the part of the purchasers and he, therefore, dismissed the suit. An appeal preferred by the appellant to a Division Bench also failed and it is the correctness of this decision of the High Court that is challenged in this appeal. Though the evidence went into minute details as to the things that happened on the Vaida day February 3, 1953 and in particular whether the several parties who figured as purchasers on the Vaida day had or had not paid in their cheques into the Clearing House of the Association on February 3, 1953 as they were bound to do under the bye laws, it is not necessary for us to go into this matter because there is a concurrent finding of fact of both the Courts that each one of the cheques of the several purchasers was, paid into the Clearing House on February 3, 1953, though it is now clear from the evidence that entries in regard to some of these transactions which took place on February 3, 1953 were made by the receiving bank or by the Clearing House only on the 4th. It is on the basis of this finding which could not be and was not challenged before us that we propose to deal with the points urged before us in this appeal. There is also one other matter which is referred to in the pleadings as well as in the judgments of the High Court which also we are putting aside. This relates to a plea by the appellant that the Director , of the Association had acted mala fide in permitting certain infractions of bye laws on the 3rd February by purchasers who would otherwise be in default and treating them is if they had fulfilled their obligations. The suggestion was that some of the members of Board of Directors had, in their individual capa city, figured as purchasers at the said settlement and that it was this personal interest of theirs that led to their favouring the group of purchasers as against the sellers at this Vaida. There was nothing in the evidence in support of this plea and Coyajee, J. having negatived it, the same does not appear to have been pressed before the Division Bench. Mr. Purshotam learned Counsel for the appellant did not seek to reagitate this matter, as indeed he could not, and hence this aspect also might be excluded from consideration. This leads us to the main question which it would be apparent from the above narrative is whether those who made forward 252 purchases for this Vaida had fulfilled their obligations under the bye laws. Now, the first matter that requires to be noticed is that the settlement for the Maha Vaida was originally fixed to February 2, 1953. Bye law 32 of the Association empowers the Board to fix the days of settlement in these terms : "32. (1) The settlement days shall be fixed by the Board or the Sub Committee appointed by it keeping in mind the provisions or these Rules and bye laws." but el. (3) of the same bye law empowers the Board : "if of opinion that circumstances exist which require an alteration of days so fixed [by cl. (1)] the Board may postpone such settlement day for a period not exceeding 5 days. " It was in exercise of this power that the Vaida day was postponed from February 2, 1953 to February 3, 1953. No dispute was raised by the appellant regarding the competence of the Board to effect this change of date or to the validity of the change effected thereby. Bye law 120 makes provision for the establishment of a Clearing House for effecting a settlement on the Vaida days. This bye law reads : " 120. Clearing House : A Clearing House shall be established under the jurisdiction of the Board to act as an ordinary agent of the members for settling forward transactions effected between members in gold, silver and sovereigns by exchanging delivery orders as also for making payment of the amounts of difference through the Clearing House. " Under the powers thus conferred the Bank of Baroda which opened a branch at the premises of the Association were appointed as the Clearing House. Bye law 125 provides for the appointment of a Clearing House Committee by the Board of Directors of the Association. Bye law 127 specifies the powers and duties of the Clearing House Committee and this runs : "127. Powers and duties of the Clearing House Committee : (1) The Clearing House Committee shall settle forms of clearing sheets, delivery forms, "Kaplis" (slips) relating to payment of differences and delivery of goods and other necessary documents for being used for the work relating to the Clearing House and every member shall have to use the said forms or other forms of the same size and with 253 similar writing. The said Committee shall from time to time fix charges for the said forms. (2) It shall issue instructions with regard to the work of the Clearing House and every member shall act according to the same. (3) If any member does not act according to any such instructions or commits any error or mistake in filing in any form or other document or writes so illegibly that it cannot be deciphered or makes delay in submitting, any such form or document to the Clearing House, then in every such case, the Clearing House Committee can impose on any member a penalty not exceeding Rs. 500. Sub Committee can be appointed for attending to the work relating to this sub clause. (4) It shall fix Havala rates in respect of outstanding transactions (transactions, which are not squared up) between two members and all members shall enter Havalas in respect of such outstanding transactions (which are not squared up) at these rates and also prepare statement of differences at those rates. Delivery orders also shall be issued at these very rates. The Havala rates in respect of transactions are given to facilitate the settlement. That does not in any way reduce the liability in respect of transactions. (5) The Clearing House Committee may declare any member as a defaulter and for that purpose, it shall have power to pass such resolutions and orders as it deems proper and necessary. (6) If, in connection with any forward settlement, the Clearing House finds, it difficult to make settlement on the days fixed for settlement, then the Clearing House Committee shall have power to make a change` of 48 hours at the maximum in all or any settlement days relating to that forward settlement. " Bye law 134(1) reads "134. (1) The member who wants to have his transactions settled through the Clearing House shall have to send to the Clearing House a clearing sheet in the settled form (form No. 1) on the days fixed for that purpose (which day will hereafter be known as he Clearance Day). 254 Bye law 137 specifies the obligations of members of the Association who give delivery and it reads: "137. The member who has to give delivery shall have to submit to the clearing house as many delivery orders signed by him as there would be, upon a calculation on the basis of every delivery order being either for five bars of silver or for 1,000 tolas of gold bar, or for 1,000 sovereigns. If any member has sent delivery orders without signing he shall attend the Clearing House at 10 A.M. in the morning on the date fixed for giving delivery orders by the Clearing House and shall sign the delivery orders. If the Clearing House finds it necessary it can call for further delivery orders from any member, and the member shall have to furnish the same forthwith but if the goods are with a bank he shall have to give delivery orders on the bank directly as mentioned above. " Bye law 137 A(1) deals with theobligations of a member whose clearance sheet shows outstanding sales and it reads : "137 A(1). A member whose Clearance Sheet shows outstanding sales shall submit to the Clearing Housewith hisdelivery orders a complete list of bars(gold or silver) in his possession or in the possession of his Banker inBombay with their number and marks, to bedelivered against such delivery orders. " As stated earlier, it is now common ground that the appellant did not carry out his obligations under this bye law. Bye law 137 B whose proper construction is raised by this appeal deals with the obligations of members whose Clearance Sheet shows outstanding purchases. It reads : "137 B. A member whose Clearance Sheet shows outstanding purchases will submit to the Clearing House with his Clearance Sheet a cheque certified "good for payment" or a demand draft on a Bank or a Bank 's payslip or cash for an amount sufficient to pay for all his outstanding purchases at the rate fixed by the Association. Failing payment as aforesaid the purchases outstanding in the Clearance Sheet or a part thereof will be auctioned at the purchaser 's risk on the same day. The cheques, demand drafts etc., so received by the Clearing House will be paid into the Clearing House Account in the Bank of Baroda Ltd., Bullion Hall Subbranch, and crossed cheques payable to bearer or payslips 255 of the said Bank in favour of the sellers whose delivery orders are given by the Clearing House to the purchasers will be handed over by the Clearing House to the said purchasers. The sellers shall give delivery of the goods covered by the delivery order to the said purchasers against such cheques or payslip issued by the said bank. Refusal by a seller to give delivery of goods covered by his delivery order to the purchaser against such a cheque or payslip during the time fixed for giving delivery, will amount to failure to give delivery and consequences in Bye law 147 will ensue. " It was not contested that if by the transactions to which we shall refer presently, members whose Clearance Sheets showed outstanding purchases had fulfilled their obligations under Bye law 137 B, the Association was entitled to effect the purchases at the risk and cost of the appellant under the succeeding bye laws which confer upon the Association this power to effect purchases or sales to square the transactions of defaulting members. An analysis of the bye law 137 B would show that a member whose Clearance Sheet showed outstanding purchases had, on the Vaida day, to file his Clearance Sheet and to make a payment into the Clearing House of an amount sufficient to pay for all his outstanding purchases at the rate fixed by the Association. This payment had to be made along with the Clearance Sheets and had to be in one of four forms: (a) a cheque certified good for payment, or (b) a Demand Draft on a bank, or (c) a bank 's pay in slip, or (d) cash. The question raised in this appeal, relates to whether certain of the purchasers had made payments into the Clearing House of the amounts payable by them in any of the permitted modes. Before proceeding further we might add that the Bank of Baroda which was the Clearing House admitted that the amounts required to be paid by the several purchaser members had been received by it on the 3rd and the total amounts represented by these payments were credited to the Association. Before setting out the matters in controversy as regards the form of payment adopted by certain purchasers under bye law 137 B, it is necessary to premise the narrative by a few facts. As already stated, the Bank of Baroda Ltd. had been appointed as the Clearing House of the Association under bye law 120 in or about 1949 and had been functioning as such ever since. To facilitate payments by and between members the Bank had opened a special branch called the 'Bullion Hall Sub branch ' in the premises of the 256 Association itself. Bye law 174(3) required every member to open an account in the Bank, so that it might be convenient to pay or draw cheques for effecting clearance. All the members had, in pursuance of and in obedience to this bye law, opened such accounts. The Bank issued special pay in slips for doing its business as a Clearing House. These slips were in triple foil, all of which had to be filled in by the member making the payment. When a member made a payment into the Bullion Exchange Branch of the Bank the extreme right of the three parts which recited the payment to the credit of the Clearing House of the Association by the member named and of the amount, also specifying the particulars of the payment would be signed or initialled by the Cashier and Ledger Keeper and be retained with the Bank. The paying in slip consisting of the other two parts in which similar entries were made and bearing the signature or initials of the Bank authorities was handed over to the member making the payment. He had thereafter to present this slip to the Clearing House along with the Valan or the Clearance Sheet, and thereupon the Clearing House department would endorse receipt on the part to the extreme left which would be returned to the member the other part being retained by the Clearing House. The settlement for the Vaida on February 3, 1963 appears. to have been an exceptionally heavy one on account of the very large volume of sales and purchases for that settlement and there was a total outstanding sale of 1897 bars of silver with, of course, corresponding purchases of the same number. Sellers of 1,004 bars gave delivery orders as required by bye laws 137 and 137 A but the appellant who had an outstanding sale of 853 bars failed to submit to the Clearing House the necessary delivery orders. The purchasers of the 1,897 bars had, under the bye laws, to submit their Clearance Sheets and make payments into the Clearing House in the manner provided by bye law 137 B of a total sum of Rs. 88,31,050 by February 3, 1953. By reason of the extraordinary situation created by the heavy payments having to be made coupled with a strike of the Clerks of the members on the previous day, the Directors of the Association passed a resolution extending the time for payment and delivery of Clearance Sheets beyond the usual banking hours to 7 P.m. on the 3rd February. The point in controversy in the appeal is whether this amount had been paid into the Bank on the 3rd February to the credit of the Clearing House in the manner provided by bye law 137 B. Out of the Rs. 88,31,050, some amount was paid in cash, 257 Rs. 42,99,400 by cheques drawn by members on their respective accounts with the Bullion Hall Sub branch of the Bank of Baroda Ltd. in favour of the Association 's Clearing House account, Rs. 24,64,050 by four pay slips of other banks in favour of the Bank of Baroda Ltd., Rs. 15,30,150 by transfers by two members from their accounts with the Jhaveri Bazar branch of the Bank of Baroda Ltd., to the Bullion Hall Sub branch for payment to the Association, Rs. 4,65,000 was by a cheque drawn by a member on his account with the Fort Branch of the Bank of Baroda Ltd., in favour of the Association, Clearing House Account. Of these, the submission of the appellant was that only the cash payment was a proper one and that the rest were not made in accordance with bye law 137 B. Before dealing with it, however, it might be stated that the Bank of Baroda Ltd. Clearing House submitted a statement on February 4, 1953 stating that all the payments totalling Rs. 88,31,050 had been received by it as a Clearing House and had been credited to the Association. Now, taking first the amounts paid by cheques drawn by mem bers on their accounts in the Bullion Hall Sub branch, several points were urged in support of the contention. The first was this : On February 3, 1953 the banking hours ended at 2.30 P.m. and several of the payments into the Clearing House Account by cheques drawn on the Banking account at this branch were made after that hour. It was, therefore, contended that even if there was enough money in the accounts of the several members to meet the cheques drawn by them, still their cheques could not be treated as cash as the banking hours had passed. This was answered by the Division Bench by pointing out that there was nothing illegal in the bank functioning for the purpose, of the members of the Clearing House after 2.30 P.m. that day. There was evidence before the Court that the ledgers and other books of account in the bank were available for being looked into to ascertain whether a member 's account had sufficient funds to meet the cheques which had been drawn. There was also evidence that the state of the member 's account was ascertained before the triplicate form was accepted by the bank and the two left side foils passed on to the depositing member for being handed over to the Clearing House and, as we stated earlier, on the next day the bank submitted a statement acknowledging receipt of the amount of the several cheques and showed their amounts to the credit of the Association. In these circumstances, the learned Judges of the High Court came to the conclusion that there had been a payment as required by the bye law 137 B on February 3, 1953. L3Sup./65 258 We entirely agree with the High Court as regards the alleged illegality said to have been caused by the Bank accepting cheques after the close of the usual Banking hours. It would be noticed that the extension of the banking hours from 2.30 P.m. to 7 p.m. that day was not in contravention of any statute and whatever the position might have been, if such extension acted to the detriment of a constituent of the bank, in the case on hand it was really for the benefit of the customer. In those circumstances, there was nothing illegal and, of course, nothing improper in the banking business having continued so long as the work of the bank as a Clearing House continued. There were also other objections raised to support the argument that these payments were contrary to bye law 137 B. To appreciate them it would be necessary to state a few more facts. From the analysis that we have made of payments that were made into the Clearing House by the purchasers in satisfaction of the amounts due by them for the settlement, Rs. 42,99,400 were by way of cheques drawn on the Bullion Hall Sub branch of the bank. We have also stated that the staff of the bank to whom the cheques were presented had endorsed on the slips that there were sufficient funds in the account to enable the cheque to be cleared and that it was after this process that the pay in slips were presented to the Clearing House with the Clearance Sheets in fulfilment of their obligations under the bye law. In regard to these payments by transfer entries to the credit of the Association it was urged (1) That several of the members numbering about 17 or so, did not, in fact, have enough funds in their accounts before 7 P.m. that day to enable the cheques which they drew in favour of the Clearing House to be honoured and that in consequence notwithstanding the acceptance of the cheques by the bank, such a payment could not be deemed within bye law 137 B. It was common ground that at 2.30 P.m. on the 3rd of February the amount to the credit of several of these members was not sufficient to enable the cheques which they issued later in the day to be cleared. But before the cheques were actually presented the purchaser members paid into their accounts (a) refunds which they obtained of margin moneys which they had deposited with the Association and to which they were entitled under the bye laws and (b) other cheques in favour of the Bank of Baroda. Taking up first the margin money refunds, purchasers had, under the bye laws, to pay margin moneys on their purchases and these had to be refunded to them on fulfilment of certain conditions. 'Me amounts 259 originally paid as margin by the purchasers had been credited to the Association and when the amount had to be refunded payment orders were made out by the Association on the 3rd of February of the amounts due to be refunded and these refund orders were paid by the respective purchasers to the credit of their accounts and their accounts were so credited with the Bullion Hall Subbranch. It was not the case of the appellant that the members were not entitled to the refund granted by the Association but what was objected to was that the refunds were really not due that day and had been improperly paid over by the Association in advance of the time when it was due Bye law 33 C(2) deals with the refund of margin money and it reads: "Where the conditions described in clause (a) or (b) as the case may be, cease to exist, the Association shall return the margin amount to the members concerned on the day following the next clearance day after making the necessary adjustment. " On this the appellant 's case was that the margin money could have been returned only on the 4th and that the Association acted improperly in refunding the amounts to the purchasers on the 3rd itself to enable them to utilise that money for the purpose of making their payments towards the settlement. We do not see any sub. stance in this complaint, nor do we see any relevance of this to the point now in controversy, viz., whether there had been a compliance with bye law 137 B. As already pointed out, the Vaida was originally fixed for the 2nd of February and if that had stood the amount would have been refundable on the 3rd. It was, however, owing to a strike of the Gumashtas of the members that a situation had arisen by reason of which the Vaida had to be postponed by a day. Whether as urged by Mr. Purshottam, that upon the proper construction of bye law 33 C that when a Vaida day is shifted the day fixed for the refund of the margin money also gets shifted or whether it would be payable on the day originally fixed, would, in our opinion, make no difference to the result. The bye law imposes an obligation on the Association to refund the margin money on the day next after the Vaida. On its terms, however, if the conditions of cls. (a) & (b) cease to exist, and obviously they ceased to exist in the present case even on the 2nd, there is nothing in the bye law to preclude the Association from refunding the margin money. Again, even if the margin money were returned before such refund could be legally enforced, the propriety or impropriety of the refund would have no bearing on the only point for consideration relevant to the question whether bye law 137 B was 260 complied with or not viz., whether the accounts of the members were in credit at the time the cheques were presented. (2) The next category of objection under this head was in relation to the bank having given credit to one of the members for the amount of a cheque of Rs. 2,00,000/ which was drawn on the Bank of India, Australia and China. Now, the evidence in the case was that this constituent Khimji Poonja & Co. had to pay Rs. 4,65,000/ as a purchaser. He had a credit balance at 2.30 P.m. on the 3rd of Rs. 1,93,215/13/5. To enable him to meet the cheque for Rs. 4,65,000/ which he drew on the Bullion Hall Sub Branch he paid into his account Rs. 1,05,500/ as refund of margin money. Besides, he drew a cheque for Rs. 2,00,000/on his account with the Bank of India, Australia & China in favour of the Bank of Baroda and paid this cheque to the credit of his account with the Head Office of the Bank of Baroda. The Head Office intimated this credit to the Bullion Exchange Branch and when he presented his cheque for Rs. 4,65,000/ to the Bullion Exchange Branch the same was honoured and the amount credited to the Association. The learned Judges accepted this evidence and the explanation and held that this constituent had enough funds with the Bank to meet the cheque of Rs. 4,65,000/ which he drew. Mr. Purshottam challenged the credibility of this evidence. We do not, however, propose to go into it for the reason that if, as a matter of fact, the Bank of Baroda as a Banking Institution gave Khimji Poonja & Co. credit for Rs. 2 lakhs that was a matter between those two parties and is not a matter which bears upon the validity of the payment for Rs. 4,65,000/ which Khimji made. It is not disputed, or rather it cannot be disputed that the Head Office of the bank credited Khimji Poonja & Co. with the sum of Rs. 2,00,000/ and there is evidence as to the intimation of this credit by the Head Office. Of course, the cheque by Khimji on the Chartered Bank was not certified "good for payment" but that was not a payment under bye law 137 B. The Head Office accepted it and therefore nothing follows from their not having insisted on that cheque being certified. The fact remains that the Head Office accepted that cheque; we shall take it in anticipation of being cleared, and as a fact it was cleared the next day. With the propriety of the Head Office of the Bank crediting the constituent with the amount of that cheque before actual realisation neither the Bullion Exchange Branch nor the Association to whose account the sum of Rs. 4,65,000/ represented by the cheque drawn in their favour was credited, nor the appellant are concerned. When once the Bank credited that sum into the account there was enough 261 credit for meeting the cheque of Rs. 4,65,000/ which is the only point we are concerned with. (3) The third head of objection that was raised, and this was the one which was the subject of strenuous contest in the High Court and before us, was whether the cheques on the Bullion Exchange Sub branch which were paid in with the Clearance Sheets were "certified good for payment" within bye law 137 B. It was urged that only four modes of payment were recognised and that a cheque even on the customer 's account in the same bank was still a cheque and that unless 'It was certified good for payment it did not satisfy the requirement of a valid payment within bye law 137 B. In this connection it was stressed that having regard to the consequences flowing from a payment or non payment on the terms of the bye laws a strict and literal construction of the bye law was called for and that the Courts should so construe the bye law and hold that a literal and not merely a substantial compliance with it in the sense of the Clearing House having received payment would satisfy the rule. In connection with the submission that cheques drawn against the customer 's account in the same branch of the bank could not be "cheques certified good for payment" even though there were enough funds to meet the cheques, learned Counsel drew our attention to the fact that certification of a. cheque was a well known form of commercial procedure which bankers adopted for the purpose of clearance by which the certifying and the Clearing bank became bound to each other. Reliance was, in this connection, placed on the observations of the Privy Council in Gaden vs The Newfoundland Savings Bank(1) where it is stated : "The only effect of the certifying is to give the cheque additional currency by showing on the face that it is drawn in good faith on funds sufficient to meet its payment, and by adding to the credit of the drawer that of the bank on which it is drawn. " Reference was also made to the judgment of Lord Wright in Bank of Baroda vs Punjab National Bank(2) where the histroy of certification or marking of cheques in India is dealt with. We do not, however, derive any assistance from these decisions on the point now in controversy. The first thing to be noticed about this objection as to certification is that there is no question of certification where a cheque drawn on an account in a branch of a bank is paid into the same branch to the credit of another party who has an account in that branch. Certification is a method adopted when a (1) [18991 A.C. 281 at p. 285. (2) 71 I.A. 124. 262 bank on which a cheque is drawn verifies the customer 's account on which it is drawn and indicates on the cheque that there are enough funds in his account to meet that cheque. It is obvious that there could be no question of such a certification by a bank of a cheque ,drawn on an account in a branch when the drawer pays it to the credit of a different account in the same branch. The verification of the account of the constituent for the purpose of ascertaining whether there is enough credit to meet the cheque which precedes a certification takes place at the very moment when the cheque is cleared. There is therefore no question then of two banks a certifying bank on which the cheque is drawn and a clearing bank into which that cheque is paid. In such circumstances, we should consider that the proper view to take of the payment would be that it is really a payment in cash. The Privy Council had, in Arsene A. Larocque vs Hyacin the Beauchmin,(1) to consider whether the payment a company by receipts given by it on account of the purchase price of the property which they sold was a payment in cash. In dealing with this question Lord Macnaghten quoted with approval the following from the judgment of James L. J. in Spargo 's(2) case : "It was said by the Lord Chancellor, and we entirely concurred with him, that it could not be right to put any construction upon that section (section 25 of the Companies Act, 1867) which would lead to such an absurd and un justifiable result as this, than in exchange of cheques would not be payment in cash, or that an order upon a banker to transfer money from the account of a company would not be a payment in cash." and another passage from the judgment of Mellish, L.J. "It is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards. " We consider these observations apposite and hold that where a payment was made by a cheque drawn on an account with the Bullion Exchange Sub branch and the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment by cheque. (1) (2) L.R. 8 Ch. 407. 263 The next transaction to which objection was taken was a payment into the Bullion Hall Sub branch of a sum of Rs. 4,65,000/ by one Sri Bansilal & Sons. The evidence was that the cheque was drawn not on his account on the Bullion Hall Sub branch of the Bank of Baroda but with the branch of the Bank at the Fort, Bombay. The evidence which the Court accepted was that on the presentation of the cheque the staff ascertained that the constituent had enough funds in the bank for the cheque to be cleared and accepted it and credited the same to the account of the Bullion Exchange Association. The objection raised to the receipt of this payment was also founded on the cheque not being certified as good for payment. It will be noticed that the only point of difference between this cheque and the cheques which were drawn on accounts of members with the Bullion Hall branch which we have dealt with just now is, that the cheque for Rs. 4,65,000/was not drawn on the drawer 's account with the Bullion Hall Subbranch but on an account in the same bank at the Fort branch. For the purpose of considering this point it is not necessary to enter on any examination of the question as to what extent the two branches of the same bank are separate entities. There is no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hall Sub branch to the credit of the Association. The Bullion Hall Sub branch of the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting that cheque. The only question is whether the payment could be treated as by a cheque which is certified as good for payment. We consider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in the bye law is a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the staff at the Bullion Hall Sub branch ascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within bye law 137 B. The learned Judges of the High Court, therefore,, rightly held that this payment was not outside the payments permitted by the said bye law. The last of the cases concerns a payment by one Jethalal Sangji Shah of a cheque for Rs. 1.16,250/ . The cheque was 264 made in favour of the Bank of India Ltd. not certified good for payment and was paid into the Bullion Hall Sub branch. The Clearing House received this cheque from Jethalal Sanagi Shah after obtaining a declaration from him that he had enough credit in his account with the Bank of India for meeting that cheque. It was stated that the Directors of the Association were approached by the Bank as to whether this cheque could be received in payment and that it was on their advice that a declaration in the form specified was taken from the member and it was only thereafter that the payment was accepted as conforming to bye law 137 B. Mr. Purshottam submitted that this payment could certainly not be within bye law 137 B. and we consider that learned Counsel is right. This, however, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purshottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements of bye law 137 B and in consequence the purchase made by the Directors at the risk of the appellant was legal and justified under the bye laws. Before concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd. in accordance with bye law 137 B. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevant bye law. In view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based. The appeal accordingly fails and is dismissed with costs. Appeal dismissed. [/INST]The appellant company dismissed some workmen after a domestic enquiry holding them guilty on a charge of 'go slow ' action. The respondents raised an industrial dispute. The Industrial Tribunal found that the dismissal of the respondents could not be sustained as there was no specific mention of 'go slow ' in the charge. Further it found that there was denial of natural justice at the enquiry as the workmen were not allowed to be represented by a person of their choice. The Tribunal set aside the dismissal of the respondents and ordered their reinstatement. The company appealed to the Supreme Court by special leave. HELD : (i) The charge specified cls. 10(vii) and (xvi) of the Operators Standing Orders. These clauses deal with insubordination and, inter alia, with 'go slow '. The workmen had been expressly warned by notice that they were "going slow" and in their reply to the charge they denied that they were going slow. The Tribunal was thus wrong in holding that the workmen were not charged with 'go slow ' action and could not be found guilty of that charge. [143 B C, G H] (ii) 'Mere was no denial of natural justice because the workmen asked to be represented by a member of a union which was not recognised The Standing Orders clearly provided that only a representative of a union which is registered under the Trade Union Act and recognised by the company can assist. 'Mere was no right to representation as such unless the company by its Standing Order recognised such a right. [144 F G, H] Kalindi & Ors. vs Tata Locomotives & Engineering Co. Ltd.[1960]3 S.C.R. 407 and Brook Bond India (P) Ltd. vs Subba Raman , relied on. </s>

<s>[INST] Summarize the judgementAppeal No. 374 of 1965. Appeal by special leave from the judgment and decree dated August 9, 1963 of the Madras High Court in L.P.A. No. 45 of 1962. A. V. Narayanaswami Iyer and section Venkatakrishnan, for the appellant. A. K. Sen, N. Natesan and R. Ganpathy Iyer for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment and decree of the Madras High Court dated August 9, 1963 in Letters Patent Appeal No. 45 of 1962. 119 The suit which is the subject matter of this appeal was filed by the Tirunagar Panchayat, hereinafter called the 'Panchayat ', against the Madurai Co operative House Construction Society (hereinafter called the 'Society ') in the District Munsif 's Court of Tirumangalam. The Tirunagar Colony has been formed by the Society. The Colony consists of about 300 houses and its total population exceeds 1,500. At its inception the colony was within the jurisdiction of the Tirupparakundram Panchayat. On February 21, 1955 the Tirunagar colony was excluded from Tirupparankundram Pan chayat and was declared as a separate village and was constituted as a separate Panchayat known as Tirunagar Panchayat. In the formation of the colony the Society has laid out and set apart and formed public roads, parks, play grounds and other public common places. There was a change in the Board of Directors of the. defendant Society and as a consequence of this change the Society passed a resolution on July 23, 1956 cancelling its previous resolution handing over the roads, streets and scavenging arrangements to the Panchayat. The Panchayat therefore filed a suit O.S. 38 of 1957, in the District Munsif 's Court of Tirumengalam for an injunction restraining the Society and its servants from obstructing and interfering with its lawful exercise of statutory duties relating to the roads and streets in Tirunagar and cleaning of latrines, public and private, lighting the houses and roads and making arrangements for the civic needs of the village of Tirunagar. The Society contested the suit on the ground that the constitution of the Panchayat was illegal as the provisions of the Madras Village Panchayats Act (Madras Act 10 of 1950), hereinafter to be called the 'Act ', had not been complied with. The Society also contended that the public cannot use the roads or streets as a matter of right, that the entire colony was a closed one and no outsider except the members of the Society had the right to enter the colony and that the Parks, central oval, play grounds and open spaces were the exclusive properties of the Society. The contentions of the Society were all over ruled by the trial court and a permanent injunction was granted to the plaintiff Panchayat, as prayed for. The decision of the trial court was affirmed by the Subordinate Judge of Madurai in A.S. 92 of 1958. The Society took the matter in Second Appeal to the High Court. The appeal was partly allowed by Ramakrishnan,J. who held that the streets and roads in Tirunagar colony alone would vest in the Panchayat and that the injunction passed by the lower appellate court should be confined only to streets and roads in the colony and should not be extended to any other place like the parks, oval park, play grounds, schools, library or club and such other amenities which the Society had provided for the residents of the colony. The decision of Ramakrishnan, J. was affirmed by the High Court in Letters Patent Appeal and the injunction granted by the lower courts was accordingly Confined to roads and streets and the cleaning of public and private latrines, and the decree of the lower courts was set aside so far as the injunction related to the parks. play grounds, bus stand and other public places. 120 The question presented for determination in this appeal is whether there is a statutory vesting in the panchayat of the parks, play grounds, schools, libraries and other public places which the Society provided for its members and whether the Panchayat is entitled to a permanent injunction restraining the Society and its servants in the manner decreed by the trial court. On behalf of the appellant reference was made to sections 56 and 58 of the Act relating to vesting of the property in the Panchayat. Section 56 of the Act reads as follows: "56. (1) All public roads in any village (other than district roads and roads which are classified by the Government as national or State highways), shall vest in the panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drawings works tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto. Section 58 is to the following effect: "Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation shall vest in the panchayat and be administered by it for the benefit of the villagers or holders aforesaid. " The rules framed under the Co operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places etc. should be made in the layout. Reference was made, on behalf of the appellant, to the layout plan exhibit A 44 for the Tirunagar Housing colony. There is evidence in this case that the Government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc. It was submitted on behalf of the appellant that the parks, play grounds, hospitals, schools etc. of the Tirunagar Housing Colony would vest in the Panchayat under section 58 of the Act. We do not consider that there is any justification for this argument. Under section 56 of the Act all 'public roads ' in any village shall vest in the Panchayat together with all, pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise. Under section 2(20) of the Act a ` public road ' means "any street, road, square, court, alley, passage, cart track, footpath or riding path, over which the public have a 121 right of way". Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property or income which by custom belongs to the villagers in common, or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat. The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting section 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or of lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description. Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that section 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom. It was argued on behalf of the appellant that if parks or play grounds or markets had been. dedicated to the public the Panchayat would acquire title to such properties under section 58 of the Act. We do not think that dedication is a relevant circumstance in considering the scope and meaning of section 58 of the Act. In the enactment of this section the legislature did riot contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact of such dedication. What is required by section 58 for the ' purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under section 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income ad ministered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village. In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of section 58 of the Act. It cannot be supposed that such a startling and unjust result was contemplated by the, 122 legislature in enacting section 58. We are accordingly of the opinion that the scope of section 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony. For these reasons we hold that the judgment and decree of the High Court in Letters Patent Appeal No. 45 of 1962 is correct and this appeal must be dismissed with costs. Appeal dismissed. [/INST]The assessees carried on business in the State of Madras and were registered dealers under the . In proceedings for assessment for central sales tax for the year 1957 58 the assessees claimed that they were liable to pay tax at the concessional rate of tax on the turnover under sec. 8(1) of the Act where sales were made by them to registered purchasing dealers who furnished declaration in Form 'C". The common question considered in these appeals was: When a purchasing dealer in one State furnishes in Form 'C ' prescribed under the Central Sales Tax (Registration & Turnover) Rules, 1957, to the selling dealer in another State a declaration, certifying that the goods ordered, purchased or supplied are covered by the certificate of registration obtained by the purchasing dealer in Form 'B ' prescribed under r. 5(1) of the Central Sales Tax (Regis tration & Turnover) Rule. ,, 1957, and that the goods are intended for resale, or for use in manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale, and that declaration is produced by the selling dealer, is it open to the Sales Tax authority under the to deny to the selling dealer the benefit of concessional rates under section 8(1) of the , on the view that the certificate in Form 'C ' mentions more purposes than one for which the goods are intended to be used, or that the goods are incapable of being used for the purpose for which they are declared to be purchased, or that the goods are applied for some other purpose not mentioned in the certificate in Form 'C '? HELD: The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only, even though under his certificate of registration in Form 'B ' he is entitled to purchase goods of the classes mentioned in section 8(3) (b) for more purposes than one. When the purchasing dealer furnishes a certificate in Form C without striking out any of the four alternatives, it is a representation that the goods purchased are intended to be usedfor all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules. The Sales Tax Officer may scrutinise the certificate to find out whether it is genuine and may also examine the registration certificate of the purchasing dealer. to see if the goods are covered by it. But it is not for him to hold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by the purchasing dealer for any of the purpose mentioned in Form 'C '. or whether they should have been specified in the registration certificate or even that the goods purchased have in fact not been used for the purpose declared in the certificate. [2O6 B D] 199 It is contemplated in sec. 7 and the Rules that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form 'E ' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax. [206 G 207 B]. Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes, Bihar & Others 16 S.T.C. 259 and J.K. Cotton Spinning Another 16 S.T.C. 563, referred to. </s>

<s>[INST] Summarize the judgementNo. 95 of 1964. Petition under article 32 of the Constitution for enforcement of fundamental rights. T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bhadur for the petitioner. V. P. Gopala Nambiar, Advocate General for the State of Kerala and V. A. Seyid Muhammad, for the respondent. The Judgment of the Court was delivered by Subba Rao, J. This is a petition under article 32 of the Constitution for issuing an appropriate writ to quash the order and notification dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner 's right in the property comprised in survey Nos. 646 to 650 in Trivendrum City. Kizhakke Kottaram (i.e., Eastern Palace), 2 acres and 57 cents. in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out houses, the surrounding well on all sides, gates and all appurtenant, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore, Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner. The petitioner 's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of the same. On October 3, 1963, the Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn., purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. ( 193637 A.D.) Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected monument. Under that order the said are described as being situated, among others, in the aforesaid survey numbers also. Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation The petitioner, alleging that the part of the said walls situate in the said. survey numbers belonged to him and he was in possession thereof and that the said notification infringed his fundamental right under article 19(1) (f) of the Constitution, filed the present writ petition. 870 The State filed a counter affidavit in which it admitted that the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wan which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore Cochin, and later on Kerala, Government. It was further alleged that though the said wan was part of the historic fort wall, the petitioner deliberately "intermeddled" with it. In short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it. It is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately. The learned Advocate General of Kerala raised a preliminary objection to the maintainability of the application on the ground that the petition is barred by the principle of res judicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed. The petitioner filed O.P. No. 1502 of 1960 in the High Court of Kerala at Emakulam for a relief similar to that now sought in this petition. The said petition came up before Vaidialingam, J., who dismissed that petition on the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under article 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit. When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court. It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner 's contentions, but dismissed the petition for the reason that the petitioner had an effective remedy by way of a suit. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right. If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it. In that context the doctrine of res judicata may be invoked. But where there is no such decision at all, there is no scope to call in its aid. We, therefore, reject this contention. 871 The next question is whether the petitioner has any funda mental right in respect of the wall in dispute within the meaning of article 19(1) (f) of the Constitution. The Sale deed under which the petitioner has purchased the Eastern Palace from the Maharaja is filed along with the petition as Annexure A 2. Under the said sale deed, dated January 7, 1959, the Maharaja sold the Eastern Palace situate in survey Nos. 646 to 650, 2 acres and 57 cents, in extent, to the petitioner. The outer compound walls of the said Palace building were also expressly conveyed under the sale deed. In the schedule of properties annexed to the sale deed the eastern boundary is given as a road. Prima facie, therefore, the sale deed establishes that the Maharaja conveyed the eastern wall of the building abutting the road to the petitioner. In the counter affidavit the State, while admitting the title of the Maharaja to the Eastern Palace and the execution of the sale deed by him conveying the said Palace to the petitioner, asserted that the disputed wall is part of the historic Fort wall. According to the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort wall and the disputed wall is a part of it. In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon. , the Memoir of the Survey of Travancore and Cochin States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962. The said extracts describe the history of the Fort wall. It is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall. We are, therefore, withholding, our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof. Indeed, the fact that he is in possession has been admitted by the State in its counter affidavit. It is stated therein that the petitioner has "intermeddled" with the wall. The petitioner has possessory title in the wall and is, therefore entitled to be protected against interference with that right without the sanction of law. The next question is whether the Travancore Ancient Monu ments. Preservation Regulation (Regulation 1 of 1112/M.E.) ceased to be law in the State of Kerala and, therefore, the said notification issued thereunder had no legal force. It was contended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, i.e., the Ancient Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the said Up./65 9 872 Act covered the same field occupied by the State Act, or at any rate the Said Regulation was impliedly repealed by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951) and the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). To appreciate this contention it would be convenient at the outset to notice the relevant legislative fields allotted to the Central and State Legislatures by the entries in the three Lists of the Seventh Schedule to the Constitution. The following are the relevant entries in the said Schedule : Entry 67 of List 1 (Union List) Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance. Entry 12 of List II (State List) Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance. Entry 40 of List III (Concurrent List) Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance. It will be noticed that by reason of the said entries Parliament could only make law with respect to ancient and historical monuments and archaeological sites and remains declared by Parliament to be of national importance. Where the Parliament has not declared them to be of any national importance, the State Legislature has exclusive power to make law in respect of ancient and historical monuments and records and both Parliament and the State Legislature can make laws subject to the other constitutional provisions in respect of archaeological sites and remains. Regulation 1 of 1112 M.E. is of the year 1936 A.D. It was a State law and it is not disputed that it was validly made at the time it was passed. After the Travancore Cochin State was formed, under the Travancore Cochin Administration and Application of Law Act, 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of Travancore were extended to that part of the area of the new State which before the appointed day 873 formed the territory of the State of Travancore. The result was that the said Regulation continued to be in force in the 'Travancore area of the new State. Ile Part B States (Laws) Act, 1951 (Act No. III of 1951) was made by Parliament; and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore Cochin. A comparative study of the two Acts, i.e., the Ancient Monuments Preservation Act, 1904, and the Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that they practically covered the same field. If there was nothing more, it may be contended that the State Act was impliedly repealed by the Central Act. But section 3 of the Part B States (Laws) Act, 1951, made the application of the Central Act to the State subject to an important condition. The said section 3 reads : "The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said Acts and Ordinances shall, as from the appointed day, and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extent clause thereof as so amended." The condition is that the said Act shall relate to matters with respect to which Parliament has power to make laws. The question, therefore, is whether Parliament can make a law in respect of ancient monuments with respect whereof the State had made the impugned Regulation. As we have pointed out earlier, the Parliament can make a law in respect of ancient and historical monuments and records declared by or under law made by it to be of national importance, but the Central Act of 1904 did not embody any declaration to that effect. Therefore, the Central Act could not enter the field occupied by the State Legislature under List II. If so, it follows that the State Act held the field notwithstanding the fact that the Central Act was extended to the State area. Nor can the learned counsel for the petitioner call in aid the, Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951), to sustain his argument. That Act applied to ancient and historical monuments referred to or specified in Part 1 of the Schedule thereto which had been declared to be of national importance. In Part 1 of the Schedule to the said Act 874 certain monuments in the District of Trichur in the Travancore Cochin State were specified. The monument in question was not included in the said Schedule. The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951. The State Act, therefore, survived even after the passing of the said Central Act. The next Central Act is the Ancient Monuments and Archaeo logical Sites and Remains Act, 1958 (Act XXIV of 1958). It repealed the Central Act LXXI of 1951. Under section 3 thereof all ancient and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act. Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under section 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance. If so, that Act also did not replace the State Act in regard to the monument in question. For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid. The next argument of the learned counsel may be briefly stated thus : The disputed wall is not an ancient monument, but an archaeological site or remains; the said matter is covered by entry 40 of the Concurrent List (List 111) of the Seventh Schedule to the Constitution: when Act VII of 1904 was extended by Part B States (Laws) Act III of 1951 to the Travancore area, it occupied practically the entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act. Assuming that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains. The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M.E.) and that in the Central Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts 875 apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both on which we do not express any opinion that State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act. But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monument is good, as we have held it to be, the impugned notification was validly issued thereunder. The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments are archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List. The dictionary meaning of the two expressions also brings out the distinction between the two concepts. "Monument" is derived from monere, which means to remind, to warn. "Monu ment" means, among others, "a structure surviving from a former period" whereas "archaeology" is the scientific study of the life and culture of ancient peoples. Archaeological site or remains, therefore, is a site or remains which could be explored in order. to study the life and culture of the ancient peoples. The two expressions, therefore, bear different meanings. Though the demarcating line may be thin in a rare case, the distinction is clear. The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument. The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property. He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act. Nor did he argue before the High Court to that effect. In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid. The present argument is only an afterthought. The extracts given in the counter affidavit filed by the State from the relevant Manuals and other books and documents show 876 that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period. For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under section 3 of the State Regulation 1 of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall. Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder. In this view, it is not necessary to express our opinion on the question whether article 363 of the Constitution is a bar to the maintainability of the petition. In the result, the petition fails and is dismissed with costs. Petition dismissed. [/INST]Appellant No. 1 was convicted of an offence under section 494 I.P.C. (and appellant No. 2 of abetting him) for going through a marriage which was, void by reason of its taking place during the life time of a previous wife. It was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through. On the other hand it was urged by the State that for the commission of an offence under section 494, it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life time of the first wife would commit the offence; and that in any event, in the present case the rites necessary for a 'Gandharva ' form of marriage, as modified by custom prevailing among Maharashtrians, had been duly observed. HELD: (i) Prima facie, the expression 'whoever marries ' in section 494 must mean 'whoever marries validly ' or 'whoever marries and whose marriage is a valid one. If a marriage is not a valid one according to the law applicable to the parties, no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying, [839 C D] (ii) For a marriage between two Hindus to be void by virtue of section 17 of the , two conditions are required to be satisfied, i.e. (a) the marriage is solemnised after the Act; and (b) at the date of such marriage, either party has a spouse living. Unless the mar riage is celebrated or performed with proper ceremonies and due form, it cannot be said to be 'solemnised ' within the meaning of section 17. Merely going through certain ceremonies, with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom. [839 G H; 840 A C] (iii) The two ceremonies essential to the validity of a Hindu marriage, i.e. invocation before the sacred fire and sapatapadi, are also a requisite part of a 'Gandharva ' marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular community or caste. It was not disputed that in the present case these two ceremonies were not performed when the appellant No. 1 married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom. The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable. [840 H: 84 A C; 843 E G] 838 Mullas Hindu Law, 12th Edn. 605 and 615, relied upon. (iv) The facts that the two essential ceremonies may not have been performed for a period of five or seven years could not be said to have established a custom as contemplated by section 3(a) of the . [843 C E] </s>

<s>[INST] Summarize the judgementAppeal No. 1308 of 1970. Appeal by special leave from the order dated September 8. 1970 of the Calcutta High Court in Income Tax Reference No. 50 of 1971. N. A. Palkhivala, Veda Vyasa, T. A. Ramachandran and D. N. Gupta, for the appellant. Y. section Desai, section K. A iyar and H. D. Sharma, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from an order of the Calcutta High Court directing the Income tax Appellate Tribunal, 'B ' Branch, Calcutta, to draw a statement of case relating to four questions of law which, it was stated, arose out of the order of the Tribunal in the matter of assessment of the appellant which was the assessee in respect of the assessment year 1962 63. The Appellate Tribunal had rejected the application of the Commissioner of Income tax requiring it to refer those questions to the High Court. The High Court, on being moved, issued a rule nisi and then made it absolute after full arguments without giving any reasons, whatsoever. 140 The assessee is a 100% subsidiary of Imperial Chemical In dustries Ltd., incorporated in the United Kingdom (hereinafter referred to as I.C.I. for convenience). I.C.I. advanced large amounts by way of loans to the assessee from time to time. This, it was claimed, was done for subscribing to shares in three Indian Companies called Indian Explosives Ltd., Alkalai & Chemical Corporation of India and Atic Industries Private Ltd., (hereinafter called as I.E.L., A.C.C.I and ATIC respectively). Subsequently the assessee transferred the shares in the aforesaid companies at par to I.C.I. in satisfaction of the loans advanced by that company. The Income tax Officer applied section 52 of the Income tax Act, 1961 (hereinafter called the 'Act ') and assessed the assessee to capital gains. The Appellate Assistant Commissioner took the contrary view and held that on the facts which had been established, the assessee was not liable to capital gains under the aforesaid section. The Tribunal upheld the decision of the Appellate Assistant Commissioner by a detailed and well reasoned order. Broadly, the case of the assessee was that I.C.I. wanted to make investments in India in sterling currency. The assessee was already in existence but the other three companies which have been mentioned, were incorporated later. I.C.I. devised a scheme by which it could make the investment as desired by it and by which it could also take advantage of the tax relief which could be availed of by the new enterprises under section 15(C) and 56.(A) of the Income tax Act, 1922. The scheme in short was that I.C.I. would arrange to let the assessee hold shares in the three com panies by investing the money which was to be given by I.C.I. to the assessee. The modus operandi was that I.C.T. would give that money by way of loans to the assessee who agreed that the shares in the three companies would be transferred to I.C.I. in satisfaction of the loans at par or issue price as and when desired by I.C.I. All this was done after negotiations with the concerned Department of the Government of India at the highest level and with the approval of the Reserve Bank of India. The entire scheme was conceived and was put into operation prior to 30th November 1956 when the Finance Bill was introduced reimposing capital gains tax which had remained abolished for certain years. There was a provision for charging interest by the I.C.I. from the assessee at a rate not exceeding 1/2% above the Indian Bank rate which came to 51% per annum but the interest was not to exceed in any case the dividends received by the assessee from those shares. It was claimed on behalf of the assessee that this arrangement was advantageous both to I.C.I. and the assessee, I.C.I. having taken the risk (of depreciation in shares or otherwise) attached to the new business pioneering adventures, ensured that capital appreciation of the shares, if 'any, also went 141 to itself. The assessee did not suffer any disadvantage because it had to pay no interest if no dividend was received and it could keep and get the benefit of any dividend in excess of 5 1/2%. As a result of I.C.I. investments being held through the assessee instead of directly, I.C.I. achieved an advantage of saving tax in U.K. amounting to pound 68,000 in the relevant years. In 1959 the structure of Indian taxation regarding the grossing up of dividends was radically changed and by the Finance Act 1959, the system of grossing up of dividends (under section 16(2) and 18(5) of 1922 Act) was abolished and intercorporate dividends became liable to income tax at each stage. Thus, the dividends passing from the three companies through the assessee to I.C.I. became liable to tax stages. This affected the net return of I.C.I. on its investments in the three companies substantially. In these circumstances, it was decided by I.C.I. that the investments in the three companies should 'he held by it directly. For that reason it called upon the assessee in February 1961 to transfer to it the aforesaid shares in the three companies at the issue price in satisfaction of the sterling loans in accordance with the previous agreements. The approval of the Reserve Bank to these transfers was received in February 1961 and the transfers were made in March/April 1961. According to the assessee there was no question of the transfer of shares having been affected with the object of avoidance or reduction of the liability of the assessee to capital gains which alone could attract the applicability of section 52 of the Act. Section 52 is in the following terms "Consideration for transfer in cases of under statement: Where the person who acquires a capital asset from an assessee is directly or indirectly connected with the assessee and the Income tax Officer has reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under section 45, the full value of the consideration for the transfer shall, with the previous approval of the Inspecting Asstt. Commissioner, be taken to be the fair market value of the capital asset on the date of the transfer". The necessary ingredients of the section are (i)there should be a direct or indirect connection between the person who acquires a capital asset and the assessee; (ii) the Income tax Officer should have reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee to capital gains; (iii) if the first two conditions are satisfied then the full value of consideration for the 142 transfer can be taken to be the fair market value of the capital asset on the date of the transfer. As regards the first requirement, that was admittedly satis fied in the present case. The second requirement could be satisfied only if there was any cogent material on which the Income tax Officer could have reason to believe that the transfers were effected with the object of avoidance and reduction of liability to capital gains. It is abundantly clear that the intention with which a particular transfer is made and the object which is to be achieved by such transfer is essentially a question of fact the conclusion relating to which is to be arrived at on a consideration of the relevant material. In other words, before the Income tax Officer can have any reason to believe that a transfer was effected with the object mentioned in the section facts must exist showing that the object was to avoid or reduce the liability to capital gains. The Tribunal examined fully the correspondence and the other material with regard to each of the three Indian companies in which the investment had been made of the money advanced by I.C.I. to the assessee. We may briefly notice the discussion relating to each company. It was in or about 1949 that I.C.I. was asked by the Government of India to consider the manufacture of commercial Lasting High Explosives in India. Negotiations advanced more towards October 1953 when the representatives of I.C.I. met the officials of the Government of India. The Tribunal referred to the minutes of the meeting held on October 1, 1953 as also on the 6th October 1953. In the final draft of the Declaration of Intention dated November 5. 1953, it was mentioned that the Government had agreed that if T.C.I. made a loan to the assessee the latter would hold the shares in I.E.L. and that the loan "may be repaid by a transfer of the shares to I.C.I. at any time". On 21st December 1954, the assessee applied to the Reserve Bank of India for formal sanction for borrowing Rs. 160 lakhs from I.C.I. for the purchase of shares in I.E.L. in terms of the agreement dated November 5, 1953. It was stated in the letter that I.C.I. would charge no interest until such time as the shares began to yield dividends. The loans were advanced from 30th September 1954 to 30th June 1957 by the I.C.I. to the assessee of the equivalent of Rs. 160 lakhs in Sterling. The other correspondence relating to the aforesaid amount was also noticed by the Tribunal. In 1958 there was a Rights Issue by I.E.L. I.C.I. agreed to give a loan of Rs. 80 lakhs to the assessee to cover the Sterling requirement of I.E.L. The assessee was to take up shares of that amount. The terms of the loan were that I.C.I. had the right to acquire at any time the shares held by the assessee in I.E.L. 143 at par in satisfaction of the loan and the rate of interest payable on the loan was to be I% above the Indian Bank rate. This was followed by other correspondence and a resolution which was recorded on 30 9 1958 containing terms of the second loan of Rs. 80,00,000/ . It is not necessary to refer to the other correspondence looked into by the Tribunal with regard to that loan. On 15 2 1961 the assessee was called upon by I.C.I. to transfer the investments in satisfaction of the loans. After the sanction was obtained from the Reserve Bank of India, the shares were transferred at par. The Tribunal referred to the undisputed facts relating to the circumstances in which the scheme for advancing the loan to the assessee for investment in I.E.L. came to be mooted and was ultimately approved by the Government. This is what the Tribunal said : "The above background would show that the idea was not to make the assessee the real beneficial owner of the shares. The fact that the shares should be held only for a time beneficially by the assessee is clear from the "Declaration of Intention" dated 5 11 1953". Before the Tribunal the counsel for the Department had accepted the position that if there was an arrangement or agreement before the reintroduction of capital gains tax he would have no case. According to him, until the transfers were actually made of the shares, there was no agreement on which the parties could have gone to court in order to obtain the share transfers at par in favour of I.C.I. The Tribunal proceeded first to examine whether there was any kind of understanding between the assessee and I.C.I. regarding the transfer of shares at par. After recapitulating the correspondence and the relevant facts, the Tribunal came to the following conclusion: "Taking this along with the minutes of the meeting with the officials of the Government of India, in October 1953, it is clear that the whole idea of I.C.I. throughout was to make some funds available to the assessee so that the shares could be acquired in its name and that the shares could be transferred to I.C.I. as and when it demanded". It was, however, stated by the Tribunal that taking into account the correspondence and the documents referred to earlier it was satisfied with the assessee 's case that the transfer of shares to London at issue price or at par was throughout the basis of the advances of loans to the assessee. It is necessary to reproduce paragraph 31 of the order of the Tribunal : "In October 1953, there was no mention of any capital gains tax being revived. At that time the asses 144 see could not have had any idea of avoiding or reducing any liability to capital gains tax. The learned counsel for the department laid some emphasis on the fact that there was no enforceable arrangement. The question as to whether there was an enforceable arrangement or not is not really material. What we have to find out is whether the object in putting through these transactions of taking over the shares at par or at issue price was one of avoidance or reduction of liability to capital gains tax. That object does not get established by the mere absence of an enforceable arrangement. Having regard to the assessee being the subsidiary of I.C.I., there is nothing surprising about the arrangement not being so formal or not being put through after complying with all the necessary legal formalities. The absence of formal agreement is thus understandable in this context and cannot by itself suggest anything in favour of the department. Businessmen are not always motivated by legalistic considerations. Even taking that the arrangement was only binding morally and not legally, still so long as the assessee wanted to fulfil a moral obligation and had not the capital gains tax in mind, it cannot be said that the transaction was entered into with the object of avoidance or reduction of liability to capital gains tax". The Tribunal proceeded to say "We have to find out the object of the, transaction. It is removed in point of time from the result. In such a case one cannot try to infer the object from the results. We really have to put ourselves at a point of time when the transaction was conceived. Taking the materials before us, we consider that there is nothing to suggest that the parties had the capital gains tax in their mind in 1953 and later when they put through the aforesaid transactions. We have, therefore, to hold that the factual requisites of section 52 have not been established here". In dealing with the second Company, namely, A.C.C.I it was pointed out by the Tribunal that the scheme for manufactur ing Polythene was placed before the Government of India by a letter of the assessee dated 13 12 1955 addressed to Mr. H. V. R. lengar, Secretary, Minister of Commerce & Industry, in which it was specifically stated that to enable the assessee to subscribe for the new shares I.C.I. would lend the subscription monies to the assessee on the understanding that at a later date I.C.I. could acquire at the issue price these new shares in satisfaction of its 145 loan. The Tribunal dealt with all the relevant facts relating to the loan advanced to A.C.C.I. including those stated in the affidavits of P. T. Manzies dated 17 8 1966 and U. R. Newbery dated 10 1 1967 and considered that the transaction relating to this Company was not in any way different from those relating to the I.P. L. ATIC, the third Company was incorporated primarily for the manufacture of certain Dye stuffs. On 29 12 1955 I.C.I. agreed to advance Rs. 25 lakhs as loan to the assessee. The shares acquired under the loan could be transferred to I.C.I. on request by the latter at the issue price. I.C.I. waived its right to interest on the loan until the commencement of the period in respect of which ATIC paid the dividend. There was a further loan of Rs. 35,00,000 on the same terms. These shares were age subsequently required to be transferred to I.C.I. in February 1961. The Appellate Assistant Commissioner had referred to the affidavits which had been filed on behalf of the assessee and had mentioned that the Department had not cross examined the deponents. Before the Tribunal the counsel for the Department stated that he accepted the affidavits as correct in so far as facts were concerned but he only disputed the inferences therefrom. The Tribunal in this connection observed: "In our opinion, once the facts mentioned therein are taken as correct, the inference that the transaction was not for *he purpose of avoiding or reducing liability to capital gains tax has to follow". Finally the Tribunal, as stated before, confirmed the decision of the Appellate Assistant Commissioner that the material on record did not justify the conclusion of the Income tax Officer that the object of the transfer of the shares of all the three Companies by the assessee to I.C.I. was the avoidance of liability to capital gains which would attract the applicability of section 52 of the Act. The Commissioner of Income tax asked for a reference on six questions. The Tribunal again examined the further contentions of the Department in its order dated 28 7 1969 by which it declined to make the reference on the ground that no question of law arose out of the order of the Appellate Tribunal, Only four questions appear to have been pressed for being referred. As regards question No. 1 (which was No. 3 before the Tribunal) it was pointed out that it proceeded on the basis that there was some dispute about the construction of the correspondence or documents. The Tribunal observed that there was no such dispute and it had not been suggested that a particular expression in any letter or document had been wrongly construed. Regarding question No. 2 (which was No. 4 before the Tribunal), the Departmental representative was asked to particularise the docu 146 ments or evidence omitted from consideration. He referred to certain documents and evidence which according to him had not been considered by the Tribunal. The Tribunal made it cleat that all the relevant materials which had been referred to had been considered by it. These materials were distributed over four bulky volumes of typed records and, therefore, each document could not have been mentioned in the order. Nothing relevant was actually over looked. At any rate the documents on which particular reliance was placed on behalf of the Department were considered and the Tribunal observed that the grievance of omission of materials from consideration related to irrelevant matters. As regards (the other two questions, the Tribunal observed that the charge of perversity was only a disparate attempt at extracting a question of law where, none existed and that the object or intention of an assessee was always a question of fact. It was a factual inference to be drawn from other facts. It was pointed out that on the construction of section 52, the parties had not joined, any issue. We may now mention the four questions which the High Court directed to be referred : 1. "whether on the facts and in +he circumstances of the case and on a proper construction of the documents referred to and/or considered by it the Tribunal was right in arriving at the finding that the transfer of the shares to Imperial Chemical Industries Ltd., London at the issue price or par was throughout the basis of the advance of loans to the assessee ? 2. Whether, in arriving at the said finding the Tribunal misdirected itself in law in basing the said finding on evidence covering some matters only and ignoring, evidence on other essential matters ? 3. Whether, on the facts and in +,he circumstances of the case and particularly in view of the finding that there was no enforceable agreement making it obligatory upon the assessee to transfer the shares to Imperial Chemical Industries Ltd., London, at par or issue price the conclusion of the Tribunal that the transfer of the shares by the assessee to the latter company at par was not effected with the object of avoidance or reduction of the liability of the assessee to capital gains tax was unreasonable or perverse ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding, that 147 section 52 of the Income tax Act, 1961, was not applicable to the facts of the case ? On the analysis of section 52 of the Act made by us at a previous stage and the clear, cogent and precise findings and conclusions of the Appellate Tribunal, we are wholly unable to comprehend, how any question of law of the nature sought to be referred arose; or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did not choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The jurisdiction in the matter of reference can be exercised (i) when the point for determina tion is a pure question of law such 'as construction of a statute or document of title; (ii) when the point for determination is a mixed question of law and fact. While the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law, (iii) a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic facts will not alter its character as one of fact (See Sree Meenakashi Mills Ltd. vs, Commissioner of Income tax, Madras(1). In that case it was held that there was no question of construction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the ap pellant in the names of the intermediaries were genuine, and if not, to whom the goods were sold 'and for what price, were all questions of fact. Their determination did not involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was no question which could be referred to the Court under section 66(1) of the Income tax Act 1922. The same principles will apply when a reference is sought under section 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was not made with the intention or object of avoidance or reduction of liability to capital gains were not questions of fact and did not depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did not involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It (1) 148 is true that the amount involved is very large but that cannot Justify a reference as under section 256 of the Act neither the Appellate Tribunal could make a reference nor could the High Court direct the reference to be made to it by the Tribunal on pure questions ,of fact. The learned counsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I.C.I. for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object under lying the transfer of the shares to I.C.I. by the assessee. Once the Tribunal came to the conclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I.C.I. of making the loans by the latter to the former for being invested in the three companies and that the shares would be transferred at par by the assessee to I.C.I. whenever desired, the applicability of section 52 could not be attracted as the same depended on certain facts which must exist or must be found and which had not been so found by the Tribunal. In the result the appeal is allowed and the order of the High ,Court is hereby set aside. The assessee shall be entitled to its costs in this Court. V.P.S. Appeal allowed. [/INST]Under section 32 of the U.P. Cooperative Societies Act, 1965 the business to be conducted at the annual general meeting of a society includes inter alia election of the committee of management of the society. Under Rule 409 of the Act namely the Cooperative Societies Rules, 1967 a Cooperative society may, for the purpose of the election of the Committee of management, with the previous sanction of the Registrar of Cooperative Societies (a) divide its membership into different groups on territorial or any other rational basis, and (b) also specify the number or proportion of the members of the committee of management in such a manner that different arm or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. On 5 November 1969 the Registrar issued a circular interpreting Rule 409 and laid down the principle that "all the members of the general body" of the cooperative society would "exercise their right of vote in filling all the seats of elected Directors". The elections in the cooperative societies concerned in the present appeals were held according to the aforesaid directions given by the Registrar. The elections were challenged and set aside in proceedings under the Act. On the question whether the circular interpreting Rule 409 issued by the Registrar was valid, this Court, HELD : Under rule 409 the principal matters to be kept in the forefront are these. First, the society will divide the constituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative re quirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a constituency the persons falling within the constituency will satisfy that test. Secondly, the society will specify the proportion of members of the committee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interest will obtain representation. If membership is on territorial basis the different areas will get representation according to the interest of such territories. Again, if occupational or professional tests are created for dividing groups such interests will have to be given suitable representation. Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffered from the vice of giving the members the right of casting vote in constituencies to which they did not belong. This strikes at the basic root of the fight of representation. This also reads as under the principle of one member one vote which is made a role of law in the Act. [155 E G] 150 The words 'affairs of the society ' in section 20 cannot be equated with the constituencies to give each member a right to vote for each constituency. That would defeat the purpose of section 20 and rule 409. The basic idea of representation for each constituency depends on the mandate of the respective constituency and not of other constituencies. That is why section 20 of the Act speaks of one member having one vote irrespective of shareholding. It means equality of votes of members. [155 H] The impeached circular of the Registrar was illegal and unwarranted. The Registrar has no power to interpret rule 409. The Registrar has equally no power to express view with regard to the conduct of the election and regulate the voting rights by giving members more than one vote. The society is to frame rules for elections. The rules and the bye laws cannot be in derogation of the statute and statutory rules. At an election of members of the committee of management one member will have only one vote for the constituency to which he belongs. [156 E] The result was that the elections which were held following the circular of the Registrar were bad. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 4 of 1952. Appeal from the judgment and order of the High Court of Judicature for the Punjab at 698 Simla dated 24th May, 1951, in Civil Writ No. 15 of 1951. M.L. Manekshaw (P. N. Bhagwati, with him) for the appellant. M.C. Setalvad, Attorny General for India (G. N. Joshi, with him) for the respondent. May 26. The Judgment of the Court was delivered by MAHAJAN J. This is an appeal from the judgment of the High Court of Judicature of the State of Punjab dated the 24th May, 1951, dismissing the petition filed by the appel lants for writs of certiorari, prohibition and mandamus against the respondent. Aboobaker Abdul Rahman, the father of the appellants, was ,possessed of considerable movable as well as immovable properties including a. cinema theatre, known as the Imperi al Cinema. situateat Bombay. Soon after the partition of India, he went to Pakistan and was in Karachi in the month of September, 1947, where he purchased certain properties in that month. On information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the Addi tional Custodian started proceedings under the Bombay Evacu ees (Administration of Property) Act, 1949, against Aboobak er in or about the month of July, 1949. During the pendency of the said proceedings, the Government of India Ordinance XXVII of 1949 came into force. Thereupon, on the 16th Decem ber, 1949, the Additional Custodian issued a notice to the said Aboobaker under section 7 of the Ordinance and a fur ther notice on the 11th January, 1950, to show cause why his property should not be declared to be evacuee property. Pursuant to the said notices an enquiry was held by the Additional Custodian of Evacuee Property who after recording the statement of the said Aboobaker and examining some other evidence produced by the said Tekchand Dolwani and taking into consideration the written statement filed by him, adjudicated on the 8th February, 1950, that 699 the said Aboobaker was not an evacuee. He, however, issued another notice to Aboobaker on the same day calling upon him to show cause why he should not be declared an intending evacuee under section 19 of the said Ordinance. On the 9th February, 1950, he adjudicated him as an intending evacuee. On the 31st March, 1950, Tekchand Dolwani being the informant and interested in the adjudication of the said Aboobaker as an evacuee, filed an appeal against the order of the 9th February to the respondent (The Custodian General of India) praying for an order declaring the said Aboobaker an evacuee and that he being the first informant should be allotted the said cinema. On the 18th April. 1950, the Ordinance was replaced by Act XXXI of 1950. The appeal was heard by the respondent in New Delhi on the 13th May. 1950. At the hearing it was urged on behalf of Aboobaker that he having been declared an intending evacuee and he having accepted that order, no appeal lay therefrom and that the said Tekchand Dolwani was not a person ag grieved by any order passed by the Additional Custodian and therefore had no locus standi to appeal under the provisions of section 24 of Ordinance XXVII of 1949. The hearing of the appeal was concluded on the lath May, 1951 and it is alleged in the written statement of the respondent that the order was dictated by him on the same day after the conclusion of the hearing and was also signed by him and it bore that date. Aboobaker suddenly died on the 14th May, 1950, which was a Sunday and the respondent pronounced the order written on the 13th to the counsel of Aboobaker on the 15th May, 1950. By this order the respond ent held that the appeal purporting to be from the order passed by the Additional Custodian on the 9th February, 1950, declaring the said Aboobaker an intending evacuee in effect and in substance was directed against the order made on the 8th February in the proceedings started under section 7 of the Ordinance declining to declare the said Aboobaker 's property as evacuee property. 700 He further held that the said Tekchand Dolwani was interest ed in the appeal and had locus standi to prefer it. Having overruled the preliminary objections raised by the appel lants, the hearing of the appeal was adjourned and further inquiry was directed to be made in the matter. Notices of the adjourned hearing of the appeal were given from time to time to the two appellants. On the 30th February, 1951, they were informed that the appeal would be heard on the 7th March, 1951. The two appellants allege that they are some of the heirs enti tled to the estate of the said Aboobaker. Two of his sons migrated to Pakistan and one of the appellants is his third son and the other appellant is his only daughter. Being aggrieved by the order of the respondent dated the lath May, 1950, the appellants filed a petition in the High Court of the State of Punjab at Simla on the 26th February, 1951, under article 226 of the Constitution, praying for a writ of certiorari for quashing and setting aside that order and for a writ of prohibition or mandamus directing the said respondent to forbear from proceeding with the hearing of the said appeal on the 7th March, 1951, or on any other date or dates. The appellants raised the following contentions in the petition: 1. That the appeal preferred by Tekchand Dolwani before the respondent was in terms an appeal against the order of the 9th February, 1950, and not an appeal against the conclusion reached on the 8th February, 1950, and inas much as the said order was made against Aboobaker and not in his favour, Tekchand had no right of appeal against the same and the respondent had no jurisdiction to entertain it or make any order therein. That Tekchand was not a person aggrieved by the order dated the 8th February, 1950, within the meaning of section 24 of the Ordinance and was not entitled to appeal against the said order and inasmuch as no appeal lay at his instance, the respondent had no jurisdiction to entertain it or make any order therein. 701 3. That after the death of Aboobaker on the 14th May, 1950, the respondent ceased to have jurisdiction to proceed with the hearing of the appeal or make any order therein. The High Court held that the order of the respondent pronounced on the 15th May, 1950, was not a nullity and the appeal preferred by Tekehand was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February, 1950, and that Tekchand was a person aggrieved within the meaning of section 24 of the Ordi nance. It accordingly dismissed the petition with costs but on the 27th June, 1950, granted him leave to appeal to this Court under article 133 of the Constitution. On the 30th July, 1951, during the pendency of the appeal in this Court, the respondent finally pronounced orders on the appeal of Tekchand and held that Aboobaker was an evacuee and his property was declared evacuee property. A petition under article 226 for quashing. this order is pending in the High Court of the State of Bombay. The learned counsel for the appellants canvassed the following points before us: 1. That the appeal to the respondent was against the order of the 9th and not against the order of the 8th, and as no appeal lay against the order of the 9th the respondent had no jurisdiction to hear it. That assuming that the appeal was preferred against the order of the 8th, that order was not an appealable order inasmuch as section 24 allows an appeal against an order declaring properties evacuee properties and not against any conclusion that a certain person is or is not an evacuee, and thus no appeal was Competent at all which could be heard by the respondent. That Tekchand was not a person aggrieved within the meaning of section 24 of the Ordinance and had no locus standi to prefer the appeal and the respondent had no juris diction to entertain it at his instance. 702 4. That the order pronounced on the 15th after the death of Aboobaker was a nullity. It is mentioned in the judgment of the High Court that Shri M.L. Manekshah conceded that the death of Aboobaker does 'not in any way affect the validity of the order pro nounced by the Custodian General on the 15th May, 1950. The learned counsel adopted practically the same attitude before us in view of the affidavit of the respondent in which it was affirmed that the order in question was dictated on the 13th May, 1950, and was signed on the same date. the High Court on the principle of Order XXII, Rule 6, Code of Civil Procedure, held that an order written but not pronounced could be pronounced even after the death of the party af fected. In these circumstances the last contention of the learned counsel does not require any further consideration and is rejected. The larger question that has been raised in the petition pending before the High Court of the State of Bombay that the properties of Aboobaker could not be declared evacuee properties after his death as they had devolved on his heirs was not raised in these proceedings and we have not been invited to decide it. That being so, the question is left open. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated the 13th May, 1950, a nullity, cannot be the subject matter of a writ of certiorari. It is plain that such a writ cannot be granted to quash the deci sion of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subjectmatter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some 703 particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course pre scribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be ques tions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M.R., in Reg. vs Commissioner Income Tax(1),, the formula enunciated above is quite plain but its application is often mislead ing. The learned Master of the Rolls classified the cases under two categories thus: "When an inferior court or tribunal or body which has to exercise the power of deciding facts, first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain stab of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal on body with a jurisdiction which includes the jurisdiction, to determine whether the preliminary state of facts exists as well as the jurisdiction, and on finding that it doe: exist, to proceed further or do something more. Wher (1) 21 Q .B DD. 313. 704 the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider what ever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribu nal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts. including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their juris diction. " The tribunal constituted to hear appeals under section 24 has been constituted in these terms: "Any person aggrieved by an order made under section 7, section 16, section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed (a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian; (b) to the Custodian General, where the original order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian. " Like all courts of appeal exercising general jurisdic tion in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to deter mine any points raised before it in the nature of prelimi nary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order 705 and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May, 1950, was right. We are further of the opinion that none of the contentions raised has any merit whatsoever. For a proper appraisal of the contention that Tekchand Dolwani is not a "person aggrieved" within the meaning of those words in section 24 of the Ordinance, it is necessary to refer to the rules made under the Ordinance. It is provided in rule S (5), that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property; the Custodian shall then either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce. In the proceedings before the Additional Custodian, Tekchand Dolwani filed a reply to the written statement of Aboobaker and adduced evidence in support of the stand taken by him that the property of Aboobaker was evacuee property. Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobaker was evacuee property and in view of the order of the Ministry of Rehabilitation he was, as a first informant, entitled to first consideration in the allotment of this property, the Additional Custodian was bound to hear him on the truth and validity of the information given by him. When a person is given a right to raise a contest in a certain matter and his contention is negatived, then 706 to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper. He is certain ly aggrieved by the order disallowing his contention. Sec tion 24 allows a right of appeal to any person aggrieved by an order made under section 7. The conclusion reached by the Additional Custodian on the 8th February, 1950, that Aboo baker was not an evacuee amounted to an order under section 7 and Tekchand therefore was a person aggrieved by that order. Section 43 bars the jurisdiction of the civil court in matters which fall within the jurisdiction of the Custo dian. In clause 1 (a) it provides as follows: "no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property . " It is clear therefore that the Additional Custodian has to find and adjudicate on the question whether a certain property is or is not evacuee property and whether a certain person is or is not an evacuee and such an adjudication falls within the ambit of section 7 of the Ordinance. Lord Esher M.R. in In re Lamb, Ex parte Board of Trade(1) observed as follows : "The meaning of the term 'person aggrieved ' was ex plained by this Court in Ex parte Official Receiver U). It was there determined that any person who makes an applica tion to a Court for a decision, or any person who. is brought before a Court to submit to a decision, is, if the decision goes against him, thereby a 'person aggrieved ' by that decision." Lord Justice Kay in the same judgment made the following observations: "The preliminary objection to the appeal is two/old: (1) It is said that the Board of 'trade are not 'persons aggrieved '. They are persons whom the court was bound to hear, If they wished to be heard, on the validity of this objection, and the decision has (1) (2) 707 been against them. How it can be said that they are not 'persons aggrieved ', by the decision, passes my understand ing. When two persons are in the position of litigants before the High Court, and the decision of the Court goes against one of them, how it can be said that he is not a 'person aggrieved ' by the decision, I cannot understand. I am clearly of opinion that the Board were 'persons ag grieved ' by this decision. Then (2) it is said that the decision is not an 'order '. When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order of the Court. " In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal. The next point urged was that the appeal had been pre ferred against the order of the 9th February and not against the order of the 8th and that the respondent had no juris diction to hear it. Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the compe tence of the respondent to decide and does not involve any question of jurisdiction whatsoever. Be that as it may. we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February. The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter. The only defect pointed out was in the description of the order attacked in appeal. It is well settled that such errors of description cannot be allowed to prejudice the right of a party. The two 708 orders of the 8th and 9th made on consecutive days, though under different provisions of the Ordinance, were inter linked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken. The last point raised before us was not taken in the High Court and therefore we have not the benefit of that court 's decision on the point. It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee, that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24. In our opinion, this contention is without force. Section 24 con fers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appeal able. In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word "evacuee" given in the Ordinance. Ii he comes within the ambit of the definition, then any property heldby him becomes evacuee property. The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee proper ty, or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudica tion under section 7 and is as such appealable. It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee, then he is not entitled to make any order whatsoever but has just to file the proceedings. This contention is unsound. When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead 709 evidence, then the decision of the court whether favourable or unfavourable to him has to take the form of an adjudica tion and necessarily amounts to an order. Reference in this connection may be made to the decision of the Federal Court in Rayarappan Nayanar vs Madhavi Amma(1) on an analogous,provision of the Code of Civil Procedure contained in Orders XL, Rule 1, and XLIII, Rule 1 (s). Order XLIII, Rule 1 (s) makes any order made under Order XL, Rule 1, appealable, while Order XL, Rule 1, only empowers the court to appoint a receiver. It was held that the order removing a receiver was appealable under Order XLIII, Rule 1, inas much as such an order fell within the ambit of Order XL, Rule 1, and the power of appointing a receiver included the power of removing or dismissing him. The present case stands on a higher footing. The power of granting a certain relief includes obviously the power of refusing that relief. In our opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobaker an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section, 24. The result is that this appeal fails and is dismissed with costs. Appeal dismissed. [/INST]The appellant, a private limited company, was incorporated in 1954 in the former Kotah State which had integrated with the United States of Rajasthan in 1949. The United States of Rajasthan became State of Rajasthan, a Part B State. The Indian Finance Act, 1950, made the Indian Income tax Act, 1922, applicable to Part B States with effect from April 1, 1950, whereupon Rajasthan became a taxable territory. The Income tax (Amendment) Act, 1953, amended section 14(2)(C) of the Indian Income tax Act, 1922. Thereupon the Income tax authorities sought to tax the profits and income of the appellant for the assessment year 1950 51 who claimed exemption under section 14(2)(C) of the Indian Income tax Act, 1922, as it stood before the amendment in 1953. The question for decision was whether in view of the decision of this Court in Madan Gopal 's case it was still open to the appellant to contend that the amendment operated from April 1, 1950 and that income accrued prior to April x, 1950, was still exempt although the exemption was withdrawn only from April 1, 1950. Held, that the withdrawal of the exemption in the assessment year 1950 51 conversely affected the income of the previous year 1949 50. The application of the Indian Income tax Act made Rajasthan a taxable territory subject to the Indian Income tax law and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made in section 14(2)(C) made the exemption in respect of liability to tax the income for the year 1949 50 to disappear as if it had never been granted and obliterated the exemption. The whole purpose and intent of the amendment was to reach this result from the assessment year 1950 51 onwards, and there could be no saving. The argument assumes the premise that the Income tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent nor warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re enacted by the new Act. 454 Union of India vs Madan Gopal Kabra, ; , referred. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1924 of 1990. From the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15 of 1979. 543 K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for the Appellants. T.S. Krishnamoorthy Iyer, P.S. Poti, section Balakrishnan, Deepak Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D. Nam boodiri and Irfan Ahmed for the Respondents. The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J. Special leave granted. The unsuccessful appellants herein have preferred this appeal against the judgment of the High Court of Kerala dated 6.8.1985 passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby the High Court dismissed the said appeal filed by the appellants. The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows: Othayath Gopalan Nambiar (since dead) and Othayath Lekshmy Amma (who is the first appellant herein) filed an Execution Application No. 556 of 1970 in Original Suit No. 817 of 1943 in the court of the Munsiff of Badagara under Section 13(B) of the Land Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to as the 'Act ') for restoration of possession of the properties mentioned in the schedule of the application, which were sold in court auction for arrears of rent in pursuance of the decree made in O.S. No. 817 of 1943.1t seems that during the pendency of the proceedings before the Munsiff, Othayath Gopalan Nambiar died and thereafter the first appellant 's son claiming to be the karnavan of the tavazhi got himself impleaded as the third petitioner in the said Execution Application, who is figuring as the second appellant herein. In order to decide the questions that arise for consid eration, certain salient and material facts may be recapitu lated. The suit, O.S. 'No. 817 of 1943 was filed for recov ery of arrears of rent of Rs.815 for the Malayalam years 1116 to 1118, corresponding to English era 1941 to 1943. There were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant were the defendants 2 and 3. A preliminary decree was passed on 26.5.1944 followed by the final decree on 29.11. The decree holder assigned the decree to another member of his family, who in turn assigned it to one Kunhikannan. The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the 544 property to sale. The sale took place on 26.11. One Thekkayil Kanaran who was the first Respondent in the Execu tion Application, i.e. the third Respondent herein purchased the property in the Court auction held on 26.11.1962, which sale was confirmed on 14.8. 1964 and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on 9.1. 1965 from the possession of the appellants. exhibit C 3 is the delivery account and report submitted by the Amin. The remaining extent of the property was in the possession of the sub tenants in respect of which there was resistence with which we are not concerned here. After the delivery has been effected, Gopalan Nambiar and the first appellant herein trespassed into the suit property. Therefore, the Court auction purchaser filed O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession. The suit was decreed as per the judgment exhibit B 16 dated 27.7.1966. exhibit B 15 is the decree. Ex B 49 dated 25.8.1966 and exhibit B 50 dated 22.8.1966 are the respective certified copies of the delivery account submit ted by the Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966. The auction purchaser, i.e. third re spondent in this appeal assigned portions of the property under sale deeds Exts. A2 and A3 dated 5.12.1966 to the 5th and 6th respondents in the Execution Application, who are the first and second respondent in this appeal. 1t is stated that while the first respondent is stranger, the second respondent is none other than the wife of the fourth re spondent. As we have pointed out earlier, this fourth re spondent is among the three respondents on whom the rights of Kunhikannan devolved. While it is so, Act 9 of 1967 came into force. So Gopa lan Nambiar and the first appellant filed Execution Applica tion No. 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit. While this E.A. was pending, Act 35 of 1969 tame into force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967. So the appellants filed E.A. 556/70 under Section 13 B of the Act for restoration of possession with a prayer that earlier deposit made under Act 9 of 1967 be treated as a deposit under Act 35 of 1969 and also under took to pay the balance, if any, as would be found by the Court. The third respondent (court auction purchaser) and his assignees Respondents 1 and 2 contended that the appellants have no interest in the properties and the delivery of the property had already been taken. The appellants attacked the validity of exhibit A2 and A3 contending that the assignments in favour of Respondents 1 and 2 were made without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran, Respondent No. 3 was only a benamidar of the decree holder in the matter of the Court auction purchase. This application (E.A. 556/70) was stoutly opposed by the respondents inter alia contending that the properties did not belong to the Tavazhi of the appellants and the appellants have no right to the suit properties and are not entitled to apply for restoration of possession. According to the respondents, there is no valid deposit and after the delivery of the property has been effected, Gopa lan Nambiar trespassed into the properties and he was eject ed by recourse to a suit and thereafter the properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the strength of the said sale deeds. The Trial Court held that the appellants were the tenants of the properties when they were dispossessed and the deposit made by the appel lants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration. On the said finding it allowed E .A. 556/70 and set aside the sale. Aggrieved by the order of the Trial Court, the Respond ents 1 and 2 filed A.S. 49/74 before the Sub Court, Badaga ra, which for deciding the appeal posed the following four points for its consideration, namely: 1. Are the Petitioners entitled to maintain the application? 2. Is the deposit sufficient? 3. Are the appellants bona fide purchaser for consideration? 4. Whether the court sale is liable to be set aside and the restoration of possession claimed allowable? If so, are the petitioners liable to pay anything by way of value of improvements? The learned Judge answered the first point "that the petitioners are competent to maintain the applica tion," and the second point holding " . . that the deposit when it was made is sufficient. However the interest accrued till date of the present appli cation will be directed to be deposited in case the peti tioners are found entitled to restoration of possession. " 546 Coming to the third point it has been held thus "The first respondent (third respondent in S.L.P.) had absolutely no necessity to execute any sham documents. The fact that respondents 5 and 6 (Respondents 1 and 2 in the SLP) came into possession and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and pay ment of consideration spoken to by both the vendor and vendee are sufficient to hold that they are bona fide pur chasers for consideration. " Under the fourth point, the relief claimed by the appellants was held to be rejected. In the result, the order of the Trial Court was set aside and the appeal was allowed dis missing E.A. 556/70. The learned Subordinate Judge has also expressed his opinion in his judgment that in summary proceedings under Section 13B of the Act, the plea of the appellants that the third respondent was a benamidar of the fourth respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code. On being dissatisfied with the judgment of the Subordi nate Judge, the appellants preferred E.S.A. No. 15/79. The respondents filed their cross objections. Though the High Court admitted the appeal on being satisfied that the appeal involves as many as 11 substantial questions of law, it disposed the appeal on a short ground that the documents and the evidence adduced by the respondents 1 and 2 (Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in ques tion for consideration and the plea of benami put forth by the appellants has to be negatived. The contentions in the cross objections were that for filing an application under Section 13(B)(1) of the Act, a deposit of the purchase money together with the interest at the rate of 6 per cent per annum in the court is a condition precedent and that the finding of the lower Appellate Court that the earlier depos it made under Act 9 of 1967 was sufficient and the interest accrued till the date of the Execution Application under Act 35 of 1969 would be directed to be deposited in case the appellants were found entitled to restoration of possession of the property is erroneous. The High Court disposed the contentions in the main appeal observing thus: "It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the 547 lower appellate Court on other grounds. I only indicate that the respondents ' counsel thought to sustain the conclusion of the lower appellate court on other grounds as well. " In the result, the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs. So far as the cross objections are concerned, the High Court passed the following order: "There is no need to dispose of the cross objections on the merits. It is ordered accordingly. " Hence the appellants by this appeal are impunging the judg ment of the High Court. Mr. K.K. Venugopal, Sr. Counsel appearing on behalf of the appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on behalf of the first and second respondents respectively took us very meticulous ly and scrupulously through the judgments of all the three courts and put forth the case of their respective parties. Having heard the learned counsel on either side for a considerable length of time, we are clearly of the view on a conspectus of the relevant Section 13(B) of the Act and on the factual matrix of the case that the result of the case would depend upon the decision of two substantial questions involved, they being (1) Whether respondents 1 and 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration entitling to the benefit of the proviso to Section 13(B)(1)? (2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(B) of the Act? Before making a more detailed and searching analysis on different aspects of the case, it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Section 13(B)(1) of the Act, on the pivotal of which both the questions revolve. Section 13B: There is no requirement in any of the clauses 548 that an offer of readiness to comply with any order for deposit of costs must be expressed in any judgment, decree or order of court, where any holding has been sold in execu tion of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this Section; Provided that nothing in this sub Section shall apply in any case where the holding has been sold to a bona fide purchas er for Consideration after the date of such dispossession and before the date of publication of the Kerala Land Re forms (Amendment) Bill, 1968 in the Gazette. If the answer to the first question is in the affirma tive, then there is no need to consider the second question as it would be only academic. We, therefore, shall now address ourselves in the first instance whether the concur rent finding of facts by both the Appellate Courts relating to the first question warrant interference. Before the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A 1 to A22, the respondents examined RWs 1 to 4 and marked Exhibits B. 1 to B .58. Besides, exhibit X 1, X 2, X 3, X 5 and X 6 and C. 1 to C.4 were also exhibited. The Respondents 4 to 6 admittedly are brothers. Though at the initial stage, Mr. Krishnamurthy Iyer did not accept the relationship of the third Respondent with Respondents 4 to 6 on the ground of lack of evidence, subsequently no serious dispute was raised about the said relationship. The Trial Court has proceeded on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan in whose favour the decree had been assigned. However, it is admitted during the course of hearing of this appeal that the third Respondent is not a direct brother of Respondents 4 to 6, but son of the step mother of Respondents 4 to 6. The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth Respondent Krishnan. The first Respondent Govindan Nair is a stranger. The third Respondent, the Court auction purchaser sold the property extending 4.35 acres in favour of the first Respondent and the remaining half in favour of the second Respondent under sale deeds Exts. A.2 and A.3 dated 549 5.12. Consideration mentioned in each of the sale deeds Exts. A.2 and A.3 is Rs.3,000. Out of Rs.3,000 shown as consideration for A.2 a sum of Rs.2,500 is said to have been left with the first Respondent for payment of arrears of rent. In exhibit A.3, it is recited that the third respondent is said to have already received Rs.2,000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting O.S. No. 6/66. The said sum of Rs.2,000 is stated to have been adjusted towards the consideration under exhibit A3. The first Respondent has produced a receipt (exhibit B28) showing that out of the amount of Rs.2,500 left with him he had paid a sum of Rs. 100. There is no other document evi dencing the discharge of the entire alleged arrears of rent out of Rs.2,400. When the third Respondent was questioned about the promissory note on the strength of which he is stated to have borrowed a sum of Rs.2,000, he has stated that he had returned the promissory note. This evidence as rightly pointed out by Mr. Venugopal is highly unacceptable because in usual practice whenever a debt, borrowed on a promissory note is discharged that promissory note is re turned to the borrower and never left with the lender. Moreover, the evidence of the third Respondent is contra dicted by RW. 3, the son of the second Respondent. According to RW. 3, when exhibit A.3 was executed, the promissory note was returned to the third Respondent. According to Mr. Venugo pal, this contradictory version betwixt the evidence of the first Respondent and RW. 3 clearly shows that the recital regarding payment of consideration to the extent of Rs.2,000 in exhibit A.3 is not genuine and acceptable and that exhibit A.3 is not fully supported by consideration. As per the recitals of consideration under Exhibits A.2 and A.3 the total cash consideration received by the third Respondent was only Rs. 1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from the second Respondent. It is vehemently urged on behalf of the appellants that the third Respondent after purchasing the property for Rs.815 in 1962 would not have parted with it after fighting several litigations for a cash considera tion of Rs.1,500 only. The evidence of the third Respondent that he left a sum of Rs.2,500 with the first Respondent for discharging arrears of rent and earlier received a sum of Rs.2,000 from the second Respondent on a promissory note is not credit worthy in the absence of any supporting contempo rary documentary evidence. His assertion that he paid the amount for the Court auction purchase in the year 1962 out of the money in his possession as well as from borrowings shows that he was a man of slender means. When he was con fronted from whom he borrowed that amount, his answer was that he did not remember from whom and how much he borrowed. The 550 Trial Court has rightly pointed out in paragraph 19 of its Order that the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present property. Mr. Venugopal drew out attention to another piece of evidence of RW3, deposing that his father was never consult ed with regard to exhibit A3 and assailed his evidence as in credible and bereft of truthfulness and trust worthiness. Coming to the sale deed, exhibit A2 it is stated that the first Respondent is residing about 11 miles away from Palayed Amson where the property is situated. He has no other property in Amson. The reason given by him for purchasing this property which was already riddled with litigation is not at all convincing. The first appellate Court while perfunctorily rejecting the reasoning of the Trial Court with regard to the consid eration part of exhibit A2 and A3 disposed of that contention in a summary manner holding: "The apparent inadequacy is no ground to think that there is no consideration . . I don 't think that the recitals in Exhibits A2 and A3 can be overlooked for this or the other reasons stated by the learned Munsiff." Then relying on Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded: "that the Respondents 1 and 2 came into possession of the properties and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and payment of considera tion spoken to by both the vendor and vendee and as such they are bona fide purchasers for consideration." The High Court accepting the reasons given by the sub Judge held thus: "Most of these documents are public records or registers kept in the respective village office and proceedings in courts. There is no more of law in placing reliance on such documents. The finding entered by the learned Subordinate Judge that respondents 5 and 6 are bona fide purchasers for consideration is based on substantial evidence. It cannot be said to be arbitrary or unreasonable or perverse. ' ' 551 But both the Appellate Courts have conveniently ignored even the relationship of the parties which assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching a satisfactory conclusion and seem to have summari ly disposed of the case of the appellants. The question is not the mere inadequacy of consideration as pointed by the lower appellate Court, but lack of evi dence in substantiating the recitals of both the documents. The next contention advanced by Mr. Venugopal is that though the High Court has formulated as many as 11 substantial questions of law. it has not dealt with any of them enumer ated as (a) to (e) and examined the question No. (f) in the proper perspective. Further the important question No. (g) reading "rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not a bona .fide purchaser for value" is not at all dealt with. It may be noted in this connection that the 6th re spondent and the 2nd respondent referred to in that question are Ambrolil Ammalu (2nd respondent herein) and Krishnan (4th respondent herein). As pointed out supra the High Court itself has expressed that it was inclined to dispose of the appeal 'on a short ground '. The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti is that it is not open to the appellants to reagitate the matter and request this Court to disturb the concurrent finding of facts arrived at by both the appellate Courts which had rendered their findings on the proper evaluation of the evidence and there can be no justification to review or re appreciate the evidence to take a contrary view in the absence of any contemporaneous document in support of the plea of the appellants. In addition to the above, Mr. Poti urged that the appellants have not properly and satisfacto rily discharged the onus of proof cast upon them and the concurrent findings based on voluminous documents, the copies of which are not annexed to the SLP for perusal of this Court, do not call for interference. In reply to the above arguments, Mr. Venugopal has pointed out that none of the documents referred to in the judgments of the appellate Courts would either improve the case of the respondents or deny the claims of the appel lants. Of the documents relied upon by the appellate Courts, exhibit B 17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book. exhibit B28 is a rent receipt dated 23.2.1969 issued by the receiver appointed in O.S. 1/64 on the file of the Sub Court (lower appellate Court). B. 42 is a true extract 552 from the Foodgrains Cultivation Register and B.46 is a true extract from the Peringathor Village Account. exhibit B.41 to B.45 are the levy notices and revenue receipts for the years 1967, 1968. 1969 and 1973. Exhibits B.55 to B.59 are copies of orders in M.C. No. 3/71. As rightly pointed out by Mr. Venugopal, it is but natural that the receipt for the pay ment of tax, rent receipt, revenue receipt etc., are in the names of the persons in whose names the properties stand and therefore those documents cannot by themselves dispel the claim of the appellants. Besides, urging with aH emphasis that Exhibits A2 and A3 are only sham and nominal documents, it has been incidentally urged by Mr. Venugopal that the transaction under these two sale deeds is benami in nature. This argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in favour of respondents 5 and 6 on the ground of fraud etc. , the plea of benami transaction cannot be counte nanced. He also cited the decision in Mithilesh Kutnari and Another vs Prem Behari Khare, ; But Mr. Venugopal explained his argument that he has not advanced that argument to set aside the sale deeds on the ground of benami transaction, but only for scrutinising the circum stances of the transaction in examining the validity of the sale deeds. However, as the plea of benami transaction is not pressed into service, it need not detain us any more. We shah now examine whether this Court would be justi fied in interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India. In a recent decision in Dipak Banerjee vs Lilabati Chakraborty, ; it has been observed thus: "That jurisdiction (under Article 136 of the Constitution of India) has to be exercised sparingly. But, that cannot mean thai injustice must be perpetuated because it has been done two or three times in a case. The burden of showing that a concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellant. But once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice." No doubt, this discretionary power has to be exercised sparingly; Out when there are exceptional and special cir cumstances justifying the exercise of the discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or 553 excluding material evidence resulting in unduly excessive hardships, this Court will be justified in stepping in and interfering with the concurrent finding of facts in the interest of justice and it is also the duty of this Court to remedy the injustice, so resulted. Vide Basudev Hazra vs Meutiar Rahaman Mandal; , and Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, at pages 385 and 386. The present case, in our view, suffers from the infirmi ty of excluding, ignoring and overlooking the abundant materials and the evidence, which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the appellate Courts. The relation ship of the parties inter se has been completely and conven iently ignored and excluded from consideration. In fact, the High Court has not rendered any finding on question No. (g) which is one of the eleven substantial questions of law formulated in paragraph 3 of its judgment. The lack of evidence in support of the recital in regard to the consid eration is completely overlooked. Therefore, in view of the above exceptional and special circumstances appearing in this case, this Court will not be justified in refusing to exercise its discretionary powers merely on the ground that the conclusion of both the Courts is concurrent. For the discussions made above, we are of the view that the conclusion arrived at by both the appellate Courts is only backed by assertions rather than by acceptable reason ing based on the proper evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of the proper ties in dispute for consideration. On the other hand, we hold that the evidence and circumstances of the case coupled with the evidence on record do establish that the respond ents 1 and 2 are not bona fide purchasers for consideration. In the result, we hold that the respondents 1 and 2 are not entitled to the benefit of the proviso to sub Section (1) of Section 13(B) of the Act and answer the first ques tion against the respondents and in favour of the appel lants. We shall now pass on to the next question whether the appellants are entitled to the benefit of Section 13(B)(1) of the Act. The Kerala Land Reforms Act of 1963 came into force on 1.4.1964. Amended Act 9 of 1967 was a temporary enactment which 554 remained in force till 31.12. Thereafter, Act 35 of 1969 came into force from, 1.1.1970 containing Section 13(B) which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded. To invoke this benevo lent provision, the satisfaction of two primary conditions are sine qua non. Those conditions are: (1) Any "holding" to which a tenant is entitled to resto ration of possession should have been sold in execution of any decree for arrears of rent. (2) The tenant should have been dispossessed of the "holding" after the first day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969. If these two essential conditions are fulfilled, then the sale in execution of any decree for arrears of rent shall stand set aside notwithstanding anything to the con trary contained in any law or in any judgment, decree or order of court and the tenant shall be entitled to restora tion of possession of such holding, but subject to the provisions of this Section 13B. The only bar for the resto ration of possession under this Section 13(B)(1) is the sale of the holding to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette. For invoking the benefit of sub Section (1) of section 13(B) the person entitled to restoration of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the purchase money together with interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding. Once these legal formalities are satisfactorily complied with then the Court by holding a summary enquiry shall set aside the sale and restore the applicant to possession of his holding. The explanation to that section says that the term 'holding ' includes a part of holding. The expression "holding" is defined in Section 2(17) of the Act. The language of Section 13(B) is plain, clear and unam biguous representing the real intention of the legislature as reflected not only from the clear words deployed but also from the very purpose of the vesting of rights on the dis placed tenants. To construe the provisions of a statute especially of a benevolent provision like the one in ques tion, we have to take into consideration the dominant pur pose of the statute, the intention of the legislature and the policy underlying. Vide 555 P. Rami Reddy & Others vs State of Andhra Pradesh & Others, ; ; Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan & Others, [1987] 2 SCC 654 and M/s Doypack Systems Pvt. Ltd. vs Union of India & Others, ; Admittedly, the third respondent obtained delivery of the property in question through court on 29.1.1965 from the possession of the appellants, who were the tenants of the said property which was sold for arrears of rent and there after the appellants preferred a petition for restoration of possession of their holdings in Execution Application No. 1711/67 under Section 6 of Act 9 of 1967 after depositing the sale amount of Rs.815 and the interest of Rs.255. Thus the appellants have satisfied the conditions for entitlement of the possession of the property. While this proceeding was pending, Act 35 of 1969 came into force repealing Act 9 of 1967. Therefore, the appellants filed the Execution Applica tion No. 566/70 in O.S. 817/43 praying that the present application should be treated as a proceeding in continua tion of the earlier Execution Application and the amount deposited already in the previous Execution Application should be treated as deposit for the present application with an undertaking to deposit the balance, if any. Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the time of the dispossession, both the Trial Court as well as the first appellate Court have concurrently found that the appellants were holding the property as tenants and they were dispossessed. Before the High Court, it was contended that at the time of dispossession of the holding, the appel lants were not tenants but only trespassers, that the dis possesion was only pursuant to the decree in O.S. No. 6/66 and that both the lower Courts have not applied their minds to these salient and vital facts. The learned Judge of the High Court has answered this contention in the penultimate paragraph of his judgment observing thus: " This is a serious legal error. It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the lower appellate court on other grounds. " Suffice to mention here that the High Court has not specifi cally dislodged the findings of the lower Courts that the appellants were tenants at the time of the dispossession. However, we will deal with this question presently. The main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that the appellants are not entitled to restoration of the possession of their 'holding ' because of an intervening cause, that being, that the third respondent, got the pos session of the property which is now sought to be disturbed not in execution of the decree for arrears of rent, but by filing a suit subsequent to 'the court auction purchase. That intervening cause is explained by the learned counsel 'stating that after the property was delivered over to the third respondent on 29.1.1965, Gopalan Nambiar (since dead) and the first appellant trespassed into the land which necessitated the third respondent to institute a suit O.S. No. 6/66 in the Sub Court of Badagara which was decreed on 27.7. 1966 as evidenced by the judgment (exhibit B16). He con tinues to state that the third respondent, only in pursuance of the execution of this decree in O.S. 6/66 obtained pos session of the property on 23.8. 1966 and therefore Section 13(B)(1) in view of the said intervening cause cannot be availed of since the third respondent though 'got possession earlier by the auction purchase was dispossessed by the subsequent event of trespass by the appellants and got possession by instituting the suit O.S. 6/66. One other argument of the learned ' counsel is that as the sales under Exhibits A2 and A3 are only subsequent to the decree in O.S. No. 6/66, these transactions cannot be brought into the dragnet of Section 13(B) and the said provision will have no application to the facts of the present case. We are afraid, we cannot permit this inconceivable argument to be advanced. Admittedly, the third respondent purchased the property in court auction sale in pursuance of the decree for arrears of rent in O.S. No. 817/43 and obtained the possession by dispossessing the tenants, namely, the appellants. It was only thereafter there was trespass by the appellants. There fore, the subsequent event of obtaining possession of the property in pursuance of the decree in O.S. No. 6/66 will not in any way alter the position that the appellants had been dispossessed in pursuance of the decree for arrears of rent. The decree in O.S. No. 6/66 for obtaining possession from the trespassers does not confer any new right or title over the property in favour of the third respondent. Mr. Venugopal countered this argument stating that this new plea should not be allowed to be raised because this plea was never taken both before the trial and the first appellate Courts. The reply given by Mr. Krishnamurthy Iyer is that since it is a question of law, it is permissible to raise this question even at this stage. As we have said earlier, even assuming that this plea could be raised, it has no substance in any way affecting the claim of the appellants for the reasons stated supra. Mr. Poti after giving a brief note about the legislative history that Act 4 of 1961 was declared as void on 5.12. 1961 in respect of certain 557 provisions and that thereafter Act 1 of 1964 was enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961 advanced a hesitant argument that the application is liable to be dismissed as the entire amount has not been deposited in compliance with sub Section (2) of Section 13(B) which is a condition precedent to claim the restora tion of the possession of the property. Admittedly the appellants filed an application in the year 1967 for resto ration of the possession of the property under Section 6 of Act. 9 of 1967 and during the pendency of that application, Act 35 of 1969 came into force. The applicant who had al ready deposited the purchase amount together with interest has made the request to treat that application as the one in continuation of the later proceeding and undertook to pay the deficiency of the amount, if any. The lower appellate Court in paragraph 6 of its judgment found that the deposit already made was sufficient and that the interest accrued thereafter would be directed to be deposited in case the appellants were found entitled to restoration of possession. This finding of the first appellate Court concurring with the Trial Court has not been dislodged by the High Court. It may not be out of place to mention that on account of cer tain divergent views expressed by Judges of the Kerala High Court on this point the question was referred to a Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab vs Mohar Singh, ; observing: "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them." and agreeing with the view expressed by Krishnamurthy Iyer, J (as he then was and who is now appearing before us for the first respondent in different capacity) in Civil Revision Petition Nos. 1090 and 109 1 of 1972 wherein this precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending on the date of the commencement of the Act 35 of 1969 was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act. We approve the view taken in the above Parameswa ran Narnbudiri 's case and hold that the deposit made in the earlier application under Section 6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969 was liable to be continued uneffected by the provisions of the later Act. 558 In Summation: We, for the aforementioned discussion, disagree with the findings of the High Court, set aside the impugned judgment and restore the judgment of the Trial Court holding that the sale of the 'holdings ' of the appellants was in execution of the decree in O.S. No. 817/43 for arrears of rent and the appellants who are tenants were dispossessed of the holdings after 1.4.64 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 and the respondents 1 and 2 are not bona fide purchasers for consideration. In view of our above conclusion the appellants are entitled to recover possession of the properties in dispute, but without preju dice to the rights, if any, of the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and who have got themselves impleaded as parties to the present proceed ings. The amount under deposit made by the appellants is permitted to be withdrawn by the respondents 1 to 3. In the result, the appeal is allowed with costs. S.B. Appeal al lowed. [/INST]In its industrial policy, the State Government declared on 1.8.1961 that where power has to be generated by indus trialists themselves, exemption from electricity duty would be granted for a period of five years from the date of plant goes into production, and that the concession would be applicable only to new generating sets installed during the Third Plan period. The Respondent indicated to the Government on 3.5.1955 that about 5000 K.W. of electricity would be required by it to run its paper plant and that it would by itself make arrangements for obtaining the necessary generating equip ment. It also applied for import licence for the import of a production plant as also a power plant to run it. The import licence was granted and the Respondent started negotiation with the foreign supplier. Since the price had gone up it was rather impossible for the Respondent to import both the production plant and the power plant, and if the power plant was not purchased along with the production plant, it would make the project unsound. Hence the Respondent was in two minds whether to have the power plant or not. Meanwhile, the above said industrial policy was announced and the Respond ent on installation of the power plant was able to start its production w.e.f. 16.2.1965. Thereafter to formalise the matter, the Respondent corre sponded 437 with the appellant for the grant of the requisite exemption, which was rejected, and the Respondent approached the High Court by way of a petition under Articles 226 and 227 of the Constitution of India. The High Court held that the Peti tioner was entitled to invoke the doctrine of promissory estoppel in order to claim exemption from payment of elec tricity duty for a period of five years from 16.2.1965 in terms of the assurance of the State Government dated 1.8.1961. Against this order of the High Court the State has come in appeal by Special Leave. On behalf of the appellant State it was urged that there was no occasion to invoke the doctrine of promissory estop pel, since the Respondent had not in any manner acted on the assurance of the Government to its own prejudice but on its own it was taking steps to set up a generating plant much before the industrial policy was announced. Dismissing the appeal, this Court, HELD: 1. Whether the respondent was of one mind right from the beginning to set up a power plant, with or without the assurance of the State Government dated 1.8.1961, as asserted by the State, is neither borne out nor is the view of the High Court arrived at from the record. On the con trary, the view taken is that the respondent 's indecision in that regard ended and it became decisive on the announcement of the assurance dated 1.8.1961. Such view of the High Court was a possible view to be taken on the material placed before it and the inference drawn therefrom could be that the respondent had acted on the basis of the assurance. [441E F] 2. This Court ordinarily does not interfere with factual findings arrived at by the High Court and this case has not been shown to be an exception. The view taken by the High Court was unexceptional warranting it to be left uninter ferred with. [441F] 3. Without commanding the State Government to issue such a Notification, the High Court has granted relief to the respondent to which there was no bar. Accordingly no provi sion of Madhya Pradesh Electricity Duty Act, 1949 or any other law can be said to have been transgressed. [442A] </s>

<s>[INST] Summarize the judgementAppeals Nos. 2093 and 2084 of 1970. Appeals from the judgment and order dated January 28, 1964 of the Calcutta High Court in Income tax Reference No. 104 of 1960. B. P. Maheshwari, for the appellant (in both the appeals). S.T. Desai, P. L. Juneja and R. N. Sachthey, for the respondent (in both the appeals). The Judgment of the Court was delivered by Khanna,J. This judgment would dispose of two Civil Appeal.s Nos. 2083 and 2084 of 1970 which have been filed on certificate 972 granted by the Calcutta High Court and are directed against the Judgment of that Court whereby it answered the questions referred to the Court under Section 66(1) of the, Indian Income tax Act, 1922 (hereinafter referred to as the Act) for two assessment years against the assessee appellant and in favour of the respondent. The assessee is a Limited Company and the matter relates to the assessment years 1956 57 and 1957 58, the corresponding accounting years for which ended on June 30, 1955 and June 30, 1956 respectively. The appellant Company was appointed as the Managing Agent of Shree Ramesh Cotton Mills Ltd., Morvi (hereinafter referred to as the managed company), as per agreement dated 30 12 1946. The managed company was a 100% subsidiary of the appellant company. Under the terms of the agreement, the appellant company was entitled to receive a fixed office allowance of Rs. 1,000/ per mensem plus a commission at the rate of 121/2% of the net profits, an additional commission of 1 % on all purchases of cotton and an equal amount on all sales of cloth and yarn. In the relevant years, the managed company suffered losses and congruently the commission payable at 121/2% of the net profits was nil but the commission on purchase of cotton at the rate of 1 1/2% and on sales of cloth and yarn at the same rate, aggregated to Rs. 38,719/ for the assessment year 1956 57 and Rs. 1,963/ for the following year. Besides these amounts, the appellant was entitled to Rs. 12,000/ per annum for each of the two years as fixed office allowance. The total amounts which the appellant was entitled to receive from the managed company were Rs. 50,719/ and Rs. 13,963/ for the two years. The managed company 's accounting year closed on the 30th day of December and that of the appellant company on the 30th day of June every year. Clause 2(e) of the Managing Agency Agreement dated 30th ember 1946 contained the following term as to when the commission would be due and payable " (e) The said commission shall be due to the Agents yearly on the thirty first day of December or any other date on which the Company 's yearly account close in each and every year during the continuance of this Agreement and shall be payable and be paid immediate after annual accounts of the said Company has been passed by the Board of Directors and Auditors of the Company and by the company in, General Meeting". According to the above clause, the commission was due on the 31st day of December every year and it was payable imme diately after the annual accounts of the managed company had 973 been passed in the General Meeting. The Annual General Meetings of the managed company were held to adopt the accounts on November, 24, 1955 and July 21, 1956 respectively with regard to the assessment years in question. The amounts of commission in terms of the above clause were "due" on 31st December, 1954 and 31st December, 1955 and were "payable " immediately after the 24th of November, 1955 and 21st of July, 1956 respectively. The appellant company relinquished the managing agency commission for the assessment year 1956 57 as per resolution dated 4th of April, 1955 of the Board of Directors and for the following year as per resolution dated 19th June, 1956. The amounts of the commission were thus relinquished after they had become "due" but before they were "payable" in terms of clause 2(e) of the agreement. On behalf of the appellant, it was stated that the managed company had been suffering heavy losses in the past years and, therefore, the appellant did not consider it proper to charge any commission or the fixed office, allowance and had consequently relinquished the same. The Income tax Officer included the sums of Rs. 50,719/ and Rs. 13,963/ in the total income of the appellant for the two assessment years in question. The Income Tax Officer took the view that in so far as the fixed office allowance was concerned, it had been given to the appellant to enable it to recoupe the expenses incurred on behalf of the managed company and the relinquishment was, therefore made ex gratia. As regards the commission, the Income tax officer held that it had become due to the appellant at the end of the accounting year of the managed company, and if the commission had been foregone after it had become due, it was taxable on accrual basis. The Appellate Assistant Commissioner and the Income tax Appellate Tribunal affirmed the order of the Income tax Officer. According to the Tribunal, the commission became due to the appellant yearly on the last day of the accounting year of the managed company, though the actual payment was deferred to a later date. Postponement of the actual payment after the income had accrued was held to be inconsequential. Likewise, the relinquishment of the income after it had become due in the opinion of the Tribunal, was inconsequential. Claim was ten made by the appellant that the amount relinquished should be treated as a permissible expenditure under section 10(2) (xv) of the Act. The above claim was rejected and it was observed that the total loss carried over at the end of year 1955 of the managed company was Rs. 14,95,221/ . As a result of foregoing the amounts of the managing agency commission, according to the Tribunal, the financial position of the managed company did not 974 become stronger while that of the appellant company became weaker. The relinquishment was consequently held to be not for the benefit of the appellant. At the instance of the appellant, the Tribunal referred the following two questions to the High Court : " (1) Whether on the facts and in the circumstances of the case, the sums of Rs. 50,719/ and Rs. 13,963/foregone by the assessee by its Directors ' resolution dated 4 4 1955 and 19 6 1956 respectively, were liable to be included in its total income for the accounting years ending 30 6 1955 and 30 6 1956 ?" "(2) If the answer to question No. 1 be in the affirmative, whether the assessee is entitled to claim an allowance of an equivalent amount as expenditure under the provisions of Section 10 (2) (xv) of the Indian Income Tax Act ?" The High Court agreed with the view taken by the Tribunal. It was observed that the accrual of income was complete within the accounting year of the managed company and as no relinquishment had been done before the amount became due, the case strictly came within the ambit of section 4 (1) (b) (i) of the Act. 'no relinquishment, it was further observed, was a unilateral act of the appellant. As regards the second question, the High Court found that the relinquishment had not been made for the purpose of facilitating the legitimate commercial undertaking or by way of commercial expediency. The appellant 's case was thus held to be not covered by section 10(2) (xv) of the Act, Mr. Maheshwari has assailed the findings of the High Court. Regarding the first question, the learned counsel contends that as the amounts in question were never received by the appellant but were relinquished, there arose no tax liability for those amounts. As regards the second question, Mr. Maheshwari submits that the relinquishment of the amounts should be construed as permissible expenditure under section 10(2) (xv) of the Act. There is, in our opinion, no substance in any of the above contentions. So far as the first question is concerned, we find that according to clause 2(e) of the Managing Agency Agreement reproduced above, the commission for the two years in question became due to the appellant on the 31st day of December, 1954 and 31st day of December, 1955. The appellant also became entitled to receive fixed office allowance of Rs. 12,000/ for each of the two years. It, therefore, can be said that the income of Rs. 50,719/ had accrued to the appellant on 31st December, 1954 and of 975 Rs. 13,973/ on 31st December, 1955. The fact that the pay ment of the managing agency commission was deferred till after the accounts had been passed in the meetings of. the managed company did not affect the accrual of the income of those amounts on December 31, 1954 and December 31, 1955 respectively. According to Section 4 (1) (b) (i) of the Act, subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which if such person is resident in the taxable territories during such year accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year. The dictionary meaning of the word "accrue" is "to come as an accession, increment, or produce : to fall to one by way of advantage : to fall due". The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be payable immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further fact that the amount of income is not subsequently received by the assessee would also not detract from or efface the accrual of the income, although the non receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also clear from the language of Section 4 of the Act. Clause (a) of sub section (1) of Section 4 of the Act deals with the receipt of income while the, accrual of income is dealt with in clause (b) of that sub section. The appellant company admittedly was maintaining its account according to the mercantile system. It is well known that the mercantile system of accounting differs substantially from the cash system of book keeping. Under the cash system, it is only actual cash receipts and actual cash payments that are recorded as credits and debits; whereas under the mercantile system credit entries are made in respect of amounts due immediately they become legally due and before they are actually received; similarly, the expenditure items for which legal liability has been incurred are immediately debited even before the amounts in question are actually disbursed. Where accounts are kept on mercantile basis, the profits or gains are credited though they are not actually realised, and the entries thus made really show nothing more than an accrual or arising of the said profits at the material time. The same is the position 976 with regard to debits made. [See Indermani Jatia V. Commis sioner of Income Tax, U.P. (1)] In the case of Commissioner of Income Tax, Bombay City I vs Messrs Shoorji Vallabhdas and Co.(2) Hidayatullah, J (as he then was) speaking for the Court observed,: "Income tax is a levy on income. No doubt, the Income tax takes into account two points of time at which the liability to tax is attracted viz. the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book keeping, an entry is made about a "hypothetical income", which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though, an entry to that effect might, in certain circumstances, have been made in the books of account". The assessee firm, who was the managing agent of two shipping companies in that case, gave up 75% of the managing agency commission with a view to get the managing agency transferred to two private companies. It was held that this was not a case of a gift by the assessee to the managed companies of a portion of income which had already accrued, but an agreement to receive a lesser remuneration than what had been agreed upon. In the present case, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such, the appellant could not escape the tax liability for those amounts. Coming to the second question we find that the appellant could claim deduction of the amounts under section 10(2) (xv) of ' the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the appellant. There is, however, nothing to show that the amounts were relinquished for the purpose of the appellant 's business. The present is not a case wherein the amounts due to the assessee were given up on grounds of commercial expediency or for advancing the business interest of the assessee. The conclusion of the learned Judges of the High Court in this respect, in our opinion, is well founded. The result is that the appeals fail and ire dismissed but, in the circumstances, without costs. Appeals dismissed. [/INST]The appellant, a limited company, was managing agent of another company. Under the terms of the agreement the appellant company was entitled to receive a fixed monthly sum as office allowance and commission at fixed rates on net profits and purchases and sales of cotton and yarn. The managed company 's accounting year closed on the 30th day of December every year and that of the appellant company on the 30th day of June every year. Under cl. 2(e) of the managing agency agreement the commission was due on the 31st day of December every year and it was payable immediately after the annual accounts of the managed company bad been passed in the General meeting. The Annual General meetings of the managed company were held to adopt the accounts for the relevant accounting years on November 24, 1955 and July 21, 1956, The amounts of commission in terms of the cl. 2(e) were thus 'due ' on 31st December 1954 and 31st December 1955 and were 'payable ' immediately after 24th November 1955 and 21st July 1956 respectively. Since the managed company had suffered losses in the preceding years the appellant relinquished the commission as well as the office allowance by resolutions of the Board of Directors dated April 4, 1955 and June 19. On these dates the amounts of commission relinquished had become 'due ' but not 'payable '. The Income tax Officer in making the assessments for the 1955 56 and 1956 57 did not make any allowance for the amounts relinquished and included them in the total income of the appellant. According to the Income tax Officer the office allowance had been relinquished ex gratia and the commission had been relinquished after it had accrued. The Appellate Assistant Commissioner and the Appellate Tribunal confirmed the order of the Income tax Officer. In ,reference the High Court held : (i) that the accrual of income was complete within the accounting year of the managed company and as no relinquishment had been done before the amount became due, the case came within the ambit of section 4(1)(b)(i) of the Income tax Act, 1922, (ii) that the relinquishment had not been made for the purpose of facili tating the legitimate commercial undertaking or by way of commercial expediency and the case was not then fore covered by section 10(2)(xv). In ;appeal to this Court, HELD : (i) According to s, 4(1) (b) (i) of the Act, subject to the provisions of this Act the total income of any previous year of any person includes all income profits and gains from whatever source derived which if such a person is resident in the taxable territories during 971 such year accrue or arise of the deemed to accrue or arise to him in the taxable territories that year. The dictionary meaning of the word 'accrue ' is to come as an accession, increment, or produce; to fall to one by way of advantage; to fall due. ' The income can thus be said to accrue when it becomes due. The postponement of the date of payment has a bearing only in so far as the time of payment is concerned, but it does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount, even though it may not be payable immediately. There also arises a corresponding liability of the other party from whom the income becomes due to pay that amount. The further facts that the amount of income is not subsequently received by the assessee would also not detract front or efface the accrual of the income, although the non receipt may, in appropriate cases, be a valid ground for claiming deductions. The accrual of an income is not to be equated with the receipt of the income. That the two, accrual and receipt of income, have different connotations is also) clear from the language of section 4 of the Act. Clause (a) of sub section '(1) of section 4 of the Act deals with the receipts of income while the accrual of income is dealt with in cl. (b) of that sub section. [975 B E] In the present case the accounts of the appellant company were maintained on a mercantile basis. Under this system the profits and gains are credited though not immediately realised, and the entries thus made really show nothing more than an accrual or arising of the said profits, at the material time. Further, the amounts of income for the two years in question were given up unilaterally after they had accrued to the appellant company. As such the appellant could not escape the tax liability for those amounts. [975 G H; 976 E] Indermani Jatia V. C.I.T., U.P., and C.I.T., Bombay City I vs M/s. Shoorji Vallabhdas & Co., 46 I.T.R. 144, applied. (ii) The appellant could claim deduction of the amounts under section 10(2)(xv) of the Act if the amounts had represented an expenditure laid out or expended wholly and exclusively for the business of the, appellant. There was however nothing to show that the amounts were relinquished for the purpose of the appellant 's business or on grounds of commercial expediency. The High Court therefore rightly rejected the claim under section 10 (2) (xv)[976 F G] </s>

<s>[INST] Summarize the judgement: Civil Appeal No. 509(N)of 1975. From the Judgment and Order dated 25.7.1973 of the Madhya Pradesh High Court in First Appeal No. 118 of 1966. A.K. Ganguli and C.N. Sreekumar for the Appellant. R.B. Misra and S.K. Agnihotri for the Respondents. The Judgment of the Court was delivered by M.M. PUNCHHI, J. This appeal by special leave is against a judgment and decree in reversal passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur. One has straightaway to come to grips with some basic facts of the case alongside the historic backdrop influenc ing their course. The property in dispute is a medium sized house bearing No. 494/1, Partap Sagar Ward, known as Gulab Rai Wala House, in the city of Chhatarpur. In the plaint filed by the District Collector, Chattarpur, dated May 5, 1962, it was valued at Rs.40,000 and its rental value barely as Rs.114.77 NP. In British days, the State of Chattarpur, like other such States, was an independent State, under the paramountcy of the British Crown. The British Crown was the suzerain power as acknowledged by the Indian States which owed a modified allegiance to it, but none to the Government of India. On India having obtained independence the suzer ainty of the British Crown over the Indian States lapsed simultaneously because of section 7 of the Indian Independ ency Act, 1947. It is a matter of history that immediately thereafter all but three of the Indian States acceded to the Dominion by executing Instrument of Accession. Chattarpur was one such State. The new Dominion of India was empowered to accept such like accessions by a suitable amendment in the Government of India Act, 1935. The sovereignty of the acceding States was expressly recognised and safeguarded. The identical Instrument of Accession, which each Ruler 45 signed, was in the exercise of his sovereignty in and over his State and clause 8 provided: "Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or, save as provided by or under this Instrument, the exercise of any powers, au thority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State." To put it differently, the effect of the accession was to retain full autonomy and sovereignty to the Rulers in their respective States except on three subjects, namely, Defence, External Affairs and Communications. These alone were trans ferred to the Central Government of the new Domimon. On March 13, 1948, thirty five States in Bundelkhand and Baghelkhand regions agreed to unite themselves into one State which was to be called the United State of Vindhya Pradesh. Chattarpur being one such State in Bundelkhand area was a party thereto. The signing thirty five Rulers had brought about the new State into being purely as a domestic arrangement between themselves and not as a treaty with the Dominion of India. Obviously there was surrender of a frac tion of the sovereignty of each Ruler to the newly created State but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947 relating to Defence, External Affairs and Communica tions. Despite the readjustment, the sum total of the sover ignties which had resided in each before the covenant then resided in the whole and its component parts; none of it was lost to the Dominion of India. The articles of the covenant, so far as they are rele vant for our purposes, are articles VI and XI, which are reproduced hereafter: "ARTICLE VI (1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 1st May, 1948, make over the Administration of his State to the Raj Pramukh; (a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern 46 ment of the Covenanting State shall vest in the United State and shall hereafter be exerciable only as provided by this Government or by the Constitution to be framed thereunder: (b) all duties and obligations of the Ruler pertaining or incidental to the Government of Covenanting State shall devolve on the United State and shall be discharged by it; (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State. XXX XXX XXX XXX ARTICLE XI (1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State Properties) belonging to him on the date of his making over the Adminis tration of the State to the Raj Pramukh. (2) He shall furnish to the Raj Pramukh before the 1st May, 1948 an inventory of all the immovable properties, securities and cash balances held by him as such private property. (3) If any dispute arises as to whether any item of property is the private property of the Ruler or State Property, it shall be referred to a Judicial Officer to be nominated by the Government of India, and the decision of that person shall be final and binding on all parties con cerned." Despite the distinction drawn in Article XI, there was in reality no distinction between State property and the property privately owned by a Ruler, since the Ruler was the owner of all the property in the State. For the purposes of arrangement of finance, however, such a distinction was practically being observed by all Rulers. The apparent effect of the covenant was that all the property in the State vested in the United State of Vindhya Pradesh except private property which was to remain with the Rulers. As is evident, the Ruler was required 47 under Article XI to furnish to the Raj Pramukh before May 1, 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property. Conceivably, on a dispute arising as to whether any item of property was or was not the private property of the Ruler and hence state property, it was required to be referred to a Judicial Officer to be nominated by the Government of India and the decision of that officer was to be final and binding on all parties concerned. Despite the stern language of Article XI, requiring a Ruler to furnish the list of his private properties by May 1, 1948, the covenant did not contain any clause or article providing penal consequences which would or were likely to follow in the event of a Ruler not furnishing the list of private properties before that date. Nothing is available in the covenant and none was pointed out to us that if a Ruler failed to furnish an inventory of his private properties before May 1, 1948, he was debarred from furnishing it at a later stage and that failure of his part had the effect of divesting him of title to his private properties. The House in dispute was built by the then Ruler Mahara ja Sir Vishvanath Singh Ju Deo to accommodate Gulab Rai, his Private Secretary and that is how it acquired its name as Gulab Rai Wala house. The parties were at variance about the subsequent user of the house whether it was for State pur poses or private purposes of the Ruler. The factual undenied positioin is that the Ruler of Chattarpur on July 5, 1948 (vide Exhibit D 13 5) submitted a list to the Raj Pramukh of the United State of Vindhya Pradesh of his private proper ties, and in the said list the house in dispute, namely, Gulab Rai Wala house, was shown as the private property of the Ruler (by the then Maharaja Shri Bhawani Singh Ju Deo). In the following month, on August 25, 1948, the said Mahara ja Shri Bhawani Singh Ju Deo made a gift of the house in dispute in favour of his father in law Dewan Shanker Partap Singh (now deceased and represented by his legal representa tives appellants). His gift has become the subject matter of dispute in the suit, out of which this appeal has arisen, for grounds to be taken note of later at an appropriate stage. By means of another agreement dated December 26, 1949, between the Governor General of India and the Rulers of the States forming the United State of Vindhya Pradesh, the covenant entered into on March 13, 1948, was abrogated. The articles of this agreement, in so far as they are relevant for our purposes, read as under: 48 "ARTICLE I As from the first day of January, 1950, the Covenant entered into in March, 1948 by the Ruler of certain States in Bun delkhand and Baghelkhand for the formation of the United State of Vindhya Pradesh (hereinafter referred to as "the Covenant") shall stand abrogated. ARTICLE II As from the aforesaid day, the United State of Vindhya Pradesh shall cease to exist and all the property, assets and liabilities of that State, as well as its right duties and obligations shall be those of the Government of India. ARTICLE III The Ruler of each of the States specified in the Schedule to this agreement (hereinafter referred to as the Covenanting States ') hereby cedes to the Government of India, with effect from the aforesaid day, full and exclusive authority, jurisdiction and powers for, and in relation to, the gover nance of that State; and thereafter the Government of India shall be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit. XXX XX XX X XX ARTICLE VII (1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private proper ties (as distinct from State Properties) belonging to him on the date of his making over the Administration of the State to the Raj Pramukh in pursuance of the Covenant. (2) If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to a judicial officer to be nominated by the Government of India, and the decision of that officer shall be final and binding on all parties concerned. ' ' 49 This Agreement of the year 1949 paved the way for the Cen tral Government appointing a Chief Commissioner as Head of the Administration of Vindhya Pradesh, followed by the Parliament making it a Part 'C ' State in the year 195 1, followed by the creation of the State of Madhya Pradesh in the year 1956 under the States Reorganisation Act. And such position continues till date. As is prominent, under the covenant of March 13, 1948, and as repeated in the agreement of December 26, 1949, any dispute arising, whether any item of property was the pri vate property of the Ruler or State property, was to be referred to a Judicial Officer to be nominated by the Gov ernment of India and the decision of that officer was to be final and binding on all parties concerned. It appears, however, that a letter dated January 22, 1950 (copy whereof was Exhibit P 9) was sent by Shri N.M. Buch, Secretary in the Ministry of States, New Delhi, to the Ruler suggesting that a Conference was held between him and the Ruler at Naugong from 16th to 18th September, 1949, and some deci sions were taken with regard to the private properties of the Ruler and the list of such property as finally emerging was Exhibit P 10 attached with the letter Exhibit P 9. Item No. 22 in that list, being Gulab Rai Wala house, was shown to be State property as per decision taken in the said Conference. From these documents, the High Court when re solving the claims of the State and the donee has taken the view that originally the property in dispute was claimed by the ruler as his private property but on agreement it was decided that it be State property, and further the legal effect thereof was that with effect from May 1, 1948, the date of agreement of merger, the property in dispute stood vested in the new Union. The second factor which weighed with the High Court to conclude in the aforesaid manner was that listing of properties, whether State or private, was open to objection and could be settled by a Judicial Officer to be nominated by the Government of India, as per the articles aforereferred to, and a raiseable dispute could otherwise be settled amicably mutually, Mr. Buch 's letter being indicative of that. On that basis, the gift deed dated August 25, 1948, was held by the High Court to be ineffec tive, the said property having already vested in the State with effect from a prior date on May 1, 1948. And since after that date, the Ruler was incompetent to effect a valid gift deed in favour of anyone, the State 's claim of posses sion and mesne profits was held irresistable. Undeniably, the Dewan Shanker Partap Singh was in pos session of the house in dispute when the suit was instituted by the State of Madhya Pradesh on May 5, 1962. The suit was filed almost 14 years of 50 the gift in his favour. The gift was challenged as null and void and ineffective for the reasons: (i) the gift deed was written on an ordinary paper; (ii) was unregistered, (iii) was not signed by any witness, (iv) did not bear the seal of the Maharaja, (v) prior to the date of the gift the power of the Maharaja was transferred to Vindhya Pradesh Government and the said house was not his private property, and (vi) the house in dispute was already declared to be the property of the Vindhya Pradesh Government as per terms of the cove nant between the ex Ruler of Chattarpur and the Government of India, and the Civil Court was not competent to question the legality of the conditions of the said covenant. On that basis, possession of the house was claimed from the donee Dewan Shanker Partap Singh as also arrears of rent from August 25, 1949 onwards at the rate of Rs.114.77 NP, totall ing Rs.18,866, before the trial court. The suit was contested by the defendant Shanker Partap Singh contending that (i) the gift of August 25, 1948, was not void and inoperative and that there was no legal re quirement to use a particular kind of paper for executing a gift deed; (ii) non registration thereof had no legal effect as the executant had admitted execution of the document, (iii) the Transfer of Property act was not applicable at the relevant time, (iv) the deed was signed by the Ruler and the absence of seal was of no consequence, (v) the property was the private property of the Maharaja, and (vi) finally the Ruler had every right to make such gift. Besides, a number of other pleas were raised, which are unnecessary to be dealt with for the present purposes. Similarly, the pleas in the replication, countering the pleas in the written state ment, also need not require any attention for the present purposes, for the way in which we propose to deal with this appeal. The trial Court framed a number of issues which attract ed voluminous evidence to be led by the parties. The Mahara ja of Chhatarpur was examined as defendant 's witness and owned making of the gift in favour of his father in law. He admitted, however, that Shri Buch had met him in connection with the covenant, but he denied that he had received any letter Exhibit P 9 from Shri Buch or the lists Exhibits P 10 to P 12 regarding his private and State properties, were a part thereof. His evidence was suggestive of there being no agreement between him and Shri Buch to change the list of properties. The trial Court 's clear findings were that the property in dispute was not that of the Maharaja but that of the defendant, as it had been gifted to hun by the Maharaja on August 25, 1948, and that the house was mistakenly shown later as 'State property '. In that view of the matter, the trial 51 Court dismissed the suit. The appeal of the State of Madhya Pradesh was, however, allowed by the High Court on the view taken that the property in dispute had vested in the United States of Vindhya Pradesh on May 1, 1948, and that thereaf ter no valid gift could be made by the Ruler in favour of the defendant. The High Court further held that whatever rights and powers the Ruler had as a sovereign ceased to exist after May 1, 1948, and the said date was fixed not later than May 1, 1948, and the gift deed made thereafter on August 25, 1948, could not give the defendant a valid title to the property on that basis. With regard to damages, the High Court took the view that the rate of Rs.56 per mensem as at one time demanded initially by the State should be the basis for assessment of damages. In that view of the matter, the suit of the State of Madhya Pradesh Government was decreed for possession, but reducing the damages to Rs.16,735.35 paise. And this has given rise to the present appeal. History of the covenant entered into by the Rulers and the final integration finds recognition in Virendra Singh and others vs State of Uttar Pradesh, ; The significant passage as available at page 4 19 of the report, is worthy of reproduction here: "After this, on 13th March, 1948, thirty five States in Bundelkhand and Baghelkhand (including Charkhari and Sarila) agreed to unite themselves into one State which was to be called the United State of Vindhya Pradesh. In pursuance of this agreement each of the thirty five Rulers signed a covenant on 18th March, 1948, which brought the new State into being. It is important to note that this was a purely domestic arrangement between themselves and not a treaty with the Dominion of India. Each Ruler necessarily surren dered a fraction of his sovereignty to the whole but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947, namely, Defence, External Affairs and Communications. Despite the readjustment, the sum total of the sovereignties which had resided in each before the covenant now resided in the whole and its camponentparts: none of it was lost to the Dominion of India." (Emphasis supplied) Only a fraction of sovereignty to the whole was surrendered by the Ruler not his total sovereignty. Though it was expected by Article XI of the covenant of the Ruler to submit a list of his private properties 52 before May 1, 1948, his individual sovereign power did not stand taken away after May 1, 1948. He was still sovereign, as is our view, to submit the list beyond that date and there was no penal clause in the covenant to penalise him for belated observance or to treat belated observance non est. It is the admitted case that factually the Ruler of Chattarpur had in his list of July 10, 1948, shown the property in dispute to be his private property and this was followed by a gift of it in writing on August 25, 1948, in favour of his father in law. It is in the assertion of his sovereign power that he gave his list on July 5, 1948 (Exhibit D 13 5) and it is in assertion of the same sover eign power as also individual that he made the gift of the house in dispute to his father in law. Support for such view is available in Virendra Singh 's case (supra) from the following passage occurring at page 429 of the report; " . . The Rulers of Charkhari and Sarila retained at the moment of final cession, whatever measure of sovereignty they had when paramountcy lapsed, less the portion given to the Indian Dominion by their Instruments of Accession in 1947; they lost none of it during the interlude when they toyed with the experiment of integration. There was then redistribution of some of its aspects but the whole of whatever they possessed before the integration returned to each when the United State of Vindhya Pradesh was brought to an end and ceased to exist. Thereafter each acceded to the Dominion of India in his own right." (Emphasis supplied). It is thus plain that the Ruler of Chhatarpur lost none. of his sovereignty by integrating his State with other States except to the extent in which it was arranged or redistributed on some of its aspects. It is in exercise of that sovereign power that the Ruler, in the manner indicated above, had set apart the property in dispute as one of his private properties, in the list submitted on July 5, 1948. It is nobody 's case that he could not submit such a list on July 5, 1948. Further, in exercise of his sovereign as also individual right over his private property, that he trans ferred the house in dispute to his father in law on August 25, 1948. In these circumstances, the suggested Conference which took place later in September, 1949 between him and Shri N.M. Buch, Secretary in the Ministry of States, New Delhi, evident from letter Exhibit P 9 dated January 22, 1950, and the lists Exhibits P 10 to P 12, appended there with, is not of much significance. In the first place, the Ruler denied when appearing as a witness in the trial as having received any such letter or the lists appended there with, sug 53 gestive of the fact that he had reconverted the donated property to be a State property. In the second place, but for the said letter, purportedly issued at a time when the State of Chhatarpur had otherwise ceded to the Central Government vide agreement dated January 1, 1950, there was no direct evidence forth coming for such conference. In the third place, even if such Conference had taken place in September 1949, as suggested, the minutes thereof cannot be treated as amounting to a divestiture of the gift made in favour of the father in law. Fourthly, the Ruler had no sovereign power towards administering his State which had become part of the integrated United State in terms of Article VI of the covenant, and during the integration he could not exercise such a sovereign power, so as to take away the property of a private person and treat it as State property because the property in dispute having once vested in the defendant appellants could not be divested in the manner suggested. And lastly, there was no raiseable ques tion or issue which the Ruler could, while sitting with Shri Buch, decide amicably without the aid of the Judicial Offi cer nominated by the Government entering upon such dispute, because before integration he owned his State and its properties and there could legitimately not arise a dispute as to which was his private property or State property and thus its settlement by a mutual consent did not arise. Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the Ruler lost his sovereign right to ear mark the property in dispute as his private property after May 1, 1948, or that the said property vested in the State with effect from that date or that the letter Exhibit P 9 of Shri N.M. Buch and the lists attached thereto, had the effect of divesting the appellants of the title to the property in dispute in favour of the State with effect from that date. In that strain, factual position having not been denied, the validity of the gift dated August 25, 1948, cannot be ques tioned on the grounds enumerated in the plaint, due to exercise of sovereign power of the Ruler in the grant there of at that point of time. Once that is held the claim for damages too caves in. We hold it accordingly. For the view above taken, we allow this appeal, set aside the judgment and decree of the High Court and dismiss the suit of the State of Madhya Pradesh with costs. R.N.J. Appeal al lowed. [/INST]A common question of law having arisen for determination in these petitions filed under Article 32 of the Constitu tion, they are disposed of by a Common Judgment, though the petitioners dealers are different and carry on their busi ness in different states and have challenged the respective provisions of law by which their cases are governed. The petitioners in WP 803/88 carry on the business of selling cinematographic Idms and other equipments like projector, sound recording and reproducing equipments, X Ray films etc. in the State of U.P. and in Delhi. The petition ers receive these goods from their manufacturers outside the State of U.P. In U.P. there is a single point levy of Sales Tax. The State of Uttar Pradesh issued two notifications under section 4A of the Uttar Pradesh Sales Tax Act and under Section 8(5) of the Central Sales Tax Act exempting new units of manufacturers as defined in the Act in respect of the various goods for different periods ranging from 3 to 7 years, from payment of Sales Tax. The petitioners by these petitions challenge the constitutional validity of these Notifications. They have also challenged the constitutional validity of section 4A of the Uttar Pradesh Sales Tax Act and sections 8(5) of the Central Sales Tax Act, and the proceedings taken by the Respondent under section 5A of 732 the said Act. The case of the petitioners is that they are discriminated on account of these notifications as the manufacturers covered by these Notifications are entitled to sell the articles manufactured by them without liability to pay sales tax while the manufacturers in other states and non manufacturers of the same article selling the same goods in the State are liable to pay sales tax under the local Sales Tax Act as well as under the Central Sales Tax Act. Their contention, therefore, is that they became subject to gross discrimination and their business was crippled. In these premises the petitioners challenge the provisions as ultra vires the constitution being violative of the provi sions of Articles 301 to 305 of part III of the Constitution as also Articles 14 and 19 of the Constitution. The Respondents counter the assertion of the petition ers. According to them the contention put forward by the petitioners ignores the basic features of the Constitution and also the fact that the concept of economic unity may not necessarily be the same as it was at the time of the Consti tution making; the state which was technically and economi cally weak in 1950 cannot be allowed to remain in the same state of affairs. The state has to give subsidy and grant exemptions/concessions for the economic development of the state to new industries. It was urged that if all the states are economically strong or developed then only can economic unity as a whole be assured or strengthened. Dismissing the petitions, this Court, HELD: Sales Tax Laws in all the States provide for exemp tion. Power to grant exemption is inherent in all taxing Legislations. Economic unity is a desired goal. Development on parity is one of the commitments of the Constitution. Directive Principles enshrined in Articles 38 and 39 must be harmonised with economic unity as well as economic develop ment of developed and under developed area. [756H; 757A B] Taxes may sometime amount to restrictions but it is only such taxes as directly and immediately restrict trade that would fail within the mischief of article 301. [740E] See Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; and Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 SCR 491. The taxes which do not directly and immediately restrict or 733 interfere with trade, commerce and intercourse throughout the territory of India would therefore be excluded from the ambit of article 30 1 of the Constitution. It has to be borne in mind that sales tax has only an indirect effect on trade and commerce. [747F] In the instant case, the general rate applicable to locally made goods is the same as that on imported goods. Even supposing without admitting that Sales Tax is covered by article 301 as a tax directly and immediately, hampering the free flow of trade, it does not follow that it fails within the exemption of article 304 and it would be hit by article 30 1. Still the general rate of tax which is to be compared under article 304(a) is at par, and the same qua the locally made goods and the imported goods. [751G H] Concept of economic barrier must be adopted in a dynamic sense with changing conditions. What constitutes an economic barrier at one point of time often ceased to be so at anoth er point of time. It will be wrong to denude the people of the state of the right to grant exemptions which flow from the plenary powers of legislative heads in List III of the 7th Schedule of the Constitution. [752A B] Basically the concept of equality embodied in Articles 304(a) and 16 are the same. Article 14 enjoins upon the state to treat every person equal before the law while Article 304(a) enjoins upon the state not to discriminate with respect to imposition of tax on imported goods and the locally made goods. [753C] It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour in evolving dynamic situa tions. [757B C] James vs Commonwealth of Australia, at 613; Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., ; ; A. Hajee Abdul Shakoor & Co. vs State of Madras; , at 225; State of Madras vs N.K. Nataraja Mudaliar, ; at 847; Andhra Sugars Ltd. & Anr. etc vs State of Andhra Pradesh & Ors., ; ; Bengal Immunity Co. Ltd. vs State of Bihar, at 754; State of Madhya Pradesh vs Bhailal Bhai & Ors., ; at 268 9; Rattan Lal & Co. & Anr. vs The Assessing Authority & Anr., ; at 557; India Cement & Ors. vs State of Andhra Pradesh & Ors. , ; ; Weston Electroniks & Anr. vs State of Gujarat & Ors., 568 at 571; C.A.F. Seeling Inc. vs Charles H. Baldwin, at 1038; Smt. Ujjam Bai vs State of U.P., [1963] 1 SCR 778 at 851; Coffee Board, Bangalore vs Joint Commercial Tax Officer, Madras & Anr. , ; at 156; V. Guruviah Naidu & Sons vs State of Tamil Nadu & Anr., ; at 1070; Kathi Raning Rawat vs The State of Saurashtra, ; ; Kalyani Stores vs The State of Orissa & Ors., ; ; Bharat General & Tex tiles Industries Ltd. vs State of Maharashtra, 72 STC 354; H. Anraj vs Government of Tamil Nadu, ; West Bengal Hosiery Assn. & Ors. vs State of Bihar & Anr. , ; ; State of U. P. & Ors. vs Babu Ram Upadhya, ; at 702; State of Tamil Nadu, vs Hind Stone etc.; , at 757; State of Mysore vs H. Sanjeeviah, ; ; Kailash Nath & Anr. vs State of U.P. & Ors. , AIR 1957 SC 790 at 791; State of U.P. & Ors. vs Renu sagar Power Co. & Ors., ; at 100; M/s Narinder Chand Hem Raj & Ors. vs Lt. Governor, Administrator, U.T., Himachal Pradesh & Ors., at 751 and Associ ated Tanners Vizianagram A.P.v. C.T.O., Vizianagram, Andhra Pradesh & Ors., ; , reffered to. </s>

<s>[INST] Summarize the judgementivil Appeal No. 539 of 1976. From the Judgment and Order dated 26.8.1975 of the Gujarat High Court in Spl. Civil Application No. 1627 of 1972. Soli J. Sorabjee, Attorney General, A. Subba Rao, C.V.S. Rao, P. Parmeswaran and Ms. Nisha Bache for the Appellants. S.K. Dhingra for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. By this appeal Union Government has challenged correctness of construction by High Court of Gujarat of notification No. 163 of 1965 issued under Rule 8 framed under Central Excise and Salt Act allowing exemption to all sorts of papers by "any factory commencing produc tion" to refer "not to the production of excisable goods paper in general failing under Item 17, but to pro duction of these specified exempted categories of paper in Column 2 of this notification" and canvasses for acceptance of the construction put on it by the Collector, Central Excise "that the factory must have commenced production on or after that date and not that the production of these items must have been commenced after the date". M/s. Arvind Boards & Paper Products Limited, Antalia, Bilimora, Gujarat State, was established in 1942. From 1944 when it went into production till 1964 it manufactured only straw boards and mill boards. It expanded its activities in 1965 and commenced manufacture of duplex board. The packing and wrapping paper was manufactured 661 on experimental basis in 1966 and on commercial basis after 1967. In December, 1971 the company wrote a letter to the Assistant Collector of Central Excise inquiring as to wheth er the company would be entitled to exemption under notifi cation No. 163/65 both in respect of the production at tributable to its installed capacity as in 1967 as well as in respect of the production attributable to its expanded capacity. In 1972 it was informed that it would be entitled to concession under Column 5 of the Table of the notifica tion in respect of the production attributable to the en larged capacity, namely, the third machine only. Consequent ly the claim of the petitioners for exemption on capacity as it existed in 1967 was not accepted. The order was main tained in appeal as well. The Appellate Collector held: "I do not agree with the appellant 's contention that the Assistant Collector erred in holding that "any factory which commenced production" related to any factory manufacturing paper falling under Item 17 of the said schedule irrespec tive of the varieties manufactured thereof. The exemption contained in the aforesaid Notification No. 163/65 as amend ed is in respect of the goods. Said exemption is conditional i.e. it is applicable to paper produced in a factory which commenced production on or after a specific date. Therefore, the condition is that the factory must have commenced pro duction on or after that date and not that the production of these items must have been commenced after that date. " The High Court did not agree with the construction of the Notification made by the Collector (Appeal) and held: "That is why the whole controversy has arisen as regards these key words "commencement of production". On a plain literal construction, bearing in mind the context of the exemption, where only certain specified categories of paper which is excisable item as specified in Column 2 had been exempted, it is obvious that the commencement of production must refer not to the production of excisable goods paper in general falling under item 17, but to production of these specified exempted categories of paper in Col. 2 of this notification. Any other interpretation would make the speci fication of various kinds of paper in Column 2 which alone attracted exemption redundant and would make even this condition in Cols. 3, 4 and 5 unworkable. " Excise duty was leviable under the Act on manufacture and clearance of paper under Item 17 of Schedule 1 to the Act. It reads as 662 "MANUFACTURED GOODS CLASSIFIED CHIEFLY BY MATERIAL 17. PAPER, all sorts (including pasteboard, millboard. straw board and cardboard), in or in relation to the manu facture of which any process is ordinarily carried on with the aid of power '. XXX XXX XXX (3) Printing and writing paper, packing and wrapping paper, straw board and pulp board, including grey board, corrugated board, duplex and triplex boards, other sorts . . 35 paise per kg." In 1965 the Central Government issued notification exempting papers of all sorts, from so much of the excise duty levi able thereon under the said item read within notification for the time being in force issued by the Central Government in relation to the duty so leviable, as is specified in the corresponding entry in Columns 3, 4, 5(a), 5(b) & 5(c) of the Table as the case may be: TABLE section Des Any factory Any factory Any factory commen cription which comm which comm production for the enced pro enced pro time on or after the duction duction on 1st March, 1964, or before the or after the any factory existing 1st April, 1st April, immediately, before 1961. 1961 but the 1st March 1964 before the whose production 1st March capacity has been 1964. enlarged and brought into operation on or after the extent such production is attributable to the enlarge capacity. During the During During the first 12 the period months of second subsequent the com 12 mon to the first mencement mence 24 months of produc ment of of the com duction. produc mencement of produc tion. 663 1 2 3 4 5(a) 5(b) 5(c) Entitlement of exemption depends on construction of the expression "any factory commencing production" used in the Table extracted above. Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, specially in a growing economy. For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective etc. That is why its construction, unlike charging provi sion, has to be tested on different touchstone. Infact an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative inten tion or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to aug ment state revenue. But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about ap plicability is lifted and the subject fails in the notifica tion then full play should be given to it and it calls for a wider and liberal construction. Therefore, the first exer cise that has to be undertaken is if the production of packing and wrapping material in the factory as it existed prior to 1964 is covered in the notification. From the table extracted above it is clear that it is in two parts and exemption is allowable in the first part to the factory commencing production on or after 31st March, 1964, and in the second part to the existing factory to extent of enlarged capacity. If the first part is read in isolation it is susceptible of construction as was adopted by the High Court. But the notification has to be read in its entirety and constured as a whole. Once that is done cloud of uncertainty disappears. A close reading of both the parts together leaves no room for doubt that it was intended to be exhaustive granting exemption to all factories produc ing packing and wrapping paper whether existing or commenc ing production from 1st March, 1964. To the former to the extent of enlarged capacity and to latter to full extent. The ambiguity arose because of absence of words new before 'factory ' or goods after the word 'production ' in the first clause. To harmonise it the High Court added the words 'goods '. But what was lost sight of that the words 'commenc ing ' in the first part and 'existing ' in the second part had to be read in juxtaposition. That is all those factories which were existing from before 664 were entitled to exemption on production of goods to the extent of enlarged capacity. This enlargement could be as a result of installation of additional machinery. The word 'capacity must necessarily relate to capacity of factory and not to goods. For instance a factory with capacity of say 1 lakh kg. of paper but producing only 75 thousand kg. achiev ing maximum after 1964 could not be covered in the clause as the production cannot be held to be due to enlarged capaci ty. That could be only if the capacity to produce goods increased due to installation of additional machinery. If this be true and correct, as it appears to be, then the first part presents no difficulty. The expression 'commenc ing production ' has to be read as commencing production of goods by a factory which was not existing and has started production on or after 1st March, 1864. Any other construc tion shall result in discrimination. A factory like respond ent existing from 1942 producing straw board and mill board shall be entitled to exemption on production of wrapping and packing paper on construction of the expression 'commencing production ' by the High Court even though it switched over from straw board and mill board to packing and wrapping paper after the relevant date whereas another unit existing and producing wrapping and packing paper itself from before 1st March, 1964 could not be entitled to exemption except to the extent of enlarged capacity. That is if an existing unit would have installed a new machinery it would have been entitled to exemption of production only to that extent whereas any unit producing goods other than the exempted goods would become entitled to exemption in respect of entire production. That could not have been the intention. A construction which results in inequitable results and is incongruous, has to be avoided. Therefore, production of packing and wrapping paper by respondent was entitled to exemption only to the extent it was attributable to enlarged capacity and not to the existing capacity. Hansraj Goverdhan vs H.H. Dave, Asstt. Collector, Central Excise & Customs, Surat and Others, relied on behalf of respondent demonstrates mis conception about interpreting an exemption provision. It was a case where goods of third persons were manufactured by cooperative society. But once initial hurdle was crossed and it was held that goods had been produced by cooperative society it was found squarely covered in the notification and the Court extended it to goods manufactured by third persons and repelled the submission that object of granting exemption was to encourage formation of cooperative societies and it should be confined to goods manufactured by its members and not others. Similarly in Commissioner of Income Tax vs Madho Prasad, ; the provision 665 allowing exemption to 'such part of the income in respect of which the said tax is payable. under the head 'property ' as is equal to the amount of rent payable for a year ', was construed liberally and it was held that the expression 'equal to the amount of rent payable for a year ' did not 'warrant the inference that the benefit of exemption ' could 'be claimed only once ' because the amount of rent which was sought to be deducted in more than one years was found squarely to fall in Item 36 of notification. It was again a case of interpreting an exemption notification at later stage. Recently in Tata Oil Mills Co. Ltd. vs Collector of Central Excise, ; , exemption was to soap made from indigenous rice bran oil as against edible oil. The assessee was engaged in manufacture of soap from rice bran fatty acid which was extracted from rice bran oil, in assesses factory. It was found rice bran oil as such could not be used unless it was converted into fatty acid. Therefore the assessee was covered in the notification. Once the ambiguity or about manufacture of soap from rice bran fatty acid was removed the Bench proceeded to construe the word "indigenous" in the notification liberally. In Collector of Central Excise vs Parle Exports (P) Ltd., AIR 1989 644 this Court while accepting that exemption clause should be construed liberally applied rigorous test for determining if expensive items like Gold Spot base or Limca base or Thums Up base were covered in the expression food products and food preparations used in item No. 68 of First Schedule of Central Excise and Salt Act and held 'that it should not be in consonance with spirit and the reason of law to give exemption for non alchoholic beverage basis under the notification in question. ' Rationale or Ratio is same. Do not extend or widen the ambit at stage of applicability. But once that hurdle is crossed construe it liberally. Since the respondent did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by respondent mentioned in the notification were entitled to benefit. In the result this appeal succeeds and is allowed. The order of the High Court is set aside and the Writ Petition is dismissed with costs. R.N.J. Appeal allowed. [/INST]The Respondent Company which was established in 1942 went into production in 1944 manufacturing Straw Boards and Mill boards only uptil the year 1964. In 1965 it expanded its activities by manufacturing duplex board. In the follow ing year it started manufacturing packing and wrapping paper on experimental basis and on commercial basis after 1967. Sometime in 1971 the Company wrote to the Assistant Collec tor of Central Excise enquiring as to whether it would be entitled to exemption from duty under Notification No. 163/1965 both in respect of production attributable to its installed capacity as in 1967 as well as in respect of production attributable to its expanded capacity. The As sistant Collector passed an Order holding the company was entitled to concession under column 5 of the Table of the Notification No. 163 of 1965 in respect of production at tributable to its enlarged capacity namely, the third ma chine and rejected its claim for exemption on production attributable to its capacity as it existed in 1967. Dissat isfied the company preferred appeal to the Appellate Collec tor who maintained the order of the Assistant Collector. The Respondent Company thereupon moved the High Court by a writ petition under Article 226 of the Constitution of India. In allowing the writ Petition the High Court held that on a plain literal construction it is obvious that the commencement of production must refer not to the production of excisable goods paper in general failing under item 17. but to production of those specified exempted categories of paper in column 2 of the aforesaid notification. Hence this appeal by the Union of India. Allowing the appeal and dismissing the Writ Petition of the Company. this Court. HELD: When the question is whether a subject falls in the Notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is removed and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. [663D E] A close reading of both parts of the Notification together leaves no 660 room for doubt that it was intended to be exhaustive grant ing exemption to all factories producing packing and wrap ping paper whether existing or commencing production from 1st March. 1964 to the former to the extent of enlarged capacity and to latter to the full extent. [663G H] As the Respondent Company did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by the Respondent mentioned in the Notification were entitled to the benefit. Production of packing and wrapping paper by Respondent was entitled to exemption only to the extent it was at tributable to enlarged capacity and not to the existing capacity. [665F; 664F] Hansraj Goverdhan vs H.H. Dave, Asstt. Collector, Cen tral Excise & Customs, Surat and Others, [1969] 2 S.C.R. 2.52; Commissioner of Inome tax vs Madho Prasad, ; ; Tara Oil Mills Co. Ltd. vs Collector of Central Excise, ; referred to. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1953 of 1968. Appeal by special leave from the judgment and order dated September 17, 1962 of the Allahabad High Court in Misc. I.T. Application No. 167 of 1955. A.K. Sen, G.L. Sanghi and B.R. Agarwal, for the appellant. Jagdish Swarup, Solicitor General, S.K. lyer, R.N. Sachthey and B.D. Sharma, for the respondent. In proceedings for assessment to incometax for the year 1946 47, the appellant firm was assessed to tax in respect of an amount of Rs. 3,99,587 received by it as profit on sale of shares. The. plea of the firm that the amount was "capital gain" and was on that account not taxable was rejected. In the view of the Income tax Officer the profit arose from "a well planned business activity in which the assessee had fully utilised its resources". The Appellate Assistant CommiSsioner affirmed the decision of the Income tax Officer. The Income tax Appellate Tribunal dismissed the appeal filed by the firm. The Tribunal, amongst others, referred the following question to the High Court of Allahabad for opinion: "Whether the surplus realised by the sale of the shares of Aluminium Corporation of India Ltd., J.K. Investment Trust and Raymond Woollen Mills amounting in aggregate to Rs. 3,99,587 or any part thereof was the revenue income of the assessee liable to tax under the Income Tax Act, 1922 ?" The High Court answered the question in the affirmative. The firm has appealed to this Court with special leave. In 1944 the firm purchased 50,000 ordinary shares of Raymond Woollen Mills Ltd. (hereinafter called "Raymond") for Rs. 69,75,255. The firm paid Rs. 7,00,000 on November 4,1944 and the balance on December 6, 1944. The transaction was financed with the aid of a loan of Rs. 70 lakhs borrowed from the Hindustan Commercial Bank Ltd. The firm sold those shares through brokers between November 23, 1944 and April 2, 1946 and realised Rs. 72,42,200, the transaction resulting in a net profit of Rs. 2,66,945. Between January 26, 1945 and April 5, 1946 the firm also purchased 67 debentures, 5,582 preference shares and 18,576 ordinary shares of the Aluminium Corporation 722 Ltd. (hereinafter called "Aluminium") for Rs. 8,57,480.Except 2118 preference shares, the entire lot of shares with the debentures was sold for Rs. 7,05,957 between February 1, 1945 and August 13, 1945. Adjusting the cost of shares left on hand the firm realised a net profit of Rs. 60,278 in that transaction. The firm also purchased 290 "A" Class shares of J.K. Investment. Trust Ltd. (hereinafter called "J. K. Trust") on February 4, 1945 for Rs. 1,45,000 and sold the same on August 22, 1945 for Rs. 2,17,264, the transaction resulting in a net profit of Rs. 72,364. Before the departmental authorities the firm claimed that it had taken over the entire share capital issued by Raymond with a view to secure its managing 'agency and had thereafter distributed the shares of Raymond to the various associates of the firm, and the transaction being one to facilitate acquisition of a capital asset being a capital investment, the profit realised by sale of the shares was not liable to be assessed to income taX. The firm also claimed that when a part of the new issue of capital of Aluminium was not taken over by the public, the firm as financiers of the, J.K. Group of Industries took over the shares and the debentures not subscribed within the time allowed. This transaction, it was contended, was also of the nature of capital investment. It was explained that the shares were sold on account of "financial embarrassment" and not with the object of earning income, and the profit realised by the sale did not attract tax. Similar contentions were also raised in respect of the shares of J.K. Trust. The departmental authorities rejected the contentions. The Tribunal agreed with them. From the ,facts found by the Tribunal it is clear that for purchasing the Raymond shares, the firm paid Rs. 7,00,000 on November 4, 1944, and the balance on December 6, 1944, .and commenced selling the shares on November 23, 1944. The contention that the shares were only distributed to the "allied concerns" is contrary to the findings of the Tribunal. Some of the shares were sold through brokers to outsiders. It is a significant circumstance that the firm parted with all the Raymond shares by April 2, 1946 and did not retain a single share after that date. It is true that some of the shares were held by J.K. Industries Ltd. and other J.K. concerns. But the transfer even to the J.K. concerns was in 'all cases for a profit. Within a few days after purchasing the Raymond shares, the "firm started unloading them". and the shares were never sold without making profit. The interest paid for the loan borrowed from the Hindustan Commercial Bank Ltd. for financing the purchase of Raymond shares was debited in the accounts as a revenue expenditure, and it was claimed as a permissible allowance. The firm used to promote Companies. 723 One of its activities was to finance "sister concerns" known as J.K. Industries. The Case of the firm that the shares had to be sold on account of "financial embarrassment" was plainly untrue. The Tribunal was, in our judgment, right in inferring that the "purchase 'and sale of shares was a business activity which was continuous", and since the firm "had entered upon a well planned scheme for earning profit and that in furtherance and execution of that profit making scheme they sold the shares at the opportune time" and that "the sale of the shares was not merely on account of pecuniary embarrassment" as claimed, the profit realised by the firm by the sales of shares could not be characterised as a casual receipt, nor could it be treated as accretion to a capital asset. Strong reliance was, however, placed on a somewhat obscure statement in the order of the Appellate Assistant Commissioner ' "In the case of Raymond Woollen Mills shares it is clear beyond doubt that the purchase of the shares was a first rate business deal and that it was motivated by the desire and intention to acquire the, Managing Agency of the Mills. If this is not an operation in the scheme of profit making, it is not known what will constitut e such a transaction. " Apparently there is a typographical error in the second clause of the first sentence, and the word "not" has by inadvertence been omitted; otherwise in the context in which it occurs the clause has no meaning whatever. In any event as rightly pointed out by the High Court the reasons given by the Tribunal and the conclusion recorded by it are inconsistent with the finding that the shares were purchased with the sole object of acquiring the Managing Agency of the Raymond Woollen Mills and not with a view to make profits. Counsel for the firm invited our attention to the decision of this Court in Ramanarain Sons (P) Ltd. vs Commissioner of Income tax, Bombay(1) in support of his contention that a transaction for purchasing shares with the object of acquiring the managing agency of a Company will be regarded as capital investment and not a business in share. In Ramnarain Sons ' case(1) the appellant Company was a dealer in shares and securities and also carried on business 'as managing agents of other companies. With a view to acquire the managing agency of a company, the appellant Company purchased from the managing agents a large block of shares at a rate approximately 50% above the ruling market rate. Two months later the appellant Company sold a small lot out of those shares at a loss and claimed the loss as a (1) 724 trading loss. It was found in that case by the Tribunal that the intention of purchasing the shares was not to acquire them as part of the stock in trade of tax payer 's business in shares, but to facilitate the acquisition of the managing agency of the Company which was in fact acquired, and on that account loss incurred by the sale of a small lot could be regarded only as a loss of capital nature. The Court observed in that case that the circumstance that the tax payer had borrowed loans at interest to purchase the shares or that it was a dealer in shares and was authorised by its memorandum of association to deal in shares was of no effect. On a review of the evidence the Tribunal held that the shares were purchased with the object of acquiring the managing agency and with that view the High Court agreed. Whether a transaction is or is not an adventure in the nature of trade is question of mixed law and fact: in each case the legal effect of the facts found by the Tribunal on which the tax payer could be treated as a dealer or an investor in shares, has to be determined. In the present case the transaction since the inception appears to be impressed with the character of a commercial transaction entered with a view to earn profit. Large block of shares was purchased at the ruling rates with borrowed money, and soon thereafter the shares were disposed of at a profit in small lots. Some of the shares were sold through brokers to strangers. The story of the firm that some or all the shares were merely "distributed" to its associates is not proved. The interest which the firm had to pay for the amount borrowed for purchasing the shares was acted in the revenue account and was claimed as a revenue allowance. It was not the case of the firm that Aluminium and J.K. Trust shares were purchased for .acquiring the managing agency. It was claimed that the shares were taken over because the public did not accept those shares. It was one of the objects of the firm to finance its allied concerns and in taking over shares which the public did not subscribe the firm was 'acting in the course of its business. The firm commenced selling the shares soon after they were purchased. Aluminium shares were purchased between January 26, 1945 and April 5, 1946 (except a few which were retained) and sold at profit. Whereas the first lot was purchased on January 26, 1945, the first sale was made on February 1, 1945. It could not be said that this was an investment in shares independent of the trading activity of the firm. The story that the shares had to be sold on account of financial difficulties is plainly belied by the circumstance that the firm went on purchasing and selling the Aluminium shares. J.K. Trust shares were purchased on February 14, 1945 and were sold on August 22, 1945. Aluminium shares as well as J.K. Trust shares were sold at a profit 725 and through brokers. These transactions were ,also stamped with the character of commercial transactions entered into with a profit motive and were not transactions in the nature of capital investments. The answer recorded by the High Court is therefore correct. The appeal fails and is dismissed with costs. V.P.S. Appeal dismissed. [/INST]The respondent was arrested on the 21st of April, 1950, under the , and on the 29th of 168 April. 1950, he was supplied with the ground for his deten tion which was as follows: "That you are engaged and are likely to be engaged in promoting acts of sabotage on rail way and railway property in Greater Bombay. " The respondent filed a habeas corpus petition contending that the ground supplied was vague as it did not mention the time, place or nature of the sabotage or how the respondent promoted it and that as the ground gave no particulars, his detention was illegal. Pending the disposal of the petition, the Commis sioner of Police sent a communication to the respondent giving these further particulars, viz., that the activities mentioned in the grounds supplied to him were being carried on by him in Greater Bombay between January, 1950, and the date of his detention and that he will in all probability continue to do so. The High Court of Bombay held that if these particulars had been furnished at the time when the grounds were furnished on the 29th of April, 1950, very likely they would have come to the conclusion that the grounds were such as would have led the detenue to know exactly what he was charged with and to make a proper repre sentation, but released the respondent holding that the only grounds which were furnished in the purported compliance of article 22 (5) were the grounds furnished on the 29th of April, 1950, and as these grounds were not such as to enable the detenue to make a proper representation, there was a viola tion of a fundamental right and a contravention of the statutory provisions and this violation cannot be set right by the detaining authority by amplifying or improving the grounds already given: Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ). Under section 3 of the , it is the satis faction of the Central Government or the State Government, as the case may be, that is necessary, and if the grounds on which it is stated that the Central Government or the State Government are satisfied have a rational connection with the objects which were to be prevented from being attained, the question of satisfaction cannot be challenged in a court of law except on the ground of mala fides. Held also per KANIA C.J., FAZL ALI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ. , (PATANJALI SASTRI and DAS JJ. dissenting). Clause (5)of article 22 confers two rights on the detenue, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order; and though these rights are linked together, they are two distinct rights. If grounds which have a rational connection with the objects mentioned in section 3 are supplied, the first condition is complied with. But the ,right to make a representation implies that the detenue should have information so as to enable him to make a representation, and if the grounds 169 supplied are not sufficient to enable the detenue to make a representation, he can rely on the second right. He may if he likes ask for further particulars which will enable him to make a representation. On an infringement of either of these two rights the detained person has a right to approach the court, and even if an infringement of the second right under article 22 (S) is alone, established he is entitled to be released. Per PATANJALI SASTRI and DAS JJ. As the power to issue a detention order depends upon the existence of a state of mind in the detaining authority, that is, its satisfaction, which is purely a subjective condition and judicial enquiry into the sufficiency of the grounds to justify the detention is thus excluded, it would be wholly inconsistent with the scheme to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person de tained to make a representation, for, the grounds to be communicated to the person detained are the grounds on which the order has been made. There is further nothing in article 22, el. (5), to warrant the view that the grounds on which the order of detention has been made must be such, that when communicated to the person they are found by a court of law to be sufficient to enable him to make what the court con siders to be an adequate representation, or that the latter part of cl. (5) confers a distinct right on the detenue or an independent obligation on the detaining authority to furnish the detenue with sufficient particulars and details to enable him to make an effective representation. Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.) In any view, on the facts of the case there was no infringement of any fundamental right of the respondent or contravention of any constitutional provision as he had been supplied with sufficient particulars as soon as he raised the objection that the grounds supplied were vague and the respondent was not, therefore, entitled to be released. Per KANIA C.J., FAZL ALI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.) The "grounds" for making the order which have to be communicated to the person detained as soon as may be are conclusions of facts and not a complete recital of all the facts. These grounds must be in existence when the order is made. No part of the 'grounds can be held back, and after they have been once conveyed there can be no addition to the grounds. All facts leading to the conclusion constituting the ground need not, however, be conveyed at the same time. If a second communication contains no further conclusion of fact but only furnishes some of the facts on which the first mentioned conclusion was rounded it does not amount to a fresh ground. The test therefore is whether what is conveyed in the second communication is a statement of facts or events, which facts or 170 events were already taken into consideration in arriving at the conclusion constituting the ground already supplied. So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenue mentioned in article 22, cl. They may consist of a narration of facts or particulars relating to the grounds already supplied. But in doing so the time factor in respect of second duty, viz., to give the detained person the earliest opportunity to make a represen tation, cannot be overlooked. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order it cannot be said to be "vague. " The question whether the vagueness or indefinite nature of the statement furnished to the detained person is such that he was not given the earliest opportunity to make a representation is a matter within the jurisdiction of the court 's inquiry and subject to the court 's decision. </s>

<s>[INST] Summarize the judgementCivil appeal No. 646 of 1961. Appeal by special leave from the judgment and decree dated April 7, 1961, of the Punjab High Court in Civil Revision No. 354 of 1959. Gopal Singh, for the appellates. Bishan Narain and Naunit lal, for the respondent No. 1. 1962. January, 17. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal by special leave against an order of the High Court of Punjab at Chandigarh, dated April 7, 1961. The appellants are five tenants, who have been evicted from certain shops and chobaras in the town of Patiala, on the application of the first respondent, the landlord. The application by the landlord was made in June, 1957, under section 13 of the Patiala and East Punjab States Union Urban Rent Restriction ordinance, 2006 BK (No. VIII of 2006 BK). The grounds urged by the landlord were (a) non payment of rent by the tenants, (b) non payment of house tax by the tenants and (c) that the shops were in a state of great disrepair and were dilapidated, and the landlord wished to rebuild them after dismantling the structures. The landlord averred that he had obtained sanction of the Municipal Committee to a proposed plan of construction, and accumulated some building material before making the application. The tenants resisted the application. The Rent Controller framed issues relating to the three 625 grounds; but the first two have ceased to be material now. On the issue relating to the third ground, the Rent Controller held that in deciding whether the tenants should be ordered to hand over possession to the landlord, the Courts must have regard to the bona fides of the request of the landlord, which meant that the desire to rebuild the premises should be honestly held by the landlord, but that the condition of the building also played an important part in determining whether the landlord had the intention genuinely and was not using this excuse as a devise to get rid of the tenants. In this connection, the Rent Controller observed that the state of the building, the means of the landlord, and the possibility of a better yield by way of rent, all entered into the appraisal of the landlord 's state of mind. Examining the case from this angle, the Rent Controller held that there was hardly any proof that the building was in a dilapidated condition. One solitary witness who testified to this, admitted that he had not seen the building from the inside. The landlord himself did not give evidence. On the other hand, there was ample evidence that the building was good. As regards the financial status of the landlord, the witnesses who stated on his behalf that, he could spend Rs. 5,000 to Rs. 10,000 knew nothing about his means. Even the landlord 's brother. who conducted this case on behalf of the landlord, could not give any details. The plan showed a building requiring about Rs. 20,000 to build. The landlord had an income of Rs. 200/ per month and his family consisted of his wife and five children. The Rent Controller, therefore, held that he had no means to rebuild the premises. The Rent Controller did not feel impressed by the alleged purchase of 40 bags of cement, because a greater part of the cement was used up already in building two or three latrines, and the quantity left was wholly insufficient for the proposed building. He, therefore, decided the issue against the landlord. 626 On appeal, these findings were confirmed by the appellate authority, who held that the shops and chobaras were in good condition, and that the landlord was not, in good faith, wanting to replace the building, when he had no means to built it. Against the order of the appellate authority, an application for revision purporting to be under section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (3 of 1949), was filed in the High Court. This application was allowed. The learned single Judge posed the question thus: "The question in the present case is whether there is a bona fide desire to rebuild the premises?". He referred to an earlier decision of a Divisional Bench of that Court (Civil Revision No. 223 of 1960), in which Gosain, J., laid down the law in the following words: "It is pertinent to note that the word 'building ' in the aforesaid clause is not qualified by the words 'requiring reconstruction ' or 'requiring rebuilding '. The landlord can, in these circumstances, require any building for the re erection of the same, and when in any case a claim to that effect is made by him the only point that has to be determined is whether on the facts and circumstances of that case his requirement is bona fide. A building, for instance, may not be immediately unsafe, but its condition may be such that unless it is reconstructed it may involve the landlord at a later date very heavy expenditure. All round a particular building different types of buildings may have been constructed of an entirely different design and the particular building in question may then be looking very ugly and the landlord may want to bring the same in conformity with the structures around it. " 627 After quoting this passage, the learned Judge observed that the consideration which must weigh in determining the question of ejectment is whether the landlord genuinely wants to rebuild the premises, and further, that the actual condition of the premises is "a wholly irrelevant factor". In dealing with the merits of the case, the learned Judge referred to the offer of the landlord to put back the tenants in possession, if the premises were not demolished within a month of his obtaining possession thereof, and concluded, without discussing the evidence, as follows: "Upon the evidence on record it seems to me established beyond all doubt that the landlord genuinely and bona fide requires these premises for rebuilding." He, therefore, set aside the concurrent orders of the two Tribunals, and ordered the eviction of the tenants, giving them two month 's time in which to vacate the premises. Two questions have been argued in this appeal. The first is that the revision application is incompetent, because under s.16(4) of the Patiala and East Punjab States Union Urban Rent Restriction ordinance, 'the decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any court of law whether in a suit or other proceeding by way of appeal or revision". It is contended that s.15(5) of the East Punjab Urban Rent Restriction Act, which conferred a power of revision on the High Court does not apply to the present case, because this case did not arise in proceedings taken under the Act. The next contention is that the interpretation placed by the learned Judge upon section 13(3) (a) (iii) read with section 13 (3) (b) is erroneous, and that the High Court had no power to reverse a concurrent finding of fact without itself re appraising the evidence, if at all. 628 On the first point, the learned counsel for the respondents relies upon a decision of this court reported in Moti Ram vs Suraj Bhan (1), where it was held that a revision application in analogous circumstances was maintainable. In our opinion, even if a revision application lay, the learned single Judge was in error in his interpretation of the relevant sections of the ordinance, and in reversing a concurrent finding of fact, without giving any substantial reasons. Section 13 of the ordinance, omitting portions which are irrelevant here, reads as follows: "13. (1) Notwithstanding anything contained in any other law for the time being in force, a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. x x x (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession. x x x (iii)in the case of any building, if he requires it for the re erection of that building or for its replacement by another building, or for the erection of other building; x x x (b) The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as 629 may be specified by the Controller, and if the Controller is not so satisfied, he shall make an order rejecting the application; x x x (4) where a landlord who has obtained possession of building or rented land in pursuance of an order under. sub paragraph (iii) of the aforesaid paragraph (a) put that building to any use or lets it out to any tenant other then the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. " Reading these provisions as a whole, it is obvious that if the landlord 's need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If, however, he does not re erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, 630 said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re erection must be bona fide, that is to say. honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existance of an intention to reconstruct, in the mind of the landlord. This intention must be honestly held in relation to the surrounding circumstances. In our opinion, the interpretation placed by the Punjab High Court (in the decision of Gosain, J.) puts too narrow a construction, and leaves very little for the Controller to decide. It is well known that Rent Restriction Acts were passed in view of the shortage of houses and the High rents which were being demanded by landlords. The very purpose of the Rent Restriction Acts would be defeated, if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them, etc. The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had he made any attempt to face cross examination as a party. They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed. With such clear findings, one would expect that a revising Court, however vide its powers may be, would, at least, go into the question over again, if it was going to depart from this unanimous conclusion. It is hardly necessary to go into the question of the extent of the powers of the High Court under section 15(5) of the Rent Restriction Act. They have been adverted to in the ruling of this Court, above mentioned. They 631 do not, however, include the power to reverse concurrent findings, without showing how those findings are erroneous. In the present case, the learned Judge has given his conclusion without adverting to single piece of evidence, from which his conclusion was drawn. In these circumstances it cannot be said that he had examined the propriety of the order sought to be revised, even under the provisions of the law he was administering. Learned counsel relying upon the case to which we have already referred, said that there the sanction by the Municipal Committee was taken into consideration in deciding the need of the landlord. The facts in that case are not fully stated, and from the observations, it would appear that there was other evidence besides the sanction by the Municipal Committee, on which the conclusion of the High Court was supported. In any event, a case cannot be an authority on a point of fact, and each case will have to be examined in the light of the circumstances existing in it. In the present case, the two Tribunals specially appointed to consider these matters, went thoroughly into the question, and discussed it from a correct angle. If they had examined they facts after instructing themselves correctly about the law, a Court of revision should be slow to interfere with the decision thus reached, unless it demonstrates by its own decision, the impropriety of the order, which it seeks to revise. No attempt of this kind has been made in this case, and in our opinion, the High Court was not justified in reversing the clear finding. In the result, this appeal must be allowed. The order of the High Court is set aside, and that of the appellate authority is restored. The landlord shall pay the costs here and in the High Court. Appeal allowed. [/INST]The Estate of Maharaja Man Singh of Ayodhya Raj devolved on his death successively on his two widows and thereafter, according to V the plaintiff a minor on his grandfather G, who died in 1942. Respondent claimed the estate as adopted son of the junior widow of the Maharaja. V filed a petition for leave to sue in forma pauperis for declaration of title to the estate making his father R a party. The plaintiff 's petition was rejected by the Subordinate Judge, on the ground that it disclosed no cause of action. R 's application to be transposed as petitioner was also rejected. V and R preferred revision applications to the High Court of Allahabad. The plaintiff 's application was rejected by the High Court holding inter alia that there was nothing in the petition to show that succeeded to the estate as the nearest male reversioner of the last male holder. R 's application was rejected by the High Court on the ground that relief in an application to sue in forma pauperis is personal to the applicant and nobody else can be made a co applicant, because 1, R. 10 of the Code of Civil Procedure does not apply to a proceeding for permission to sue as a pauper. ^ Held, that O. XXXIII of the Code of Civil Procedure lays down the procedure for institution of a suit by pauper. By cl. 5 (d) the court is required to ascertain whether the allegation made in the petition show a cause of action, but it does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. By the statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extended to trial of issues which must fairly be left for decision at the hearing of the suit. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of Court fee; and there is nothing personal in such an application. The suit commences from the 676 moment an application for permission to sue in forma pauperis as required by O. 33 of the Code is presented, and O. 1 r. of the Code would be as much applicable in such a suit as in a suit in which court fee had been duly paid. A person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. Claim to join by transposition as an applicant must be investigated; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself. </s>

<s>[INST] Summarize the judgementiminal Appeal No. 28 of 1956. Appeal by special leave from the judgment and order dated June 21, 1954, of the Calcutta High Court in Criminal Revision No. 811 of 1953. 1264 Ranadeb Chaudhury and P. K. Chatterjee, for the appellants. B. Sen and P. K. Bose, for the respondents. September 11. The Judgment of the Court was delivered by KAPUR J. This appeal by special leave raises a question of interpretation of section 237 of the Indian Companies Act. Appellant No. 1 is One of the past directors of the Bank of Commerce Ltd., now in liquidation and appellant No. 2 was its Managing Director. The Bank was ordered to be wound up by the High Court of Calcutta on August 7, 1950, and one G. K. Dutt, Bar at law was appointed its Official Liquidator but on September 7, 1950, the Official Receiver was appointed in place of Dutt. On July 23, 1952, respondent No. 1 filed in Court of the Presidency Magistrate a complaint against the appellant under sections 120B, 406, 467, 477A, Indian Penal Code and 182A of the Indian Companies Act and stated that he was doing so under the authority of the official liquidator and the official liquidator had obtained the directions of the High Court to file the complaint. On May 5, 1953, the appellant applied to the I residency Magistrate for dismissal of the complaint as being without the sanction of the Company Judge and therefore the official liquidator in his official capacity was incompetent to prefer the complaint, being the creation of the statute he could only act within the four corners of the statute. He possessed only those powers which the statute conferred on him. This application was dismissed by the Presidency Magistrate on June 13, 1953. The appellant then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of prior direction judicially given by the High Court under section 237(1) of the Indian Companies Act. The High Court found against the appellants and discharged the rule. The learned Chief Justice held that the provisions of section 237(1) are no bar to a prosecution by the liquidator; that under section 237(1) there is nothing in the nature of a judicial proceedings 1265 that it could not be said that the order was not a valid direction under section 237(1). He said: " There can be no question in the present case that the relevant facts were all placed before the Company Judge, because they are all set out in the report of Adhikary and the affidavits annexed there to to which the order expressly refers and with reference to which the liberty to bring legal proceedings was expressly given. In view of those circumstances, it is impossible to say that the Company Court had not before it all the facts on which the prosecution is based or that it did not apply its mind to the considerations relevant to section 237(1) ". He also held that clause (a) of section 179 empowers the liquidator to institute or defend legal proceedings in the name of the company and that it was expressly concerned with the powers of ' the liquidator whereas section 237 dealt with the powers of the Court to give, directions. P. B. Mukherji J. gave a concurring judgment. After referring to the history of section 237, he held that under that section the Company Judge can act ex parte and it was not necessary for him to hear a director or an officer of the company com plained against and that direction given under that section was not a condition precedent to a prosecution by the official liquidator nor is it the intention of that section to impinge on the powers of a criminal court under the Code of Criminal Procedure. Leave to appeal having been refused by the Calcutta High Court, the appellants have come to this Court in pursuance of special leave. On the application of the official liquidator Bachawat J. an January 15, 1951, made an order which must be taken to be one under section 179. In this order it was said: And it is further ordered that the said applicant be at liberty to institute or defend any suit or prosecution, or other legal proceedings, civil or criminal in the name and on behalf of the said Bank and to continue all pending suits and execution proceedings by or against the said Bank and for that purpose to engage advocates, Vakils and other. lawyers and to 1266 pay out of the assets of the said Bank in his hands all costs of and incidental to such suits, prosecutions and/or legal proceedings ". On July 22, 1952, the official liquidator obtained the order from Bannerji J. which the High Court has held, and in our opinion rightly, to be an order under section 237(1) of the Indian Companies Act. This order said: " It is ordered that the said applicant be at liberty to take such civil or criminal proceedings as he may think necessary over the report of the said Jasoda Dulal Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Mitra as set out in the said Exhibit " A " ". The passage already quoted from the judgment of the learned Chief Justice shows that all the relevant facts were before the Company Judge, as they were all set out in the affidavits placed before him. The complaint was then filed on July 23, 1952. During the pendency of the complaint the appellants took an appeal against the order of the Company Judge dated July 22, 1952, but it was dismissed on the objection taken by the liquidator that it was an administrative order and not a judicial order. On August 5, 1953, the official liquidator took out misfeasance proceedings under section 235 of the Companies Act and the appellants then applied to the High Court for quashing the criminal proceedings already started on the ground of commencement of proceedings under section 235. This application was also heard with the rule which was issued on June 29, 1953, and it was dismissed by the same judgment by which the rule was discharged, i. e., of June 21, 1954. The general scheme of the Companies Act is that the Court should have complete control of all proceedings in winding up and it was therefore urged that the official liquidator was not authorised to do anything either without the sanction of the Court or without its directions. Section 179 deals with the powers of official liquidator. It provides: 1267 The official liquidator shall have power, with the sanction of the court, to do the following things: (a) to institute or defend any suit or prosecution or other legal proceeding, civil or criminal in the name and on behalf of the company;. . . " Under section 180 the Court may provide that the official liquidator may exercise any of the powers given under section 179 without the sanction or intervention of the Court. Section 183 deals with the exercise and control of liquidator 's powers. Sub section 3 authorises him to apply to the Court for directions in relation to any particular matter arising in the winding up. Subsection 4 is a provision under which the official liquidator is entitled to use his own discretion in the administration of the assets of the company and in the distribution amongst the creditors. Sub section 5 provides: " If any person is aggrieved by any act or decision of the official liquidator, that person may apply to the Court and the Court may confirm, reverse or modify the act or decision complained of, and make such order as it thinks just in the circumstances ". These provisions show that section 179 deals with the powers of the liquidator. Under section 235 the Court has the power to assess damages against delinquent directors and the Court may on the application of the liquidator or a creditor or a contributory examine into the conduct of a director and compel him to pay or restore money or property or to contribute such sum to the assets of the company by way of compensation in respect of any misfeasance on his part and this power may be exercised irrespective of the criminal liability of the director. Section 237 deals with prosecution of delinquent director and the relevant portion of this section is: (1) " If it appears to the Court in the course of a winding up by, or subject to the supervision of, the Court, that any past or present director, manager or other officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the Court may, either on 161 1268 the application of any person interested in the winding up or of its own motion, direct the liquidator either himself to prosecute the offender or to refer the matter to the registrar. (2) If it appears to the liquidator in the course of a voluntary winding up that any past or present director, manager or other officer, or any member of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the registrar and shall furnish to him such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator relating to the matter in question, as he may require. (3) Where any report is made under sub section (2) to the registrar, he may, if he thinks fit, refer the matter to the Central Government for further enquiry, and the Central Government shall thereupon investigate the matter and may, if they think it expedient, apply to the Court for an order conferring on any person designated by the Central Government for the purpose with respect to the company concerned all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding up by the Court. (4) If on any report to the registrar under sub section 2 it appears to him that the case is not one in which proceedings ought to be taken by him, he shall inform the liquidator accordingly, and thereupon, subject to the previous sanction of the Court, the liquidator may himself take proceedings against the offender. (5) If it appears to the Court in the course of voluntary winding up that any past or present director, manager or other officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the registrar, the Court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly, 1269 the provisions of this section shall have effect as though,the report has been made in pursuance of the provisions of sub section (2). (6) If, where any matter is reported or referred to the registrar under this section, he considers that the case is one in which a prosecution ought to be instituted, he shall place the papers before the Advocate General or the public prosecutor and if advised to do so institute proceedings : Provided that no prosecution shall be undertaken without first giving the accused person an opportunity of making a statement in writing to the registrar and of being heard thereon. . . . . . . . . . . It was this section which the appellants pressed in support of the argument that without the order of the Court the official liquidator cannot lodge a criminal complaint against a past director and if he does so the proceedings will be ab initio void. All that sub section (1) requires is that if the Court finds in the course of winding up that any past or present director, etc., has been guilty of any offence in relation to the company the Court may either on the application of the person interested or of its own motion direct the liquidator to prosecute the offender or to refer the matter to the registrar. In the latter case if the registrar finds that the prosecution ought to be instituted he can do so if advised by the Advocate General or the public prosecutor. But emphasis was placed by counsel for the appellants on the proviso that no prosecution could be undertaken without first giving the accused person an opportunity of making a statement to the registrar or of being heard and it was urged that if the registrar cannot institute prosecution without first giving an opportunity to the person accused to file an explanation, no directions could be given by the judge unless the persons accused are first allowed an opportunity of giving an explanation. But this contention must be repelled. Under section 237 (1) the Court may direct the liquidator to himself prosecute the offender or to refer the matter to the registrar. Giving an opportunity to the offender before such direction is given by 1270 the Court is not a prerequisite of the Judge making in order under sub section Under sub section (6) the registrar is required to give the offender an opportunity to show cause before a prosecution is undertaken. That is a far step from saying that section 237(1) of the Companies Act requires a Judge to give the offender an opportunity before he gives a direction for prosecution by the liquidator or for reference to the registrar. It was further urged that under sub s (4) in the case of voluntary liquidation, the liquidator has to proceed after obtaining the sanction of the Court and therefore it was urged that the liquidator cannot institute criminal proceedings without such sanction in the case of winding up by the Court. Whatever may be the case of a liquidator under voluntary winding up sub section (1) of section 237 makes no such provision in the case of compulsory liquidation. Our attention was drawn to some passages from the Indian Companies Act by Sircar & Sen, 1937 Edition. At page 624 it is stated that the object of the section is to provide against abuses and indiscriminate commencement of prosecutions and also for the first time a provision has been made under this section for prosecutions being conducted as crown prosecutions. In a passage at page 628 it is stated: " But before the Court can exercise its jurisdiction it must come to the conclusion that in the course of winding up the person intended to be charged under this section has been guilty of an offence in relation to the company for which he is criminally liable. But such a finding is not to prejudice the accused in any way in his trial. Per Chitty J. in re Charles Denham & Co. Ltd. L.T. 570 at 571. " The procedure under section 237(1) as stated in this book at the same page is as follows: " The application should be made on a petition verified by an affidavit in which materials must be set out sufficient to make out a prima facie case. It is not quite settled as to whether the liquidator should make the application upon notice to any one. Generally the application should be ex parte, but 1271 the Court may direct notice to be given to any person who is in its opinion entitled to be heard ". These passages do not support the contention that before a prosecution can be validly instituted against a past director the sanction of the Court is necessary. Mr. Choudhuri then relied on an observation of Buckley J. In Re London and Globe Finance Corporation (1) also quoted in Sircar & Sen 's book at page 625. There the principles guiding the Court in ordering prosecutions have been laid down as follows: " I have next to consider upon what principles I ought to exercise the power given me by section 167 of the Companies Act, 1862, to direct the official receiver to institute and conduct a prosecution at the expense of the assets. It is obvious that no one legitimately can or ought to institute a criminal prosecution with a view to his personal profit. Neither should a prosecution be instituted from motives of vengeance against the offender. The motive of every prosecution ought, to be to inflict punishment upon the criminal for the proper enforcement of the law and for the advantage of the State and with a view to deter others from doing the like ". This passage does not support the giving of an opportunity to the offender before the Judge can give direction nor do they affect the powers of the liquidator to start a prosecution or the, criminal court to entertain a complaint when filed by the liquidator. The following passage from Buckley 's Company Law under the commentary under section 334 of the English Companies Act, 1948, which corresponds to section 237 of the Indian Companies Act was then referred to: " Proceedings will accordingly be taken by the Director of Public Prosecutions (or Lord Advocate) or not at all ". But this is because of the peculiar and express language of section 334 tinder which the Judge can only direct the liquidator to refer the matter to the Director of Public Prosecutions or to Lord Advocate as the case may be. In the English Act, special provision has been made for England saving the institution of (1) , 733. 1272 criminal proceedings by private prosecutors. Merely because no such provision has been made in regard to scotland does not affect the argument. Mr. Choudhuri then relied on certain English cases dealing with the mode of giving directions. In re Northern Counties Bank Limited(1) the Judge had ordered the liquidator to ascertain by circular the wishes of the creditors and after they had appeared to oppose the starting of the prosecution, it was held (1) that it did not sufficiently appear that the offence had been committed and (2) that as 2/3 of the creditors opposed the application the prosecution should not be ordered as expenses will have to be paid from out of the money belonging to the creditors. The main question for decision in that case was whether the prosecution should be at the cost and expense of the assets of the company but competency of the liquidator to file the complaint was not in dispute. Reference 'was then made to Palmer 's Company Precedents, 1952 Edition, Vol. II, again stating as to when leave to prosecute should be given but the law stated there does not support the case for the appellants. At page 605 it is stated : " The summons will be ex parte, and should be supported by affidavit showing a strong case for prosecution, and also the extent of the assets and liabilities. The court is not willing when the assets are small, to sanction proceedings which may swallow up or largely reduce those assets ". The form at p. 607 does not show that under the English Companies Act when liberty is given to prosecute the person accused is heard. All that is required is that the court will make its order upon affidavits etc. filed before it and it can also order that the costs and charges incurred by the liquidator shall be paid out of the assets of the company. It was next contended that although the language of section 237 was not in the negative form still the effect of the words was that no prosecution could be instituted without the sanction of the Court being obtained by the liquidator. In support of the submission counsel (1) 1273 relied on The Queen vs Cubitt (1) which was a case under the Sea Fisheries Act which created certain offences and by section 11 provided: "The provisions of this Act. . . shall be enforced by sea fishery officers ", who are defined by that section and it was held that the effect of the words was that no one except the sea fishery officer could prosecute an offence under the Act. But there are no such words of limitation in section 237. In Taylor vs Taylor(2) the words of the statute were "entitled to the possession or the receipt of the rents and profits" and it was held that the order under the statute could only be made upon a petition which was within the words above quoted and if there was no such person no order could be made but that again was decided on the peculiar language of the statute. Counsel also relied on Nazir Ahmad vs Crown (3) where it was held that if the statute authorises the doing of an act in one way then it had to be done in that way or not at all. The argument of Mr. Choudhuri really comes to this that the complaint filed on behalf of the official liquidator was incompetent in the absence of a direction under section 237 or without complying with the procedure laid down in that section. Section 237(1) does not lay down any procedure for the giving of directions and the provisions in regard to the action taken by the registrar do not have any relevancy to what the court should do before it gives directions. English cases that have been cited do not go to the extent of saying that no prosecution can be instituted without the sanction of the court. They deal with another subject and that is the circumstances in which the Judge would give directions for prosecution and would sanction the assets of the company to be expanded in prosecution. Besides nowhere has it been stated that the court cannot give directions without first hearing the persons accused or that the directions of the Judge are a condition precedent to the lawful institution of criminal proceedings by the liquidator. (1) (2) (3) (1936) L.R. 63 I.A. 372, 381. 1274 On the other hand it has been held that under section 179 of the Indian Companies Act no sanction is required for commencing a prosecution. In Jaswantrai Manilal Akhaney vs The State of Bombay (1) at the instance of the official liquidator a report was lodged with the police against the Managing Director of a Bank and the police submitted a charge sheet to the Magistrate. It was observed by Sinha J. at page 502: " In terms the section laws down the powers of the official liquidator. Such a Liquidator has to function under the directions of the court which is in charge of the liquidation proceedings. One of his powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the court. This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure ". It was also pointed out in this judgment that section 179 contains no words corresponding to the language of Drug Control Order, 1943, which was held to be a condition precedent for instituting prosecution in the case of Basdeo Aggarwalla vs King Emperor (2) nor are there any prohibitory words like those that are contained in sections 196 and 197 of the Criminal Procedure Code. In the former case no prosecution could be instituted without the previous sanction of the Provincial Government and the latter provides that " no court shall take cognizance. . . . There are two cases decided by two Indian High Courts which support the submission of the respondents ' counsel. In Emperor vs Bishan Sahai (3) it was held that the Companies Act nowhere provides that without the directions of a Judge no criminal prosecution can be instituted. In Mrityunjoy Chakravarti vs Provot Kumar Pal(4), it was held that neither section 179 nor section 237 indicates that if the liquidator takes action without a (1) ; (2) (3) I.L.R. (1937) All. (4) A.I.R. 1953 Cal. 1275 direction of the Court this action would be illegal or invalid or it would invalidate a prosecution. It would thus appear that both on the language of section 237(1) as well as on precedent the complaint made by the liquidator against the appellants suffers from no such infirmity as to make the proceedings null and void. The section contains no such words which indicate that such a prosecution cannot be instituted by a liquidator without the sanction of the Judge or that the Court cannot take cognizance of a complaint without such sanction or direction. Section 179 as the learned Chief Justice of Calcutta High Court has rightly pointed out, deals with the powers of liquidators to institute or defend proceedings with the sanction of the Court and section 237(1) deals with the powers of the Court to give directions for prosecution of delinquent directors, etc. It was further urged on behalf of the respondents that in the case before us there was a proper direction under section 237(1). The judgment of the High Court shows that before the learned Judge gave a direction on July 22, 1952, there were before him proper materials and, therefore, his sanction was perfectly valid, legal and proper. Before this order made by Bannerji J. there was an order of Bachawat J. dated January 15, 1951, under section 179 and, therefore, when the liquidator authorised his Assistant, respondent No. 1 to institute the proceedings he was entitled to do so. As we have said above even in the absence of such directions the legality of the criminal proceedings instituted would not be affected. Nothing that we have said in this judgment must be taken to be an expression of opinion which in any way affects the control by the Judge of proceedings in winding up or over the liquidators. We would, therefore, dismiss this appeal. Appeal dismissed. [/INST]The respondent 's predecessor in interest received notice under the East Punjab Utilisation of Lands Act, 1949 for bringing his uncultivated land under cultivation. Thereafter he sold a portion of his land by executing two sale deeds in favour of two different vendees for the purpose of utilising the sale proceeds to reclaim the remaining land. The re spondents fried suits for setting aside the sales, contend ing that the alienation was made without legal necessity, which were dismissed by the Trial Court. The first appeals were dismissed by the Senior Subordinate Judge. On second appeal a learned single judge of the High Court held that the sale in favour of the first vendee was for legal necessity only to the extent of Rs.1,O00 and the sale in favour of the second vendee was entirely without necessity. On a further appeal the Division Bench reversed the decision of the single judge with regard to first vendee holding that the sale was for necessity but upheld the decision with regard to second vendee holding that the sale in his favour was without legal necessity. Hence this appeal by the second vendee. Allowing the appeal, this Court, HELD: 1. The sale in favour of the second vendee was a valid sale and is not liable to be impugned by the represen tatives or the successors in interest of the vendor. [774E] 770 2. Under the provisions of the East Punjab Utilisation of Lands Act, 1949 a notice could be given requiring a land holder to bring uncultivated land under cultivation after reclamation within a period of 30 days from the date of issue of a notice in that regard. Failing this, the area could be resumed by the Government and leased out to some other cultivators or society for cultivation for a period of at least 8 years. [773B] 2.1 A land owner receiving a notice under the said Act has two options before him. He can either own his helpless ness to reclaim the land and permit it to be leased out by the Government to other persons for cultivation for a sub stantial period. Or he may decide that he should make an attempt to make atleast a part of the lands fertile by selling a portion of the land and reclaiming the rest with the help of the sale proceeds. A bona fide decision taken by him to exercise the latter option cannot be said not to be an act of good management. [773G H; 774A] 3. If the sale in favour of the first vendee in the same circumstances was a valid sale, it is very difficult to say that the sale in favour of the second vendee was not. The necessity for both the sales was the situation arising out of the receipt of the notice under the East Punjab Lands Utilisation Act. In fact the findings of the Trial Court and the first appellate court on this issue were findings of fact which did not call for interference by the High Court. [774A B] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 2764 of 1977. (From the Judgment and order dated 24 11 76 of the Delhi High Court in C.R.P. No. 1264/76). M. K. Ramamurthi and Faqir Chand for the appellant. P. N. Lekhi and Girish Chandra for the respondent. The Judgment of the Court was delivered by SHINGHAL J. , This appeal by special leave is directed against an order of the Delhi High Court dated November 24, 1976, dismissing the appellant 's writ petition in timing. The appellant was promoted to the post of Director in the All India Radio after some thirty years of service under the Government of India. She was working as Joint Director, Family Planning, in the Directorate General of the All India Radio, when she was served with an order dated March 26, 1976, retiring her prematurely from service, with immediate effect, on the ground that she had already attained the age of 50 years on April 11, 1972, and the President was of the opinion that her retirement was in the "public interest". The appellant made representation on April 6, 1976, but it was rejected on July 1, 1976. She therefore filed a writ petition in the Delhi High Court under article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude of one V. D. Vyas who took over as Chairman of the 204 Central Board of Film Censors from her on February 11, 1972. She also made a mention of the adverse remarks made by Vyas in her service record after she had ceased to work under him which, according to her, were "totally unfounded, biased, malicious and without any justification". She stated that "her integrity had never been considered doubtful 28 years before or 4 years after the period of 21 months she spent under him. " It was also contended that some baseless allegations were made against her because of "malicious vendetta" carried on by Vyas, and that the order of premature retirement was not in public interest but was "arbitrary and capricious", and that the retiring authority had not "applied its mind to the record" of her case. It was particularly pointed out that as he was confirmed in the post of Director on April 28, 1973, with retrospective effect from July 10, 1970, any adverse remark in her confidential report before that date could not legitimately form the basis of the order of her premature retirement. The appellant also pointed out that the order cast a stigma on her conduct, character and integrity and amounted to the imposition of one of the major penal ties under the Central Civil Services (Classification, Control and Appeal)Rules, 1965. It is not in controversy, and has in fact been specifically stated in the order of premature retirement dated March 26, 1976, that the appellant was retired in the "public interest" under clause (j) (i) of rule 56. of the, Fundamental Rules. That rule provides as follows, "(j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in. the public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of notice. (i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years. " It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and the procedure laid down in office memorandum No. F.33/13/61 Ests (A), dated 23rd June, 1969, of the Ministry of Home Affairs, Government of India. It is however the grievance of the appellant that her premature retirement was not made in accordance with the requirements of the rule and the memorandum, but was ordered because of malice, and was arbitrary and capricious as the Government did not apply its mind to her service record and the facts and circumstances of her case. It has been speci 205 fically pleaded that the power under F.R. 56(j)(i) has not been exercised "for the furtherance of public interest" and has been based on "collateral grounds". The appellant has pointed out in this connection that her service record was examined in March, 1976, by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she was retired because of bias and animosity. Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry. Mr. Lekhi, learned counsel for the Union of India, produced the, relevant record of the appellant for our perusal. While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant 's premature retirement. He went to the extent of saying that the Government was not in a position to support that unfair order. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law IS, however, quite different. Viscount Haldane described it as follows in Shearer and another vs Shield,(1) 'A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently. " Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether (1) at p. 813. 206 its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling vs Abergele Urban District Council(1), where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter. " The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in The Queen on the Prosecution of Richard West brook vs The Vestry of St. Paneras(2). " If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion. " This view has been followed in Sedlar vs Sheffield Corporation.(3) We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a nonexisting fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the ' 'public interest", to a purpose` wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist raust therefore be held to be infected with an abuse of power. So when it has been conceded by Mr. Lekhi that there was nothing on the record which would justify the impugned order dated March 26, 1976, of the appellant 's premature retirement under clause (j) (i) of (1) (2) at p. 375. (3) 207 Rule 56 of the Fundamental Rules, and that the Government was not in a position to support that unfair order, that order must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned. The appeal is allowed with costs and it is ordered accordingly. N.V.K, Appeal allowed. [/INST]The respondent obtained an ex parte maintenance award for a sum of Rs. 250/ p.m. from the Court of competent jurisdiction under Sec. 125 Crl. Subsequently, as a result of a compromise between the parties and resumption of cohabitation an application was made by the respondent praying that her application for maintenance be dismissed and the execution proceedings for recovery of maintenance be withdrawn. Though the Trial Court did not proceed to recover the arrears of maintenance it did not set aside the award. As the respondent was betrayed, she proceeded to enforce the order for maintenance. The petitioner resisted the application on the ground that resumption of cohabitation, after the original order for maintenance revoked the said order. This plea having been rejected right through the petitioner came up by way of special leave. Dismissing the petition, the Court, ^ HELD: the Criminal Procedure Code is complete on the topic and any defence against an order passed under section 125 Crl. P.C. must be founded on a provision in the Code. Section 125 b a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself, if the husband has a case under section 125(4)(S) or section 127 of the Code it ii open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or (S) or section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. [294G H, 295A] A statutory order can ordinarily be demolished only in terms of the statute. That being absent in the present case the Magistrate will execute the order for maintenance [295 B] Fazal Din vs Mt. Fatima, A.I.R 1932 Lahore P. 115; approved. Natesan Pillai vs Jayammani, A.I.R. 1960 Madras, U. Po Chein vs Ma Sein Mya, A.I.R. 1931 Rangoon, 89, Ampavalli Veerabhadrudu vs Ampavalli Gaviramma 1955 A.l. R. (Crl.) p. 244; over ruled. </s>

<s>[INST] Summarize the judgement67 of 1955. Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. M. C. Setalvad, Attorney General of India, C. K. Daphtary, Solicitor General of India, G. section Pathak, (J. B. Dadachanji, A. P. Sen, Rameshwar Nath and Rajinder Narain, with them), for the petitioners. T. L. Shevde, Advocate General of Madhya Pradesh (M. Adhikari and 1, N. Shroff, with him) for the State of Madhya Pradesh. 1955. September, 20. The Judgment of the Court was delivered by BHAGWATI J. The petitioners are a firm 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. They are registered as "dealer" for the purpose 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 511 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 vie* to assess and levy purchase tax on the transactions of purchases made by the petitioners as above. The petitioners filed under protest two returns dated the 11th September 1954 and 3rd December 1954 for the periods 3rd May 1954 to 29th July 1954 and 30th July 1954 to 26th October 1954 respectively but without prejudice to their right to challenge the validity of the assessment and levy of the said tax on the aforesaid transactions. The Sales Tax authorities further called upon the petitioners to deposit the alleged purchase tax which amounts to thousands of rupees in every quarter of the year. The petitioners thereupon filed this petition under article 32 of the Constitution for a writ of mandamus or any appropriate direction or order seeking to restrain the State of Madhya Pradesh and the Commissioner of Sales Tax, Madhya Pradesh, from enforcing the said Act and its provisions against the petitioners and for consequential reliefs. The petitioners averred that the imposition of tax on sale or purchase of tobacco rolled into bidis exported out of Madhya Pradesh in the manner described was in contravention of article 286 (1) (a) of the Constitution, that the tobacco purchased by them for the purpose of making bidis exported outside Madhya Pradesh was never intended for use as raw material for the making of bidis for the purpose of consump tion in Madhya Pradesh and section 4, sub section (6) of the Act had no application to the tobacco so used and there was no liability to pay the alleged tax and that to the best of the petitioners ' information tobacco bad not been notified by the State Government in the Gazette for the purpose of section 12(A) of the Act 65 512 and that the Sales Tax authorities, under the Act, were, 0therefore, not entitled to levy any tax on the petitioners. The petitioners also submitted that the transactions in question had taken place in the course of inter State commerce, 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 . The Respondents filed a return denying the contentions of the petitioners and submitted that the petitioners by purchasing tobacco which was entered in their registration certificate as raw material for the manufacture of bidis for sale by actual delivery in Madhya Pradesh for consumption in that State made themselves liable to pay the tax by exporting bidis to other States and thus utilising it for a different purpose under section 4(6) of the Act. They admitted that the petitioners imported tobacco from the State of Bombay in large quantities but stated that the tobacco, after its arrival in the petitioners ' bidi fac tories, was cleaned, sieved and blended. A few more facts relevant for the decision of this petition may be stated in this context. Not only the petitioners but also the dealers in Bombay who sell or supply tobacco to the petitioners are registered as "dealers" for the purpose of the Central Provinces and Berar Sales Tax Act, 1947. The petitioners are the holders of a certificate of registration, No. LDG/ 53 obtained by them under Rule 8 of the Central Provinces and Berar Sales Tax Rules, 1947. When making purchases of the tobacco in question they also made declarations in the form required by Rule 26(II) declaring that they had purchased the said goods from Shri Shah Chhaganlal Ugarchand Nipani, a dealer holding registration certificate No. BMY/93/ MP and from Shri Maniklal Chunanlal Baroda, a dealer holding registration certificate No. BMY/341MP on different dates therein mentioned for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. in the return which 513 was filed by the petitioners for the quarter beginning from 3rd May 1954 and ending with 29th July 1954, the petitioners mentioned Rs. 16,47,567 3 3 as the purchase price of goods purchased on declaration as being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose. In the return which was filed by them for the quarter beginning from 27th July 1954 and ending with 26th October 1954, they did not fill in any figure but showed the above item as blank contending that the Sales Tax authorities were not entitled to levy any purchase tax against them in respect of the same. The learned Attorney General appearing for the petitioners before us contended (1) that the transactions in question were in the course of inter State commerce and were, therefore, within the ban of article 286(2) and the State of Madhya Pradesh had no authority to impose or to authorise imposition of tax on these transactions, (2) that in any event the goods were delivered for consumption in the State of Uttar Pradesh and were not liable to a levy of tax at the instance of the State of Madhya Pradesh, (3) that section 4(6) of the Act was invalid inasmuch as it offended against the provisions of article 286(1) (a), and lastly (4) that even if the above contentions were negatived, section 4(6) of the Act had, on its true construction, no application to the facts of the present case. He, however, urged that if the Court was with him on his first contention, viz. that the transactions in question took place in the course of interState commerce it was not necessary to go into the other contentions. We are of the opinion that this contention of the learned Attorney General is sound. It was in fact admitted by the Respondents in their return that the petitioners imported tobacco from the State of Bombay in large quantities. The Bombay suppliers processed tobacco in their godowns situated within the State of Bombay and supplied the finished tobacco 514 to the petitioners in Madhya Pradesh. The petitioners imported this finished tobacco into Madhya Pradesh from these suppliers who were carrying on business in the State of Bombay and there was of necessity, as a result of these transactions, the movement of the goods across the border. As a result of the transactions entered into by the petitioners with these suppliers the finished tobacco which was supplied to the petitioners moved from the State of Bom bay to the State of Madhya Pradesh and these transactions were, therefore, in the course of inter State trade or commerce. The only answer which was made by the learned Advocate General of Madhya Pradesh was that Shri Shah Chhaganial Ugarchand Nipani and Shri Maniklal Chunanlal Baroda were themselves dealers holding registration certificates Nos. BMY/93/MP and BMY/ 341 MP being registered as such under the provisions of the Central Provinces and Berar Sales Tax Act, 1947, and that, therefore. the transactions were between two registered dealers in the State of Madhya Pradesh and therefore constituted purely internal sales of the goods. If they were thus internal sales there was no question of their being transactions in the course of inter State trade or commerce and therefore they were not subject to the ban imposed under article 286(2). This answer suffers from over simplification. No doubt, the dealers who supplied the finished tobacco to the petitioners were registered dealers under the Central Provinces and Berar Sales Tax Act, 1947, but that fact by itself would not be sufficient to invest the transactions which otherwise were in the course of inter State trade or commerce with the character of intra state transactions or internal sales or purchases. What one has got to look at is the real nature of the transactions and not the outside form. A person who carries on business of selling or supplying goods in Madhya Pradesh and who comes within the definition of "dealer" given in section 2(c) of the Act has, under pain of penalty visited upon him under section 24 of the Act, to register himself as a dealer 515 and possess a registration certificate under section 8 (1) of the Act. Merely because he got himself registered as such to avoid the penalty which would otherwise be visited upon him by the State it cannot be stated that 'Whatever transactions he entered into with other dealers in the State of Madhya Pradesh were all intraState transactions or internal sales or purchases irrespective of the fact that the transactions involved movement of the goods across the border and were clearly transactions of sale of goods in the course of inter State trade or commerce. We were taken by the learned Attorney General through the several provisions of the Act and we are confirmed in our opinion that these transactions sought to be taxed by the Sales Tax authorities of the State of Madhya Pradesh were transactions in the course of inter State trade or commerce. The activities of selling or 'supplying goods in Madhya Pradesh if carried on habitually would amount to a carrying on of the business of selling or supplying goods in the State of Madhya Pradesh and even an outside merchant who indulged in such activities may in such event be said to be carrying on business in Madhya Pradesh and would come within the definition of "dealer" given in section 2(c) of the Act. When we come, however, to section 8 which deals with the registration of dealers, that section requires that a dealer while being liable to pay tax under the Act shall not carry on business as a dealer unless he has been registered as such and pos sesses a registration certificate. The liability to pay tax under the Act is thus postulated and unless and until a person is liability to pay such tax he need not get himself registered as a dealer. All the transactions entered into by a registered dealer, however, do not necessarily import a liability to pay tax under the Act because, whenever the question arises in regard to his liability to pay any tax under the Act, such liability would have to be determined in spite of his being a registered dealer with reference, inter alia, to the provisions of section 27 A of the Act which in corporates within its terms the bans which have been imposed on the powers of the State Legislatures to 516 tax under article 286 (1)(a) and (2) of the Constitution. If, therefore, a dealer who has got himself registered as dealer under the provisions of section 8(1) of the Act is sought to be made liable in respect of transactions of sale effected, by him he could claim exemption from such liability if the transactions of sale or purchase took place in the course of inter State trade or commerce after the 31st March, 1951, except in so far as Parliament may by law otherwise provide. In the case before us there was no such provision made by Parliament and the transactions in question were all after the 31st March, 1951, with the result that the ban imposed by article 286(2) was in opera tion and if the transactions took place in the course of inter State trade or commerce not only were Shri Chhaganlal Ugarchand Nipani and Shri Maniklal Chunanlal Baroda exempt from the liability to pay the tax on these transactions but the petitioners also were similarly exempt. No liability, therefore, could be imposed either for Sales Tax or for Purchase Tax within the terms of the Act on these transactions which as above stated took place in the course of interState trade or commerce. It was, however, urged that the petitioners had made declarations at the time of making the purchases of this finished tobacco that they had purchased the said goods for use as raw materials in the manufacture of goods for sale for actual delivery in Madhya Pradesh for the purpose of consumption in that State and that by virtue of the provisions of section 4(6) of the Act they were liable to pay the purchase tax on the purchase price of goods which had been utilised for any other purpose. Whatever steps the State of Madhya Pradesh may be able to take in regard to non compliance with the terms of the declarations by the petitioners, we are clearly of opinion that the State of Madhya Pradesh is restrained from imposing any tax on the transactions of purchase or sale which take place in the course of inter State trade or commerce and no question of liability of the petitioners by virtue of such declarations survives because even initially Shri Shah Chhaganlal Ugar 517 chand Nipani and Shri Maniklal Chunanlal Baroda were not liable to pay any tax on these transactions nor could any such liability for tax be transferred to the petitioners by virtue of such declarations. If, therefore, there was no basis for any such liability, the declarations by themselves cannot create any ' new liability and the petitioners cannot be held liable to tax even by the operation of section 4(6) of the Act, the very basis of the liability sought to be im. posed therein having disappeared. The result, therefore, is that the Respondents will be restrained from enforcing the Central Provinces and Berar Sales Tax Act, 1947, and its provisions against the petitioners and from imposing a tax in respect of the transactions in question and in particular from imposing a tax on the purchase price of goods purchased on the declarations under Rule 26 being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose tinder the provisions of section 4(6) of the Act. The Respondents will pay the peti tioners ' costs of this petition. [/INST]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. </s>

<s>[INST] Summarize the judgementvil APPEAL No. 198 of 1956. Appeal from the judgment and decree dated August 24, 1950, of the Allahabad High Court in Execution First Appeal No. 399 of 1947. Gopi Nath Kunzru and Ganpat Rai, for the appellants G. section Pathak and G. C. Mathur, for the respondent. October l 2. The Judgment of the Court was delivered by SHAH, J. The Banaras Bank Ltd. a public limited company having its registered office at Banaras (hereinafter referred to as the Bank) was ordered on March l, 1 940 to be compulsorliy wound up by the High Court of Judicature at Allahabad, and the Official Liquidator was appointed to conduct the proceedings in winding up. On September 12, 1942, an order was made by the High Court under section 187 of the Indian Companies Act, 1913 (VII of 1913) for payment of unpaid calls and the appellants Jyoti Bhushan Gupta. and Gokul Chand, whose names had been placed on the list of contributors, were directed to pay with interest Rs. 95,178/5/9 to the official Liquidator of the Bank. This order was, by virtue of section 199 of the Act, enforceable in the manner in which the decree of the High Court made in any suit pending therein may be enforced. On September 12, 1946, the order was transferred to the District Judge, Allahabad for execution. On September 23, 1946, the official Liquidator applied to the District Court, Allahabad for execution of the order dated September 12, 1942, and prayed that certain amounts due to the appellants be attached in satisfaction of the claim. The execution proceedings were transferred by the District Judge 75 to the Civil Judge, Allahabad. The appellants contended Inter alia that as the application for execution was not preferred within 3 years of the order for payment as prescribed by article 182 of the First Schedule of the Limitation Act it was barred by the law of limitation. The official Liquidator contended that the application was governed by article 183 of the Act and that, in any event, certain part payments having been made towards the claim by the appellants, the period of limitation was extended thereby. At the hearing, the alternative plea of part payment was abandoned by the Official Liquidator. The Civi1 Judge held that the application for execution was barred limitation as it was not preferred within 3 years from the order of the High Court. In appeal to the High Court of Allahabad, the order passed by the Civil Judge was reversed and the proceedings were remitted to the Civil Judge with a direction to restore the execution application to its original number and to proceed with it according to law. Against that order with certificate of fitness granted by the High Court under article 133 of the Constitution, this appeal is preferred. Counsel for the Company contended that the order passed by the High Court not being a final order the appeal on certificate granted by this High Court is not maintainable. We have not thought it necessary, having regard to the importance of the question raised by the appellants and the fact that this Court may in a proper case regularise the proceeding in this Court by granting special leave, even if certificate under article 133 of the Constitution could not be issued by the High Court, to hear the parties on the question as to the maintainability of the appeal OD the certificate and have heard the appeal on the merits. We are of the view that the appeal must fail on the merits. 76 article 182 of the Indian Limitation Act provides a period of 3 years for an application for execution of a decreer an order of any Civil Court not provided by article 183 or section 48 of the Code of Civil Procedure, 1908 (V of l908). By article 183 a period of l2 years for enforcing a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction is prescribed and the period commences to run from the date on which a present right to enforce the judgment, decree or order accrues to some person capable of. releasing the right. The order sought to be executed was not passed by the High Court in the trial of a suit: it was passed in exercise of the jurisdiction conferred upon the High Court by section 187 of the Indian Companies s Act, 1913. Section 3 of the Indian Companies Act by sub s.(1) enacts that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate. By the proviso, the Central Government may by notification in the official Gazette empower any District Court to exercise all or any of the jurisdiction conferred upon the High Court. But it is common ground that no notification conferring jurisdiction and empowering the District Court at Banaras where the registered office of the company is situate to pass orders under B. 187 has been issued. The High Court was therefore the only Court competent to direct under B. 187 of the Indian Companies Act payment of the amount due from the appellants. Counsel for the appellants contends that the authority exercised by the High Court in directing payment under section 187 of the Indian Companies Act, 1913, is neither ordinary, nor original civil. He submits that by section 187 a special power is vested in the High Court by the Indian Companies Act, 1913, which is exercisable in its extraordinary jurisdiction. To appreciate this argument it is necessary to refer to the statute authorising the establish 77 ment of the High Court, and the Letters Patent constituting the same. The High Court for the North Western Province, of which the Allahabad High Court is the successor, was constituted by the Letters Patent issued on March 17, 1866, in exercise of the powers conferred by cl. 16 of the Charter Act of 1861 (24.25 Vict. C. 104). By that clause, Her Majesty the Queen was authorised to establish a High Court and to invest the High Court with such jurisdiction, powers and authority as under the Charter Act may by cl. 9 be conferred upon the High Court to be established in any of the presidencies, i. e., calcutta, Bombay and Madras. The High Courts of Calcutta, Bombay and Madras, which were popularly known as the Presidency High Courts were by cl. 12 of their respective Letters Patent invested with ordinary original civil jurisdiction to entertain and try suits of every description subject to the restriction as to territorial limitations contained in cl. 11 thereof. But by its Letters Patent, the High Court for the North Western Province was not invested with jurisdiction to entertain civil suits in exercise of its ordinary original civil jurisdiction. Counsel for the appellants submits that Art.183 applies only to decrees and orders passed by the High Courts established by the Royal Charter, which by their constitution are authorised to entertain, hear and try civil suits in exercise of their ordinary civil jurisdiction, and as no such power was conferred upon the Allahabad High Court, the order sought to be executed was not passed in exercise of the ordinary original civil jurisdiction. It is true that when the Letters Patent were issued the High Court had no jurisdiction under a law relating to companies of the nature exercised by the High Court, the character whereof falls to be determined in this appeal. But by cl. 16 of the Charter Act and cl. 35 of the Letters Patent of the Allahabad High Court jurisdiction 78 which Was not initially conferred upon the High Court could the conferred by legislation within the competence of the Governor General in Council and the Governor in Council. By the Companies Act of 1913, the High Court was invested with jurisdiction to order payment of the amounts due by debtors of companies ordered to be wound up. This jurisdiction may be invoked as of right against all persons whose names are placed on the list of contributors. The jurisdiction is ordinary: it does not depend on any extraordinary action on the part of the High Court. The jurisdiction is also original in character because the petition for exercise of the jurisdiction is entertainable by the High Court as a court of first instance and not in exercise of its appellate jurisdiction. Again by section 187 no special jurisdiction is conferred. The High Court adjudicates upon the liability of the debtor to pay debts due by him to the Company: the jurisdiction is therefore civil. Normally, a creditor has to file a suit to enforce liability for payment of a debt due to him from him debtor. The Legislature has by section 187 of the Companies Act empowered the High Court in a summary proceeding to determine the liability and to pass an order for payment, but on that account the real character of the jurisdiction exercised by the High Court is not altered. Nor is there any substance in the contention that the authority to order payment of a debt under section 187 is merely a power of the High Court and not its jurisdiction. By section 3 read with section 187 of the Companies Act the High Court has jurisdiction to direct payment of the amount due by a contributory: and an order passed for payment manifestly is an order passed in exercise of the jurisdiction vested in the High Court by section 3 read with 8. 187 of the Companies Act. The Judicial Committee of the Privy Council was called upon In the matter of Candas Narondas Navivahu and C. A. Turner(1) to determine the true (1) I. L. R. (1889) 13, Eom. 79 nature of the jurisdiction exercised by the High Court of judicature at Bombay in respect of insolvent debtors. The Privy Council held that article 180 of Schedule II of the Indian Limitation Act XV of 1877 (which was similar to article 183 of the Indian Limitation Act, l908) applies to a judgment of a Court for the relief of insolvent ebtors entered up in the High Court, in accordance with section 86 of the Statute 11 and 12 Vic., c. 21. It was held in that case that although a Court exercising insolvency jurisdiction determines the substance of the question relating to an insolvent 's estate, the, proceedings in execution and the judgment are the High Court 'section The judgment is entered up in the ordinary course of the duty cast upon the High Court by the law, not by way of special or extra ordinary action, but in the exercise of its ordinary original civil jurisdiction. Lord Hobhouse delivering the judgment of the judicial committee observed: "But it was strongly contended at the bar that this jurisdiction though civil and original, was not ordinary: and Mr. Rugby argued that the passages of the Charter which have just been epitomised divide the jurisdiction into four classes ordinary original, extraordinary original, appellate, and those special matters which are tho subject of special and separate provisions. But their Lordships are of the opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders. They are confirmed in this view by observing that, in the next group of clauses which indicated the law to be applied by the Court to the various clauses of cases, there is not a four fold division of jurisdiction, but a three fold one, into ordinary, extraordinary, 80 and appellate. The judgment of 1868 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with. It was, therefore, entered up in exercise of the ordineary original civil jurisdiction of the High Court. " Council for the appellants contended that by cl. 18 of the letters Patent the High Court of Bombay was invested with insolvency jurisdiction whereas the High Court of Allahabad is not invested by the Letters Patent with any jurisdiction in the matter of companies and therefore the principle of "In re Candas Narondas" does not apply. But under cl. 18 of the Letters Patent a Judge or Judges of the High Court are to sit as a Court for relief of insolvent debtors and powers and authorities with respect to original and appellate jurisdiction are to be deter mined by reference to the law relating to insolvent debtors. The jurisdiction to deal with the claims of companies ordered to be wound up is conferred by the Indian Companies Act and to that extent the Letters Patent are modified. There is, however, no difference in the character of the original civil jurisdiction which is conferred upon the High Court by Letters Patent and the jurisdiction conferred by special Acts. When in exercise of its authority conferred by a special statute the High court in an application presented to it as a court of first instance declares liability to pay a debt, the jurisdiction exercised is original and civil and if the exercise of that jurisdiction does not depend upon any preliminary step invoking exercise of discretion of the High Court, the jurisdiction is ordinary. In P. T. Munia Servai v The Hanuman Bank Ltd, Tanjore (1), a Division Bench of the Madras (I) 1. L. R. 81 High Court by the Banking Companies Act, ]949 (X of 1949) is part of its ordinary civil jurisdiction within the meaning of article 183 of the Limitation Act and an order passed in exercise of its ordinary original Civil Jurisdiction is governed by article 183 and not by article 182 of the Limitation Act. In that case on an application preferred by the Official Liquidator of the Hanuman Bank Ltd., a direction for payment by the High Court of certain sums of money by the appellant Munia on or before a certain date was made. To an application for enforcement of that liability article 183 of the Limitation Act was held applicable. In our view, the High Court was right ill holding that the application for execution filed by the official Liquidator was within limitation. The appeal, therefore, fails and is dismissed with costs. Appeal dismissed. [/INST]The appellant took lease of an open land for construction of buildings suitable for residential, business, industrial or office purposes. The appellant brought suits in the City Civil court, Bombay, for the recovery of arrears of rent in respect of premises built on the said open land, all within the city of Bombay thus in the area specified in Schedule I of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The appellant stated in the Plaint itself that the Bombay Rent Control Act, 1947, did not apply to the dcmiscd premises. The defendants pleaded that the Rent Act applied and the City Civil Court had no jurisdiction to try the suit. The trial judge held that part II of the Rent Act applied to the premises and consequently only the special courts specified in section 28 of the Rent Act had jurisdiction to entertain the suit and ordered the plaints in the suits to be returned to the plaintiff, for presentation to the proper court. The Bombay High Court summarily dismissed the appeals from the said orders. The point at issue for decision was whether "when a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business, this amounts to "Letting for residence" or "letting for business". The appellants ' contention was that as open land not intended to be used, as it is, for residence or business but for construction of buildings for residence or business was taken on lease the land was not being let for residence or business. Held, that the words "let for residence, education, business or storage" in s.6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are wide enough to include a letting for the achievment of these purposes by construction of buildings as also without construction of buildings. Held, further, that on the facts of the present case, in each of these cages, the lease was taken with a view to construct, buildings thereon for residential, business, industrial or office purposes and the land let was therefore 'premises ' to 929 which under section 6(1) of the Bombay Rent Act, the provisions of Part II of the Act applied. Vinayak Gopal v Laxman Kashinath I. L. R. , approved. </s>

<s>[INST] Summarize the judgementAppeal No. 315 of 1962. Appeal by special leave from the judgment and order dated November 16,1960 of the Andhra Pradesh High Court in A.S. No. 397 of 1957. A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellant. D.Narasaraju, Advocate General for the State of Andhra Pradesh, T.V.R. Tatachari and P.D, Xenon, for the respondent. January 25. The judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question which arises in this appeal is whether the suit instituted by the appellant, Firm of Illury Subbayya Chetty & Sons, in the court of the Subordinate judge at Kurnool, seeking to recover Rs. 8,349/ from the respondent, the State of Andhra Pradesh, on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939 (Mad. IX of 1939) (hereinafter called the Act) for the years 1952 54 is competent or not ; and this question has to be determined in the light of the scope and effect of section 18 A of the Act. 756 The appellant is a firm of merchants carrying on commission agency and other business at Kurnool and as such, it purchases and sells ground nuts and other goods on behalf of principles for commission. For the year 1952 53 the Sales tax authorities included in the appellant 's taxable turnover an amount of Rs. 3,45,488/12/10 representing groundnut sales and collected the tax on the total turnover from it in September, 1953 when the amount of the said tax was determined and duly adjusted. The said turnover of Rs. 3,45,488/12/10 in fact represented sales of groundnuts and not purchases and tax was recovered from the appellant on the said amount illegally inasmuch as it is only on purchase of groundnuts that the tax is leviable. As a result of this illegal levy, the ' appellant had to pay Rs. 5.398/4/3 for the said year. Similarly, for the subsequent year 1953 1954 the appellant had to pay an illegal tax of Rs. 1,159/11/,9. In its plaint, the appellant claimed to recover this amount together with interest @ 12% per annum and that is how the claim was valued at Rs. 8,349/ . This claim was resisted by the respondent on two grounds. It was urged that the suit was incomepetent having regard to the provisions of section 18 A of the Act; and on the merits it was alleged that the transactions in regard to groundnuts on which s lestax was levied and recovered from the appellant were transactions of purchase and not of sale. In this connection, the respondent referred to the fact that the appellant itself had included the transaction in question in the return submitted by it in form A and that it was making payments tentatively every month to be adjusted after the final assessment was made at the end of the year. Accordingly, the final adjustment was made in September and the total amount due from the appellant duly recovered. Thus, the appellant having voluntarily made the return and paid the taxes, it was not open to him to 757 contend that the transactions in regard to groundnuts were not taxable under the Act. Besides, the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial taxes or to the Sales Tax Appellate Tribunal ; and so, it had not availed itself of remedies provided by the Act. On these pleadings, the trial Court framed three principal issues. The first issue was whether the suit was barred by section 18 A of the Act; the second was whether there had been excess collection of sales tax for the two years in question and if so, how much ? And the third issue was whether the appellant was estopped from questioning the validity of the assessment ? According to the trial court, the respondent had failed to prove its pleas against the apppellant 's claim and so, it recorded findings in favour of the appellant in all the three issues. In the result, a decree followed in favour of the appellant for the recovery of Rs. 6,558/ with interest 6% per annum from November 12, 1955 till the date of payment. This decree was challenged by the respondent by preferring an appeal before the High Court of Andhra Pradesh. It appeared that the decision of the said High Court in the case of State of Andhra Pradesh vs Shri Krishna Cocoanut Co. (1), was in favour of the view taken by the trial Court ; but the respondent urged before the High Court that the said decision was erroneous in law and require reconsideration. That is why the respondent 's appeal was placed before a Full Bench of the High Court. The Pull Bench has upheld the contentions raised by the respondent. It has held that in view of the provisions of section 18 A of the Act, the suit is incompetent. Alternatively, it has found that on the merits, the claim made by the appellant was not justified. The result of these findings was that the respondent 's appeal was allowed and the appellant 's suit was dismissed (1) (1960) 1 Andhra W.R.279. 758 with costs. The appellant had filed cross objections claiming additional interest on the decretal amount, but since its suit was held to be incompetent by the High Court, its cross objections failed and were dismissed with costs. it is against this decree that the appellant has come to this Court by special leave. Mr. Ranganathan Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant 's suit was incompetent because he argues that the High Court has misjudged.the effect of the provisions of section 18 A In dealing With the question wether civil courts jurisdiction to entertain suit is barred or not it is necessary to bear in mind the fact that 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 that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that 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. It is, therefore,necessary to enquire whether s.18 Aexpressly or by necessary implication excludes the jurisdiction of the civil court to entertain a suit like the present. Section 18 A provides that no suit or other Proceeding shall, except as expressly provided in this Act. be instituted in any Court to set aside or modify any assessment made under this Act. It is common ground that there is no express provision made in the Act under which the present 759 suit can be said to have been filed, and so, it falls under the prohibition contained in this section. The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if, by instituting the suit, the plaintiff wants to set a side or modify any assessment made under this Act. There is therefore, no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it. It is, however, urged by Mr. Chetty that if an order ',of assessment has been made illegally by the appropriate authority purporting to exercise its powers under the Act, such an assessment cannot be said to be an assessment made under this Act. He contends that the words used are "any assessment made under this Act" and the section does not cover cases of assessment which are purported to have been made under this Act. In support of this argument he has referred us to the provisions of section 17 (1) and section 18 where any act done or purporting to be done under this Act is referred to. It would, however, be noticed that having regard to the subject matter of the provisions contained in sections 17 (1) and 18 it was obviously necessary to refer not only to acts done, but also to acts purporting to be done under this Act. Section 17 (1) is intended to bar certain proceedings and section 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or porting to be done. It was wholly unnecessary purl to refer to cases of assessment purporting to have been made under this Act while enacting section 18 A, because all assessments made under this Act would attract the provisions of section 18 A and that is all that the legislature intends section 18 A to cover. The expression " 'any assessment made under this Act" is, in our opinion, wide enough to coverall 760 assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected 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 s.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 the accuracy of the order passed by the assessing authority. In determining the applicability of s.18 A. the only question to consider is: "Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not?" It would be extremely anomalous, to hold that it is only an accurate and correct order of assessment which falls under s.18 A. Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under s.18 A. In this connection, it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of matters covered by s.18 A, the legislature has taken the precaution of safeguarding the 'citizens ' rights by providing for adequate alternative remedies. Section 11 of the Act provides for appeals to such authority as may be prescribed; section 12 confers revisional jurisdiction on the authorities specified by it; s.12 A allows an appeal to the appellate Tribunal; s.12 B provides for a provision by the High Court under the cases specified in it; s.12 C provides for an appeal to the. High Court; and section I 2 D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not 761 less than two judges. The matter can even be brought to this Court by way of a petition under article 130 of the Constitution. It would thus be seen that and dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail him self of the remedies provided in that behalf by these sections of the Act. It is in the light of these elaborated alternative remedies provided by the Act that the scope and effect of s.18 A must be judged. Thus considered, there can be no doubt that where and order of assessment has been made by an appropriate authority the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose would be barred under section 18 A. The facts alleged by the appellant in this case are somewhat unusual. The appellant itself made voluntarly returns under the relevant provisions of the Act and included the groundnut transactions as taxable transactions. It was never alleged by the appellant that the said transactions were transactions of sale and as such, not liable to be taxed under the Act. It is true that under s.5A(2) groundnut is made liable to tax under s.3(1) only at the point of the first purchase effected in the State by a dealer who is not exempt from taxation under section 3(3), but at the rate of 2% on his turnover. 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 under s.5A(2). In other words, the appellant itself having conceded the taxable character of the transactions in question, no occasion arose for the taxing authority to consider whether the said transactions could be taxed or not; and even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge 762 before the appellate authority that the transactions were sale transactions and as such, were outside the purview of s.5A(2). If the appellant had urged that the said transactions were outside the purview of the Act and the taxing authority in the first instance had rejected that contention, there would be no doubt that the decision of the taxing authority would be final, subject, of course, to the appeals and revisions provided for by the Act. The position of the appellant cannot be any better because it did not raise any such contention in the assessment proceedings under the Act. If the order made by the taxing authority under the relevant provisions of the Act in a case where the taxable character of the transaction is disputed is final and cannot be challenged in a civil court by a separate suit, the position would be just the same where the taxable character of the transaction is not even disputed by the dealer who accepts the order for the purpose of the Act and then institutes a suit to set it aside or to modify it. The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secretary of State vs Mask. & Coy., (1) the Privy Council was dealing with the effect of the provisions contained in section 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power 'of revision conferred by section 191, be final. Dealing with the question about the effect of this provisions the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that (1) (1940) 67 I.A. 222,236, 763 "it is also well settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. " It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the 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 to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, 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 this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the 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. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject matter of a suit because section 18 A clearly bars such a claim in the civil courts. The next decision to which reference may be made was pronounced by the Privy Council in the 764 case of Releigh Investment Coy. Ltd. vs GovernorGeneral in Council (1). In that case the effect of section 67 of the Indian Income tax Act fell to be considered. The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. It would be noticed that the words used in this section are exactly similar to the words used in section 18 A with which we are concerned. In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the judgment, though by no means conclusive, marches with a construction 'of the section which denies an alternative jurisdiction to enquire into the same subject matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income tax Act; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under section 66 (1) of the Act. ' It is not necessary for us to consider whether this assum ption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal. The clause "assessment made under this Ace ' which occurs in section 18 A. also occurs in section 67 with (1)(1947) 74 I.A. 50, 68. 765 which the privy Council was concerned, and in construing the said clause, the Privy Council observed that "the phrase "made under this Act" describes the provenance of the assessment : it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test " These two Privy Council 's decisions support the conclusion that having regard to the scheme of the Act, section 18 A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present. In the result, we must hold that the view taken by the High Court is right and so, the appeal fails and is dismissed. There would be no order as to Appeal dismissed. [/INST]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. </s>

<s>[INST] Summarize the judgementivil Appeal No. 809 of 1966. Appeal by special leave from the judgment and order dated February 13, 1965 of the Assam and Nagaland High Court in Civil Rule No. 127 of 1963. Niren De, Solicitor General, A.N. Kirpal, S.P. Netyar for R.N. Sachthey for the appellants. M.C. Setalvad and D.N. Mukherjee, for the respondent. D.M. Sen, Advocate General for the State of Nagaland, A.R. Barthakur and R. Gopalakrishnan, for the intervener. The Judgment of the Court was delivered by Hegde, J. The only question that arises for decision in this appeal is whether the exclusion of the government servants from the exemption given under section 4(3)(xxi) of the Indian Income Tax Act, 1922 and later on under section 10(26) of the Income Tax Act, 1961 is violative of article 14 of the Constitution. For our present purpose it may be taken that the said two provisions are similar. The respondent who is a government servant serving in the State of Assam has been assessed to income tax for the assessment years 1959 60, 1960 61, 1961 62 and 1962 63. He challenged the legality of his assessments in civil rule No. 127 of 1963 on the file of the High Court of Judicature of Assam. The Assam High Court accepted his petition and quashed the assessments in question holding that section 4(3)(xxi) of the Indian Income tax Act. 1922 as well as section 10(26) of the Income Tax Act, 1961 to the extent they excluded government servants from the benefit of the exemption given thereunder are void. The income tax authorities as well as the Union of India have come up to this Court in appeal by special leave. The facts of this case lie within a narrow compass. The respondent belongs to Mikir Scheduled Tribe and is a permanent inhabitant of United Khasi Jaintia Hills District, an autonomous, District included in Part 'A ' of the Table appended to Paragraph 167 20 of the Sixth Schedule of the Constitution of India. He is a government servant. All these are admitted facts. The respondent in his petition before the High Court averred (in para. 7 of the petition) that "in all the autonomous districts under Table, Part A of paragraph 26 of the Sixth Schedule of the Constitution of India, there are a large number of persons belonging to Scheduled Tribe who derive considerable income from trade, commerce and business and other sources and employments and immovable properties". In the return filed by the appellants those allegations were not denied. Adverting to those allegations this is what was stated in the affidavit filed by Shri S.K. Dutta, Income tax Officer (the first appellant in the appeal): "With reference to the statements made in paragraph 7 of the petition I say that the petitioner being a government servant his case stands on a different footing other than the general public of the Scheduled Tribe. " It may be remembered till 15 8 47, Khasi and Jaintia Hills were not parts of British India. They were under native States. They merged with British India only after this country got independence. Till their merger, none of the Indian laws applied to those areas. The Finance Act of 1955 incorporated into the Indian Income Tax Act,1922, s.4(3) (xxi). The relevant portion of section 4(3) reads thus: 4(3). "Any income profits, or gains falling within the following classes shall not be included in the total income of the person receiving them." (xxi). "Any income of a member of a Scheduled Tribe, as defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part`A or Part B of the table appended to paragraph 20 of the Sixth Schedule to the Constitution, provided that such member is not in the service of Government." Sec. 10(26) of the income tax Act of 1961 which corresponds to section 4(3)(xxi) of the Indian Income Tax Act, 1922, reads thus : "In the case of a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area 'specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government. any income which accrues or arises to him, (a) from any source in the area or Union Territories aforesaid, or (b) by way of dividend or interest on securities. " 168 Part of the impugned assessments were made under the Indian Income Tax Act, 1922 and the rest, under the Income Tax Act, 1961. If the aforementioned provisions are valid, then the assessments in question are beyond challenge. Therefore the only question for decision is whether the legislature had no power to exclude the government servants from the benefit of the exemptions given under the aforementioned ss.4(3) (xxi) and 10(26). It is seen that the income of the members of a scheduled tribe included in cl. 25 of article 366 of the Constitution and residing in my area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution, excepting 1hat of government servants is exempt from income tax. in other words, the government servant alone is excluded from the, benefit of the exemption given under the provisions quoted above. It is agreed that the respondent is a member of the scheduled tribe included in cl. 25 of article 366 of the Constitution, residing in an area specified in Part A of the Table appended to para. 20 of the Sixth Schedule to the Constitution, but yet he had been denied the benefit of the exemption in question on the sole ground that he is in the service of the government. It may be noted that exemption both under section 4(3)(xxi) of the Indian Income Tax Act, 1922 and under s.10(26) of the Income Tax Act, 1961 was given to the members of certain scheduled tribes. For the purpose of the exemption in question the classification was made on the basis of persons being members of a particular tribe. That being so, some of the members of that tribe cannot be excluded from the benefit of those provisions unless they can be considered as belonging to a well defined class for the purpose of income tax. The respondent 's contention which has been accepted by the High Court is that the government servants cannot be considered as a separate class for the purpose of income tax. On the other hand it is contended on behalf of the Department that the classification made is a reasonable one, taking into consideration administrative convenience as well as the past legislative practice and history. It is not in dispute that taxation laws must also pass the test of article 14. That has been laid down by this Court in Moopil Nair vs State of Kerala(1). But as observed by this Court in East India Tobacco Co. vs State of Andhra Pradesh(2), in deciding whether a taxation law is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others; it is only when within the range of its selection, the law operates un (1) ; (2) ; , 409. 169 equally, and that cannot be justified on the basis of any valid classification, that it would be violative of article 14. It is well settled that a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably. The complaint in this case is that within the range of the selection made by the State for the purpose of exemption, namely, members of certain scheduled tribes residing in specified areas, the law operates unequally and the inequality in question cannot be justified on the. basis of any valid classification. There can be no distinction between the income earned by government servant and that earned by a person serving in a company or under a private individual. More or less similar is the case in respect of the income earned by persons practising one or more of the professions. Admittedly the income earned by the members of the scheduled tribes residing in Khasi Jaintia Hills. excepting in the case of government servants is exempt from income tax be it as salaried officers, lawyers, doctors or persons other walks of life. Is there any legal basis for this differentiation ? Prima facie it appears that the government servants have been discriminated against and the discrimination in question is writ large on the face of the provisions in question. The learned Solicitor General contended that the classification in question can be justified on administrative grounds. He urged that a classification based on administrative convenience is a just classification in the matter of levying taxes. According to him it is easy to collect taxes from government servants. Therefore, it was permissible for the legislature to deny them the exemption extended to the other members of their tribes. This contention appears to be without merit. It may be that for the purpose of taxation a classification can be made on the basis of administrative convenience. But we fail to see how the case of the government servants stands on a footing different from that of the employees in statutory corporations or even well recognised firms. That apart, administrative convenience which can afford just basis for classification must be a real and substantial one. We see no such administrative convenience. The learned Solicitor General, next contended that 'the classification can be justified on the basis of past legislative practice and history. In this connection he invited our attention to the fact that before this country got independence, the income of the persons in the service of the government 'but serving outside British India such as in Baluchistan, or native States was subject to tax under the Indian Income Tax laws though other persons residing in those places were not subject to the income tax laws in force in British India. The L10 Sup C1/67 12 170 reason for the same is that the Indian legislature had No. legislative competence to tax the residents of those areas, but it had competence to tax the income of the persons in government service though they might be serving outside British India. The learned Solicitor General next invited our attention to a notification issued by the Government of India as long back as 6 6 1890, under which the income earned by members of certain scheduled tribes other than those serving under the government was exempted from income tax. He also invited our attention to Finance department Notification No. 788F dated 21 3 1922 under which the income of indigenous hill men other than persons in the service of government, residing in certain areas were exempt from tax. On the basis of those notifications, he wanted us to spell out a well recognised legislative practice and history under which the government servants as a class were excluded from the benefit of income tax exemption extended to other persons similarly situated. In this connection, he placed reliance on the decision of this Court in Narottam Kishore Dev Varma and Ors. vs Union of India and another(1). Therein this Court was called upon to consider the validity of section 87B of the Code of Civil Procedure which prescribed that a Ruler of a former Indian State cannot be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to the Government. The validity of that provision was challenged on the basis of article 14. This Court upheld the. validity of that provision having regard to the legislative and historical background of that provision, but at the same time observed that considered in the light of basic principles of equality before law, it would be odd to allow the section to continue prospectively for all time to come. After setting out the legislative background of that provision, this Court observed: "The legislative background to which we have referred cannot be divorced from the historical background which is to be found for instance, in article 362. This Article provides that in the exercise of the power of Parliament or of any legislature of any State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of a Ruler of an Indian State. This has reference to the covenants and agreements which had been entered into between the Central Government and the Indian Princes before all the Indian States were politi (1) ; 171 cally completely assimilated with the rest of India. The privilege conferred on the Rulers of former Indian States has its origin in these agreements and covenants. One of the privileges is that of extra territoriality and exemption from civil jurisdiction except with the sanction of the Central Government. It was thought that the privilege which was claimed by foreign Rulers and Rulers of Indian States prior to the independence of the country should be continued even after independence was attained and the States had become part of India, and that is how in 1951, the Civil Procedure Code was amended and present sections 86, 87, 87A and 87B came to be enacted in the present form. " In the background set out above this Court upheld the validity of section 87B of the Code of Civil Procedure. We know of no legislative practice. or history treating the government servants as a separate class for the purpose of income tax. The government servants ' income has all along been treated in the same manner as the income of other salaried officers. We not know under what circumstances the notifications dated 5 6 1890 and 21 3 1922, referred to. earlier, came to be issue& But they are insufficient to prove a well established legislative practice. At the time those notifications were issued the power of the legislature to grant or withhold any exemption from tax was not subject to any constitutional limitation. Hence the validity of the impugned provisions cannot be tested from what our legislatures or governments did or omitted to do before the Constitution came into force. If that should be considered as a true test then article 13(1) would become otiose and most, if not all, of our constitutional guarantees would lose their content. Sri Setalvad learned counsel for the respondent is justified in his comment that classification based on past legislative practice and history does not mean that because in the past the legislature was enacting arbitrary laws it could do so now. It was the contention of the learned Solicitor General that exemption from income tax was given to members of certain scheduled tribes due to their economic and social backwardness; it is not possible to consider a government servant as socially and economically backward and hence the exemption was justly denied to him. According to the Solicitor General, once a tribal becomes a government servant he is lifted out of his social environment and assimilated into the forward sections of the society and therefore he needs No. more any crutch to lean on. This argument appears to us to be wholly irrelevant. The exemption in question was not given to individuals either on the basis of their social status or economic resources. It was given to a class. Hence 172 individuals as individuals do not come into. the picture. We fail to see in what manner the social status and economic resources of a government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner. lawyer, architect, etc. To over paint the picture of a government servant as the embodiment of all power and prestige would sound ironical Today his position in the society to. put it at the highest is no higher than, that of others who in other walks of life have the same income. For the. purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction, having regard to the purpose of the law. It was lastly contended by the learned Solicitor General a contention which was not taken either in the return or before the High Court or in the appeal memo. that it is not possible to strike down only a portion of section 4(3)(xxi) of the Indian Income Tax Act. 1922 and section 10(26) of the Income Tax Act, 1961, namely, the words "provided that such member is not in the service of government" found in section 4(3)(xxi) of the Indian Income Tax Act, 1922 and the words "who. is not in, the1 service of government" in section 10(26) of the Income Tax Act, 1961, as those words are not severable from the rest of the provisions in which they appear. Further; according to him it cannot be definitely predicated that the legislature would have granted the exemption incorporated in those provisions without the exception made in the ' case of government. servants. Therefore if we hold that those provisions as they stand are violative of ' article 14 then we must strike down the aforementioned sections 4(3)(xxi) and 10(26) in their entirety. We are unable to accept the contention that the words mentioned above are not severable, from the rest of the provision in which they appear. They are easily severable. Taking into consideration the reasons which persuaded the legislature to grant the exemption in question we have no doubt that it would have granted that exemption even if it was aware of the fact that it was beyond its competence to exclude the government servants from the exemption in question. For the reasons mentioned above this appeal is dismissed with costs. V.P.S. Appeal dismissed. [/INST]The predecessors in interest of the respondent executed usufrutory mortgage deeds in 1898 in favour of the predecessors in interest of the appellants in respect of certain 'sir ' land. In 1940 one of the mortgagors, R, the husband of respondent, was declared insolvent and his share in the proprietary rights which vested in the Insolvency Court was purchased by the mortgagee. Some disputes arose about the amount and the right of redemption under the mortgage between the mortgagee and the other mortgagor S, the matter was referred to arbitration. In pursuance of the decree in this award, the mortgagee purchased the share of 'S ' including his rights in 'sir '. R died, and when his widow the Respondent was dispossessed from the land in pursuance of the mortgage decree passed in terms of the award, she filed an application to the Revenue Court under section 12 and section 13 of the Central Provinces Tenancy Act for restoration of possession of her occupancy rights in the land, which was allowed. Thereupon the appellants filed the suit claiming possession, which was partly allowed. Both the parties appealed and in appeals the suit was dismissed, which in further appeals, was upheld by the High Court. HELD : The appellants were not entitled to claim possession in this suit. The mere mention of the 'sir ' land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir ' land were subject of the mortgages, so the cultivator rights continued to remain with the mortgagors. The circumstance was further borne out by the fact that even after execution of the usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this land for the purposes of cultivating it was not obtained by the mortgagee. In the circumstances, it was clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895. [273 G. H] Even if the mortgagors become ordinary tenants in 1895, it was clear that by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in section 10 of the Act. So the claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages in 1895, in these circumstances, must fail. [274 D] The appellants ' claim that the rights of S passed to them when they purchased his rights in execution of the decree under the award and that the share of R passed to them when his rights were transferred by the insolvency Court, fails in view of the provisions of section 12 or section 49 of the 271 Act, as they then stood. As a result of these provisions, the rights of the ex proprietory occupancy tenant could not have been transferred in favour of the mortgagees. Section 50, as it was at that time, did permit transfer of certain rights of an ex proprietory occupancy tenant; but, to be valid such transfers required permission of the appropriate revenue authority. In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance of the decree in the award and in pursuance of the insolvency proceedings against R, the transfers purported to. be affected were made with the permission of the appropriate authority. Consequently under section 49 those transfers would be void. [274 H 275 C] Section 12 barred the transfer of cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act. Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings, taken in execution of the decree in civil suit or in the insolvency proceedings. The right continued to vest in the mortgagors and the Respondent, who was entitled as the 'sole survivor to those rights, was rightly restored to possession by the revenue authorities. [275 E G] The challenge, to the decision of the revenue authorities on the ground that its jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the covenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed, was immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act. The application filed by the respondent could, therefore, be treated as an application under section 100 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction. [275 H] </s>

<s>[INST] Summarize the judgement: Criminal Appeal No. 208 of 1966. Appeal by special leave from the judgment and order dated February 22, 1966 of the Patna High Court in Criminal Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962. A. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and Vineet Kumar, for the appellant. B.P. Jha, for the respondent. 695 The Judgment of the Court was 'delivered by Sikri, J. Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges. Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under section 302, i. P.C. Sheo Prasad Sharma was charged under section 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person. The Second Additional Sessions Judge, Bhagalpur, convicted Sheo Prasad Sharma under sections 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment. The appellant, Ram Prasad Sharma was convicted under sections 326/149, 324/ 34, 201 and 148,/.P.C. and sentenced to four years rigorous imprisonment. Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted. Five of the accused persons were acquitted by the learned Second Additional Sessions Judge. Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma. Both the appeals were heard together. The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under section 304, I.P.C., in connection with the shooting and causing the death of Kaleshwar and sentenced him to rigorous imprisonment for seven years. The convictions of seven others were altered from under sections 326/149 to one under sections 304/149 but the sentence of four years rigorous imprisonment was maintained. In other respects the convictions were maintained. The High Court, however, quashed the convictions under section 201, I.P.C. The nine convicted persons filed petition for special leave to appeal. This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us. The prosecution case as accepted by the High Court was, in brief, as follows. On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr (water channel) known as Chaksafia Danr at village Bindi about five miles away from. Police Station Banka, a serious occurrence took place. The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further north to village Bhadrar and other villages. Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated from the water of this Danr and there are detailed entries regard LI4Sup. C.I, 69 15 696 ing the respective rights of the different villages in the Fard Abnashi which was prepared at the time of the last survey. It appears that the villagers of different villages who enjoy the above rights go in in a body every year during the rainy season for 'clearing tins Danr in order mat there may not be any obstruction in the flow of water therein. On the date of occurrence, i.e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkunki went along with spades to clear this Danr in the .usual course and some of them had lathis also with them. The total number of persons were estimated to vary from about 150 to 'about 400. When they reached the brick kiln, which exists in Malmala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons. Sheo Prasad Sharing and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas. It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but this allegation was subsequently given up. Dhanusdhari Mehta was a retired inspector of police; his son Ram Prasad Sharma was a practising lawyer at Bhagalpur at the time of the occurrence in question. On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so. There was some exchange of hot words and brick bats were thrown by both sides. Sheo Prasad Sharma thereafter fired one shot towards the sky but the villagers did not disperse. Then Dhanusdhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers. On this both Ram Prasad Sharma and Sheo Prasad Sharma opened fire with their guns on the villagers. One shot fired by Sheo Prasad Sharma hit one Qudrat Mian and he fell down and died on the spot. One other villager was alleged to have been shot by Ram Prasad Sharma and he died on the spot. A number of villagers sustained gun shot injuries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed. Sobban Mandal, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh, P.W. 12, who had also sustained gun shot injuries. The learned Additional Sessions Judge had rejected the prosecution story that Kaleshwar Yadav was shot and killed during the occurrence. He had come to the conclusion that Kaleshwar Yudav had died prior to the date of occurrence. The High Court has accepted the prosecution version and it is this finding which is 697 being seriously challenged by the learned counsel for Ram Prasad Sharma, appellant. The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested copy of the Chaukidar 's hath chitha (Ext. D) according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence. The learned Additional Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma. According to the entries in this document, Ext. D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother in law) of Asarfi Yadav. " We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defence. The only dates this document bears are the date of attestation (October ' 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962). As rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner. The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged, that the document was bogus. The hearing of the argument thereafter proceeded on July 4, 1962. The Public Prosecutor again filed a petition that this document be not taken in evidence. The learned Additional Sessions Judge disposed of this petition with the following order: "Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment. " It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about 698 its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document. The High Court, following Sanatan Senanati vs Emperor(1) and Brij Mohan Singh vs Priya Brat Narain Sinha(2), held that the document was inadmissible in evidence. We agree with the conclusion arrived at by the High Court. Section 35 of the Evidence Act provides: "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in Brij Mohan Singh vs Priya Brat Narain Sinha,(2), "the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it ' himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high." No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that exhibit D. the hath chitha, was rightly held by the High Court to be inadmissible. The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant, Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone 'wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further, Kaleshwar 's son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a kudal and had gone to Chaksafia Danr alongwith others. They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had. been killed. The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram ' Prasad because he had heard a hulla that Gholtan had been murdered. It seems to us that the High Court came to a correct (1) A.I.R. 1945 Pat. 489. (2) [19651 3 S.C.R. 861 ,864. 699 conclusion and was right in accepting the explanation of P.W. 1. The learned counsel further contends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the .persons who had died and whose bodies had been held to ' have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as ' 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired. In the result the appeal fails and is dismissed. G.C. Appeal dismissed. [/INST]The respondent was assessed to sales tax in the State of Kerala for the year 1962 63 in March, 1964. In December, 1965 the Sales Tax Officer issued notice under R. 33 of the Travancore Cochin General Sales Tax Rules, 1950 in force at that time for reopening the original assessment on the ground that certain turnover had escaped assessment. According to the relevant portion of the said rule the assessing authority "may at any time within three years next succeeding that to which the tax relates determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable on such turnover after issuing a notice to the dealer and after making such enquiry as he considers necessary". The respondent 's objection to the notice having failed it filed a writ petition in the High Court. The learned Single Judge who heard the writ petition felt that it was due to the orders of the court that the Sales tax authorities had been prevented from completing the assessment within the time allowed by Rule 33. While disposing of the writ petition he observed that the Sales Tax Authorities would be at liberty to complete the proceedings initiated by the notice within a further period of 59 days. The respondent preferred an appeal to the division bench which set aside the direction granting 59 days extension for completing the assessment. The Revenue appealed. On behalf of the appellant it was contended that on a true construction of Rule 33 it should be held that the proceedings under that rule: have to commence within three years next succeeding that to which the tax relates and that it is not necessary that the entire proceeding.s relating to the escaped assessment should be completed within that period. On behalf of the respondent it was urged that the word 'determine ' in Rule 33 meant that the final determination of the turnover which had escaped assessment and the assessment of the tax have to be done within three years. Allowing the appeal. HELD: In view of the previous decisions of this Court in which provisions similar to Rule 33, namely, sub clauses (2), (4) and (5) of section 11 of the PUnjab General Sales Tax Act, 1948 came up for consideration, the principle is firmly established that assessment proceedings under the Sales Tax Act must be taken to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment. In these cases the initiation o.f proceedings within the prescribed period was considered sufficient. The fact that the word used in Rule 33 is 'determine ' whereas in sections 11(4) and (5) of the Punjab Act the words 'proceed to assess ' are used, cannot, in the context of sales tax legislation lead to a different result. r862 H 863 C] The words which follow the word 'determine ' in Rule 33 must be accorded their due signification. The words 'assess the tax payable ' cannot be ignored and it is clearly meant that the assessment has to be made within the period prescribed. 'Assessment" is a comprehensive word and can 860 denote the entirety of proceedings which are taken with regard to it. It cannot and does not mean a final order of assessment alone unless there is something in the context of a particular provision which compels such a meaning being attributed to it. Rule 33 must not be so interpreted that it may be defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years. It must be interpreted like the analogous provisions considered in earlier cases. This must particularly be so when there is no provision in the Rule in question analogous to. sub section (3) of section 34 of the Income tax Act, 1922 by which the Income Tax authorities were debarred from completing the assessment beyond the period prescribed. [863 D G] The State of Punjab vs Tara Chand Lajpat Rai, 19 S.T.C. 493 and The State of Punjab vs Murlidhar Mahabir Prashad, 21 S.T.C. 29 applied. Ghanshyam Das vs Regional Assistant Commissioner of Sales Tax, Nagpur, ; , referred to. </s>

<s>[INST] Summarize the judgementminal Appeal No. 554 of 1984. From the Judgment and Order dated 27.9.1984 of the Allahabad High Court in Government Appeal No. 1634 of 1977 M.R. Sharma, Ms. Anjana Sharma and R.D. Upadhayaya for the Appellant. Arvind K. Nigam, Ms. Kamini Jaiswal and A.S. Pundir for the Respondent. The Judgment of the Court was delivered by G.N. RAY, J. This appeal is directed against the Judgment dated September 27, 1984 passed by the Division Bench of the Allahabad High Court setting aside the judgment dated April 30, 1977 passed by the learned Additional Sessions Judge, Second Court, Kanpur (Dehat). By the impugned Judgment, the Division Bench of the Allahabad High Court allowed the appeal preferred by the State of Uttar Pradesh against the judgment of acquittal. in Sessions Trial No. 235 of 1976 and convicted the accused/appellant Mohd. Aslam under Section 302 I.P.C. and sentenced him to imprisonment for life. The prosecution story in short is that there is long standing enmity between Abdul Salem and Abdul Hamid Kham Pradhan on one side and the complainant Abdul Hamid on the other. Such enmity arose out of rival claim in placing 'sawai 'on the Akbara of Tajias at the time of Moharram. Sawai is a kind of flag which is put on Tajias at the time of Moharram. Over such dispute a civil litigation was going on between the said parties and there were also criminal proceedings under Section 107 read with Section 117 of the Code of Criminal Procedure between the said parties. Shamim Raza was nephew and son in law of Abdul Hamid, the complainant and the said Shamim Raza was doing pairvi of the said cases on behalf of Abdul Hamid. For the aforesaid reasons, Abdul Salem and Abdul Hamid Khan Pradhan, became inimical towards Shamim Raza and Abdul Hamid. Mohd. Aslam, the accused/appellant is the son of Abdul Salem. Both the parties were residents of village Bara, 448 within Police Station Akbarpur in the District of Kanpur. On December 25, 1975 at about 6.00 P.M. Shamim Raza was sitting on a wooden bench in front of a hair cutting shop of Iiyas in village Raza. Mohd. Umar and Abdul Khaliq (P.W.1) were also sitting with him and the said three persons were talking. The Gumti of one Mohd. Laiq was at a short distance towards the east of that place. Bhurey (P.W.2), Qamruddin (P.W.3) and Abdul Hamid were standing near the said Gumit and had also been talking. There was light coming from electric bulbs at that place. At that time, the accused/appellant, Mohd. Aslam came there armed with a double barrel gun. He challenged Shamim Raza and threatened to kill anyone who would come forward. Thereafter, he fired two shots. By said shots, Shamim Raza and Mohd. Umar sustained gun shot injuries and both of them fell down. Shamim Raza died on the spot and the condition of Mohd. Umar also became serious. Such occurrence was seen by Mohd. Umar, Abdul Hamid, Bhurey and Qamruddin. Peer Mohammed (P.W.10) took Mohd. Umar to Lala Lajpatrai Hospital at Kanpur for treatment and at 7.50 PM. R.C. Asthana (P.W.8) examined Mohd. Umar. Abdul Hamid went to his house and got a report of the occurrence written by Mohd. Raizwan (P.W.4) and took the said report to Akbarpur Police Station which was about 4 miles away and lodged the F.I.R. at 7.15 P.M. Station Officer incharge of the Akbarpur Police Station, Mr. Jagdamba Prasad Misra, took up the investigation of the case and he interrogated Abdul Hamid at the Police Station and thereafter reached the scene of occurrence at about 7.55 P.M. He found the dead body of Shamim Raza lying at the scene of occurrence and he prepared inquest report and other connected papers. He also interrogated Bhurey, Qamruddin and Abdul Khaliq who were the eye witnesses, He, also prepared the site plan and found blood on the wooden bench and also on the ground and collected portion of the blood stained wooden bench and blood stained bricks. The injured Mohd. Umar was interrogated in the hospital on January, 1976. The post mortem examination on the body of Shamim Raza was performed by Dr. Prakash (P.W.6). Mohd. Umar died in the hospital on January 4, 1976 and his post mortem examination was performed by Dr. B.D. Misra at Kanpur on January 5,1976. The accused/appellant Mohd. Aslam denied the prosecution allegations against him and alleged that he was falsely implicated on account of enmity and party faction. He also denied that he had been absconding from the village and he examined two witnesses in defence. The learned Additional Sessions Judge did not find the prosecution case and the evidences acceptable. Accordingly, he acquitted the accused/appellant. The State 449 thereafter preferred an appeal before the Allahabad High Court and as aforesaid, the Allahabad High Court allowed the said appeal, set aside the judgment of acquittal passed by the learned Sessions Judge and convicted the accused/appellant under Section 302 I.P.C. and sentenced him to suffer rigorous imprisonment for life. Learned counsel appearing for the accused/appellant has strenuously contended that the High Court did not appreciate the salutory principles governing the judgment of acquittal. He has contended that the learned Sessions Judge had taken pains in analysing in detail the evidences adduced in the case and gave reasonings for each of the findings as to why the prosecution case could not be accepted and what were the intrinsic deficiency in the evidences adduced in the case in support of the prosecution. The learned counsel has contended that the law is well settled that in a case of acquittal, the appellate Court should not interfere with the judgment of acquittal if such judgment is based on consideration of the evidences adduced in the case and there is no perversity in coming to the finding for passing the judgment of acquittal. In such a case of acquittal, the High Court in exercise of its appellate power should not endeavour to appreciate the evidence on its own in order to come to different finding unlike in an appeal arising from the judgment of conviction. The learned counsel has contended that it has been established convincingly that there was party faction between the two groups over a dispute to place Sawai on Tajias and both civil and criminal proceedings were instituted between the two groups. The learned counsel has contended that Abdul Hamid, the father in law of the deceased, Shamim Raza, was the principal man with whom Abdul Salem and Abdul Hamid Khan Pradhan had disputes and differences. There was no earthly reason to bear malice and grudge against Shamim Raza who was only a son in law of Abdul Hamid Khan Pradhan. Accordingly, there was no reason to kill him particularly in the presence of eye witnesses as alleged. Such fact was taken note of by the learned Sessions Judge in analysing the acceptability of the prosecution case and credibility of the witnesses examined in support of the prosecution case. The learned counsel for the appellant has also submitted that there was no reason for injuring Mohd. Umar by the accused/appellant. He has contended that the alleged incident of gun shot injuries had not happened in the manner alleged by the prosecution but after such incident, the complainant and the other alleged eve witnesses falsely implicated the ac 450 cused/appellant because of the old enmity between the two groups. The learned counsel has contended that in a very short time, a written complaint was lodged in the Akbarpur Police Station which is admittedly four miles away from the place of occurrence. The prosecution story is that after the incident the said written complaint was reduced in writing by a person other than the complainant and thereafter the complainant went to the Police Station to file the written complaint. If the incident had taken place at about 6.00 P.M. as alleged by the prosecution, it is practically impossible to lodge the said written F.I.R. at Akbarpur Police Station by 7.15 P.M., particularly when Abdul Hamid, the complainant did not straightaway go to the Akbarpur Police Station but he had been to his house and got a report of the occurrence written by Mohd. Raizwan (P.W.4) and then lodged the F.I.R. at the Akbarpur Police Station. The learned Sessions Judge had taken note of this very important fact in not accepting the prosecution case. Unfortunately, the High Court failed to appreciate the strong reasonings given by the learned Sessions Judge in not accepting the prosecution case. The learned counsel has also submitted that there is serious discrepancy so far as the injury of Mohd. Umar is concerned. Admittedly, Mohd. Umar got injured by a gun shot at the back but the manner in which the injured was sitting and the direction from which the gun was fired by the appellant, could not have caused gun shot injuries at the back of Mohd. Umar. The learned Sessions Judge having noted such discrepancies had rightly rejected the prosecution case implicating the accused/appellant. He has also submitted that the doctor had noted that Mohd. Umar sustained gun shot injuries from a bullet but the injuries sustained by the other deceased, namely, Shamim Raza was a gun shot injury from pellets. It was nobody 's case that different guns had been used by the accused/appellant for injuring the said two persons differently. Because of such discrepancy, the learned Sessions Judge was not inclined to accept the prosecution case and the suggestion.given by the prosecution witnesses that Mohd. Umar might have turned his back in a reflex and received the gun shot injuries at the back was not accepted by the learned Sessions Judge. The learned counsel for the appellant has also contended that the alleged eye witness were in the faction of the complainant Abdul Hamid and they were partisan witnesses. Accordingly, their testimonies were required to be considered with extreme care and caution. The learned Sessions Judge, therefore, after noting the various discrepancies in the prosecution case, was not inclined to place reliance on the evidences adduced by the alleged eye witnesses and acquitted the accused/appellant. 451 Such order of acquittal, in the facts of the case and the reasons indicated by the learned Sessions Judge, was not required to be interfered with in appeal by the High Court. We are, however, unable to accept the submissions made by the learned counsel for the appellant. In an appeal arising from an order of acquittal, the appellate Court is not precluded from appreciating the evidences on its own if the reasons given by the learned trial Judge in passing the order of acquittal, do not stand scrutiny and are against the weight of the evidences adduced in the trial. The appellate Court, will be quite justified in setting aside the order of acquittal if it appears to the court of appeal that improper consideration of the materials and evidences on record was made and the reasonings of the trial Judge are wholly unjustified. It is only necessary that the court of appeal should weigh the reasonings of the learned trial Judge with care and caution in the light of the evidences adduced in the case by giving cogent reasons as to why such findings are unreasonable and against the evidence. In the instant case, the High Court has taken care in analysing each and every finding of the learned Sessions Judge in the light of the evidences adduced in the case and has given cogent reasons as to why such findings were unreasonable and not acceptable. It is an admitted position that the two persons suffered gun shot injuries on December 25, 1975 in the evening and one of the injured persons died on the spot and the other was removed to hospital. He got serious injuries and later on sccummbed to such injuries. The mere fact that there was enmity and bitterness between the two groups, by itself, does not establish that the eye witnesses falsely implicated the accused/appellant. Shamim Raza was the son in law of Abdul Hamid and it was established in evidence that he was looking after the cases between the parties and making 'pairvi 'in civil and criminal cases. In our view, the High Court is justified in holding that because of such positive role taken by Shamim Raza, he had incurred displeasure of the other group which acted as a motive for the gun shot injuries. The learned Sessions Judge doubted the prosecution case because of lodging the F.I.R. at 7.15 p.m. at Akbarpur Police Station which was about four miles away from the place of occurrence where the incident, according to the prosecution, had taken place at about 6.00 P.M. We do not think that such F.I.R. could not have been lodged by that time. The High Court has considered the reasonings of the learned Sessions Judge on the question of lodging the F.I.R. at Akbarpur Police Station within a short time and has, in our view, given very good 452 reasons in not accepting the views entertained by, the learned Sessions Judge. In our view, the learned Sessions Judge was also not justified in holding that the gun shot injuries suffered by Mohd. Umar had not been property explained by the prosecution because the doctor had noted that such injuries were caused by bullet and not by pellets. The injuries suffered by Mohd. Umar as noted by the doctor do not run counter to the prosecution case that such injuries were caused by the gun used by the accused/ap pellant. The High Court is right, in our view, in holding that the size of the pellet depends on the type of cartridge used in a gun. It cannot be held as a matter of course that simply because the pellets injuring the deceased Shamim Raza were smaller in size than the size of the pellets used in injuring Mohd. Umar, both the injuries could not have been inflicted by the same gun. The High Court, in our view, is also justified in not accepting the reasonings of the learned Sessions Judge that the injuries caused at the back of Mohd. Umar were not possible and run counter to the evidences adduced by the prosecution. There was interval though very short between the two shots and it is not at all unlikely or highly improbable that because of the inherent reflex, the other injured, Mohd. Umar, had turned his side and received the injuries at the back portion. In the instant case, there are eye witnesses to the occurrence and there are no intrinsic discrepancies in their evidences. Even if it is assumed that such eye witnesses belong to the group of the complainant, their evidences are not liable to be discarded on that score if such evidences otherwise inspire confidence and get corroborated by other evidences and from the nature of injuries, sustained by the deceased persons. The High Court is right in holding that although Abdul Khaliq (P.W.1) belonged to a group and appeared to be a partisan witness, his evidence was not required to be discarded on that ground but was required to be closely scrutinised. The High Court, in our view, is also justified in holding that Qamruddin (P.W.3) was not related to Shamim Raza, deceased or the complainant and he did not belong to any of the rival groups. This witness had no enmity with the accused/appellant or his father. Qamruddin (P.W.3) has been rightly held by the High Court, as an independent and reliable witness. It appears to us that all the findings made by the learned Sessions Judge were considered in detail by the High Court and the findings of the learned Sessions Judge were not accepted by the High Court by indicating that such findings were against the weight of the evidences and the same were wholly unreasonable. In the aforesaid circumstances, we do not find 453 any reason to take a contrary view in this appeal and set aside the order of conviction made by the High Court. The appeal therefore fails and is dismissed. By the Order dated April 8, 1986, this Court granted bail to the accused/appellant. In view of the dismissal of this appeal the bail stands cancelled and the accused/appellant is directed to surrender and serve out the sentence. V.P.R. Appeal dismissed. [/INST]The appellant along with others was tried for offences under Section 302 read with Sections 148, 149 and 323 of the Indian Penal Code. The case of the prosecution was that on 16.9.80 Mammed Kutty at 6.00 a.m. in the morning pelted stones at the house of the deceased. At about 12.00 noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident which was denied. At about 2.00 p.m. when the deceased was sitting with his wife (PW 4) and others on the varandah of his house, 5 persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat Mammed Kutty and Abdulla. The deceased stepped out into his courtyard and asked the accused persons not to create a scene, when the appellant and the other accused gave some blows to the deceased on his hand. Thereafter the deceased raised his hand to give a blow to the appellant, when the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit. The deceased ran towards the house of PW1 and fell on the varandah. Therefore, the accused persons escaped. The victim was removed to the Medical Hospital where he was examined by PW 9, but soon thereafter expired. The F.I.R. was lodged at 7.15 p.m. and after investigation the chargesheet was submitted against the five accused persons. At the trial the prosecution examined 4 eye witnesses, PW1 to PW4, and PW8 the doctor who held the post mortem examination. 693 The trial court on consideration of the materials on record came to the conclusion that the charges leveled against the accused persons had not been established beyond all reasonable doubt, and on that finding acquitted all the accused including the appellant. Great importance was attached to the injury found on the person of Abdulla and adverse inference was drawn against the prosecution case. On appeal by the State, the High Court convicted the appellant under Section 302 and sentenced him to undergo rigorous imprisonment for life. Another accused (Alavi) was convicted under Section 323 of the Penal Code and sentenced to payment of fine of Rs. 250. The acquittal of the remaining 3 accused persons by the Trial Court was affirmed. The High Court held that mere non disclosure of the superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, do not in any manner affect the persecution case. In the appeal to this court it was contended on behalf of the appellants that the statements made in the First Information Report, the evidence of the eye witnesses in connection with the morning incident of pelting of stones, show that it was a concoction and that none had pelted any stone on the house of the deceased, and that if this part of the prosecution case is disbelieved then it has a bearing on the main occurrence itself. It was further submitted, that the prosecution had suppressed the real manner of occurrence in as much as Abdulla was first assaulted by the prosecution party on the same day at about 130 p.m. and that he was hospitalised after receiving the injuries, reliance being placed on the evidence of DW1 who had stated that he had examined the injuries on the person of Abdulla on 16.9.80 at 430 p.m. Allowing the appeal in part, this Court, HELD:1. It is well settled that if the evidence of the eye witnesses is held to be reliable and inspires confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution. [696 H] In the instant case, so far as the four eye witness are concerned they have been named in the FIR. The FIR was lodged at 7.15 p.m., the same evening, within two hours of the death of the victim. The FIR mentions the 694 details of the occurrence, and the version disclosed therein had been supported by the eye witness before the Court. No reason has been shown as to why the evidence of these P.Ws should not be accepted. [697 C] 2.The prosecution has admitted that the accused persons were not carrying any weapon in their hands and during the protest made, a sudden quarrel and fight took place between the prosecution party and the accused persons. This part of the version had been admitted at the trial by the eye witnesses in their evidence, who also stated that first the appellant and the other co accused gave blows on the hand of the deceased and that the knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant. [697 F] In view of the admitted position that a sudden right and quarrel preceded the giving of the knife blow by the appellant to the victim which in all probability was given not while the victim and the appellant were standing face to face but during struggle between them, causing tailing of the injury, it shall not be just and proper to hold that the appellant had an intention to cause the death of the victim, but only knowledge that injury which he was causing was likely to cause death. In such a circumstance it is not possible to uphold the conviction of appellant under Section 302 of the Indian Penal Code. It is therefore set aside, and the appellant convicted under Section 304 Part 11 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years. [697 H,698 A C] </s>

<s>[INST] Summarize the judgementNo. 5222 of 1985. (Under Article 32 of the Constitution of India) (With Writ Petition Nos. 443 and 754 of 1988) R.K. Garg, S.K. Verma, P. Anshu Mishra and R.S. Singh for the Petitioners in Writ Petition No. 5222 of 1985. G.B. Pai and S.K. Sinha for the Petitioners in Writ Petition No.754 of 1988. K. Parasaran, Attorney General, G. Ramaswamy, Additional Solicitor General, Ms. A. Subhashini, Probir Mitra and K. Swamy for the Respondents. The following Order of the Court was delivered: Workmen of Rohtas Industries Limited situated at Dalmi anagar in District Rohtas within the State of Bihar sent a letter addressed to Hon 'ble the Chief Justice of this Court on 8th of July, 1985, alleging that the Company had four units, namely, paper and boards, cement, asbestos and vege table ghee plant; the management closed down the industries with effect from 9th of September, 1984, and have denied employment to about 10,000 employees. It was prayed that there should be immediate restoration of electricity to the colony, payment 618 of salary and wages for the period since closure should be directed and compensation as per the amendment to the Indus trial Disputes Act in 1984 and dues under the provident fund account, gratuity etc. should also be directed to be paid. This letter was registered as a writ petition and notice was issued. In the meantime by order dated 22.5. 1986, the Patna High Court appointed a Provisional Liquidator under the Companies Act. In the writ proceedings before this Court the employers, the Provisional Liquidator, the State of Bihar and the Union of India have, in due course, appeared. On 27.4.1987, the Court made an interim order in the matter of payment of arrear wages by sale of assets. On 22.7.1987, the Court took note of the fact that the proposal for restructuring of the Company was afoot in terms of its suggestion and stated that claims of the financial institu tions would be considered later. On October 28, 1987, the Court stated: "This Court had issued notice to the Union of India and learned Attorney General to ascer tain if it is possible to revive the company which has suddenly gone sick. Learned Attorney General states that in the meantime which received assent of the President on 8th January, 1986 has come into force and a Board in terms of section 4 thereof has now been constituted. He suggests that a reference may be made to that Board and the Board may be called upon to frame the Scheme as contemplat ed under section 18 of the Act for revival of the company and instead of allowing the Scheme to be dealt with further under the Act, the Board may be called upon to submit its Report along with the Scheme for consideration of this Court. He also submits that in the spe cial facts of the case there is no necessity to subject the Scheme to a statutory appeal. Counsel for the petitioners agrees that an effort may be made as per the suggestion of the learned Attorney General. " The Central Government made a reference to the Board within one week as directed by the Court and the Board was given four months ' time to frame the Scheme. On 7.9.1988, this Court took note of the fact that the State of Bihar was inclined for nationalisation of the Company. The Union of India filed an affidavit that if any proposal is mooted for nationalisation, it would be supported. This Court stated in this order of 7.9.1988: 619 "On examining the matter in this background we are of the view that it is in the interest of everyone that the industrial establishment should be revived and sooner it is the better. In these circumstances, we direct that a Committee with the Industries Secretary of the Union of India as its Chairman be immediately constituted to work out the modalities of nationalisation. The Committee should consist of the Secretary, Industries, Government of Bihar, senior representatives of the creditor financial institutions, Finance Secretary of Government of India or his representative and representative of Reserve Bank of India. The Committee should examine the matter and submit its report within six weeks . . . " On 9.8.1989, the Court took note of the report by saying: "The report submitted to this Court indicates that three units excepting paper unit are viable and can be revived. On the 13th of December, 1988, this Court considered the report and adjourned the matter to give an opportunity to the parties to explore the modalities of revival of the three viable units. No substantial progress has been made as we find. By the adjourned date the modali ties should be discussed and finalised and reported to the Court so that an order can be made to revive the three units. The report indicated that in regard to paper unit, the Committee was not of the opinion that it was viable. Learned Attorney General and Mr. Pal had been requested by the Court to explore the possibilities of revival of the paper unit. Ms. Subhashini on behalf of the learned Attorney General states that given two weeks ' time further discussions shall be held and a complete decision may be reached as regards the paper unit . . " A joint memorandum was filed by the Union of India and the State of Bihar on 12.9.1989 which the Court rejected on account of the fact that there was no clear and definite indication in the memorandum as to revival. Thereafter, the State of Bihar and the Union of India have filed their statements separately and a copy of the memorandum prepared by the learned Attorney General and circulated has also been filed before us. We have also heard learned counsel for the parties in the matter. 620 It is not disputed that there is a huge amount of wages outstanding to the workmen. Several financial institutions have large dues to recover from the Company. The Trustees of the Debenture Trust Deeds have also sought to intervene in this Court to maintain their claim. Apart from these, the owners of the Company have also pleaded that they are enti tled to compensation in the event of the properties of the Company being taken away by way of nationalisation. As already noted, the Company has been closed down for more than five years now. A lot of assets are fast becoming useless and will soon become junk. Several attempts were made to dispose of some of the stocks held by the Official Liquidator but for one reason or the other it has not been possible to complete the sale and though this Court had directed that the sale proceeds would be utilised for pay ment of arrears wages, that has not been feasible. Claims have been laid against the Company and are perhaps awaiting adjudication. If the Company is not revived and gets liqui dated, the liabilities would turn out to be far in excess of the assets and notwithstanding first or second charge on the assets, the creditors may not appreciably benefit. This Court cannot lose sight of the fact that living to about 10,000 families had been denied for over five years and apart from national loss, the workmen have been put to serious jeopardy. In these circumstances, we are satisfied that it is of paramount importance that the Company in respect of the viable units should be revived and allowed to come into production. Unless there be a moratorium in regard to the liabilities of the Company for a reasonable time, the attempt to revive the Company in respect of the three units is bound to be frustrated upon the intervention of the creditors, whereas once the company is revived and big commercial activities are carried on, profit is bound to be earned and a conscientious and prudent administration would certainly, in due course, provide adequate funds for satis faction of the debts. At present the question is one of priorities. It has to be prudently decided as to which ones should be allowed to go ahead and which should be made to wait. In this background and on the basis of the memoranda filed by the State of Bihar and the Union of India and the note prepared by learned Attorney General and made available to us by Mr. Pal for the other side with the Attorney Gener al 's consent, we give the following directions: 1. The State of Bihar shall appoint an authorised officer from the Senior IAS cadre with appropriate commercial back ground 621 to be the Rehabilitation Administrator. The Provisional Liquidator appointed by the High Court of Patna shall hand over to the Administrator all the assets of the Company which he has taken over under orders of the Court. Such assets of the Company which have not yet been taken over by the Provisional Liquidator shall upon the appropriate officer being designated vest in him forthwith and he is clothed with the necessary power under our present orders to take such steps as are necessary to take over possession of such assets of the Company. In the event of a dispute arising out of the decision of the Administrator that the asset is of the company and is to be taken over by the Administrator, an appeal shall be maintainable before a Division Bench of the Patna High Court and the Judges to constitute such Bench shall be nominated by the learned Chief Justice. For convenience the same Judges shall contin ue on the nominated Bench for a reasonable period. The assets of the Company encumbered with financial and other institutions shall not be available to be proceeded against for a period of one year from today and there shall be a moratorium for a period of one year in regard to pro ceedings taken and pending or to be taken against the Compa ny hereafter and limitation shall remain suspended for the period under our orders of today. It would be open to the Court on being moved to extend the moratorium. The costs of the entire assets to be taken over by the State Government of Bihar as per the book value and the dues against the company are estimated to be within the limit of Rs. 15 crores. The State Government of Bihar has undertaken before us to deposit the amount of Rs. 15 crores with the Administrator within eight weeks from today. A similar amount of Rs. 15 crores shall be advanced by the Union of India to the State of Bihar from out of plan assistance for the State. The sum of Rs. 15 crores paid by the State Gov ernment shall be utilised, in due course, for payment of arrears of wages to the workers and for disbursement of secured loans of financial institutions and other parties for which security of the Company 's assets had been fur nished. The Administrator shall open an account with the lead nationalised Bank for the State of Bihar operating at Dalmianagar into which the two sums of money being Rs. 15 crores each shall be credited. 622 5. The Administrator shall set up one Committee with a retired High Court Judge, a retired District Judge and an Accounts Officer with at least five years ' experience as Financial Advisor to the State Government to examine the claims of the owners of the Company and other parties in cluding financial institutions. This should be done within six months from now. Once the list of creditors is settled with all reasonable particulars, the matter should be re ported to this Court for directions and it shall be open to this Court to finally indicate the figure at which each such claim shall be settled. An inventory of all the articles shall be made within four weeks from now. Steps shall be taken to form a new company within four weeks from now. Appointment of technical consultants and other competent officers shall be undertaken within two months hence. The asbestos, cement and vanaspati plants shall be commissioned after effecting such repairs as may be neces sary. The retrenched employees shall come back to work in phases. The first phase shall admit a thousand workers, the second phase shall admit an equal number and in the third phase, such number of further workers as may be necessary to run the industries in a viable way shall be finalised. All expeditious steps as may be possible shall be taken to provide employment. Steps shall be taken to explore the viability of the paper unit within three months after the Company is re commissioned in respect of the three units. Liberty is given to the parties to apply in the event of necessity but it is made clear that no extension in regard to payment of the fifteen crores of rupees by the State Government and the Union Government shall be granted. Every attempt should be made by all concerned to give effect to the order keeping its true purport and spirit in view. We do not intend to leave doubts in any one 's mind that the purpose of our order is to revive the Company and make it work viably. Everyone charged with the responsibility of implementing the order of the Court shall, therefore, be expected to work in such a way as would fulfil that purpose. We direct that the case shall remain pending in this Court and shall not be taken to have been disposed of by this order. Call the case on 1st of March, 1990. [/INST]The respondent company obtained sanction of a building plan from the New Delhi Municipal Committee for the con struction of a building on a plot held by it on lease. After incorporating certain changes, the respondent company sub mitted a revised plan for sanction of the New Delhi Munici pal Committee, but the same was rejected by an order Dated 18.12.1987. A rectified plan was thereafter submitted by the re spondent to the New Delhi Municipal Committee, for necessary sanction, but as no orders were received, the respondent filed a writ petition in High Court seeking a direction to the New Delhi Municipal Committee to deal with the same for grant of necessary sanction. During the pendency of the aforesaid writ proceedings the Delhi Urban Art Commission approved the plans as re quired under Section 12 of the Delhi Urban Art Commission Act, 1973. The Chief Fire Officer also gave clearance to the building plans in relation to the Fire Safety Precautions. The High Court allowed the Writ Petition by an Order dated 28.4.1989 holding that inspite of the clearance grant ed by the Urban Art Commission and the Chief Fire Officer, New Delhi Municipal Committee 's disinclination to accord the sanction was unjustified, and directed the New Delhi Munici pal Committee to convey the formal sanction in respect of the building plans. In appeal to this Court, it was contended on behalf of the New Delhi Municipal Committee, that (i) in the matter of fire safety requirements, the building plans were not in accordance with Building Bye Laws for the Union Territory of Delhi, 1983; (ii) The clearance given by the Chief Fire Officer is not binding on the New Delhi Municipal Committee which can examine the question independently of such clear ance and (iii) the proposed building plan does not provide for a 'Podium"/"Pedestrian Walk way" as required under the approved Zonal Development Plan under Sec. 9(2) of the Delhi Development Act, 1957. Setting aside the High Court Order dated April 28, 1989, this Court, HELD: 1. The requirements of Bye Laws 16.4.8 arc not inflexible and in appropriate cases where the plans and designs incorporate fire safety measures which, in judgment of the Corporation are 593 considered to provide for the safety in a measure better than those envisaged by the bye laws 16.4.8 the Corporation would not be precluded from accepting them i.e. if a build ing design incorporate fire safety measures in a measure promoting fire safety precautions far better than those suggested by the Bye laws they should not fetter the hands of the licencing authority to accept them. [609H; 610A, 609C] 1.1 Whether the plans submitted by Respondent distribut ing Refuge Area in each floor provide such a better and more reliable fire safety measures is a matter for the decision of the Corporation. [610A] 1.2 It is, of course, wise in the interests of uniformi ty of administration of these Bye laws and of elimination of possible complaints of ' partisanship, that the Corporation should insist upon adherence to the requirements of the Bye law 16.4.8 on its own strict terms. That should not, however, denude the power of the Corporation to accept designs which, in its judgment offer and incorporate fire safety precautions of higher measure. [608H: 609A] 1.3 When fast and sweeping changes are overtaking the fundamental ideas of building design and construction and new concepts of building material emerging, it would be unrealistic to impute rigidity to provisions essentially intended to promote safety in building designs. [609A] 2. The clearance from the Chief Fire Officer envisaged by Bye law 17.1 is an additional condition and not a limita tion on the power of the Corporation to satisfy itself that the building plans provide for adequate fire safety precau tion in accordance with its bye laws or in a better measure. The clearance by the Chief Fire Officer, which is expected to involve and follow a technical assessment and evaluation, obliges the Corporation to give due weight to it but, having regard to the scheme and language of the bye laws the deci sion of the Chief Fire Officer is not binding on the Corpo ration. [609E] 2.1 The clearance of the plans by the Chief Fire Offi cer would not render it obligatory on the part of the Corpo ration ipso facto to treat the plans as necessarily comply ing with the requirements of relevant bye laws. While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, such clear ance, by itself, is not conclusive of the matter nor binding on the Corporation which is entitled to examine the question independently of such clearance from the Chief Fire Officer. [609G; 610B] 594 3. Bye law 16.4.8.1 requires that Refuge Areas shall be provided on the "external Walls" by means of cantilever projections or "in any other manner". The words "in any other manner" in Bye law 16.4.8.1 are not intended to envis age a totally different idea of the location of Refuge Areas, but, prima facie, intended to suggest some feasible alternative to the technical design of the construction of the Refuge Area whether it should be a cantilever projec tion or designed in some other way. The purpose of Refuge Areas include that in the event of an out break of fire in the building, persons exposed to the hazard should be able to have immediate access to a place of safety which by its access to fresh air insulates them from heat and smoke and further that those persons could conveniently be extricated and rescued to safety by rescue operations. Therefore, "Refuge Areas" must be located on walls which open into vacant space from which rescue operations are possible. [610C, 611B, 610D G] 3.1 The word "external wall" in bye law 16.4.8.1 which is a provision intended to promote public safety, health and well being must receive a purposive construction which promotes those objects and purposes. Having regard to the very purpose of providing for Refuge Areas the expression "external wall" must be held to be one which abuts a vacant space to which fighting and rescue equipment can have access and from which rescue operations are feasible. [610D; 610F] 3.2 In the instant case, the Refuge Areas are provided on the wails that open into an inner vacant space. Refuge Area located on a wail though abutting an inner vacant space would not, by itself, promote the object if the vacant space is such that no rescue operations are possible to be con ducted therefrom. If the fire fighting and rescue equipment cannot have access to such inner vacant space, then, in the context of the specific objectives of bye law 16.4.8.1 the wail abutting such inner vacant space would not be an "external wall" for the purpose of the said bye law. The Corporation should decide this question and examine whether such rescue operations are feasible from the inner circular vacant space. This is an exercise individual to each case and to be judged on case to case basis. [610C; E, H; 611A] 4. Though the Zonal Development Plans envisaged a raised pedestrian walk way on either side of Barakhamba Road and the provision for podia connecting the building with the walk way were accepted and an appropriate notification issued way back in 1966, no steps appear to have been taken to give effect to them in a uniform manner. In fact several authorities including a Committee constituted by the Lt. Gover 595 nor of Delhi in 1983, and the Chief Fire Officer, have advised against the implementation of the proposal. In such circumstances insistence to have such a pedestrian walk way for the building, if such walk ways do not already obtain in other buildings on the Road, requires reconsideration. Moreover, the insistence for provision of such a walk way in an individual case without the integration and continuation of the walk way along the whole of the road, would indeed, be purposeless. [611G H; 612A B] [Respondent to effect such rectifications to 'the plans in regard to the Refuge Area as may be necessary, the New Delhi Municipal Committee to consider and decide the ques tion of according sanction to the plans without insisting upon any fresh clearance from Delhi Urban Arts Commission or the Chief Fire Officer. Appeal to be kept pending and be taken for final disposal after the submission of the report from New Delhi Municipal Committee] </s>

<s>[INST] Summarize the judgementtition Nos. 896/81, 865 890, 577 591, 592 606, 607 621, 622 628, 629 633, 634 37, 964 88, 544, 545 575, 766 774, 775 776, 902 63, 897 901, 535 37, 532 34, 529 531, 639 and 540 43/81. (Under Article 32 of the Constitution) H.K. Puri for the Petitioners in WP 896/81. Vimal Dave for the Petitioners in WP 865 890/81. A.K. Sen, R.M. Dube and Sarva Mitter for the Petitioners in WPs 540 43/81. 30 Soli J. Sorabjee, S.S. Ray, A.K. Sen and R.K. Jain for the Petitioners in WPs 529 37, 544 575, 577 538, 766 776 and 897 988/81. S.S. Ray, Soli J. Sorabjeee and R.K. Jain for the Petitioners in WPs 634 37/81. Lal Narain Sinha, Attorney General, O.P. Rana, and Mrs. section Dikshit for the Respondent (State of U.P.) in WPs 540 43, 529 37, 540 43, 544 77 and 577 638/81. M K. Banerjee Addl. and S.K. Gambhir for the State of Madhya Pradesh. Miss A. Subhashini for Union of India. The Order of the Court was delivered by FAZAL ALI, J. Having heard counsel for the parties at great length we are satisfied that there is no violation of the fundamental right of the petitioners enshrined in article 19(1)(g) of the Constitution of India nor is article 14 attracted to the facts of the present case. There is, therefore, no good ground to entertain the petitions. We would, however, like to add that on the materials placed before us the Government may consider the desirability of adopting such measures as may soften the rigours of the impugned orders which, though not arbitrary or excessive so as to violate article 14 or 19, do merit some consideration by the Government in order to effectuate the policy under which the impugned notification was made. There are, however, two arguments urged before us which need special mention. In the first place it was submitted that in the U.P. cases the order impugned imposing a levy on the khandsari produced by the petitioners cannot have any retrospective operation so as to apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar produced after the coming into force of the impugned notification. So far as this argument is concerned we find no substance in the same because it is not a question of retrospectivity of the statute but its actual working. Once the notification imposing the levy was made it will obviously apply to stock of khandsari produced by the petitioners either before or after the order. This principle has been clearly laid down by the Constitution Bench of this Court in the case of Trimbak Damodar Raipurkar vs Assaram Hiraman Patil and Ors.(1) where Gajendragadkar, J. speaking for the Court regarding the 31 scope of a Rent Act and Amendment in Rent Act observed as follows: "In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. This Court followed the dictum of Buckley, L.J. in the case of West vs Gwynne.(1) In the aforesaid case Buckley, L.J. while construing an amendment in the Act by which the contract was governed observed as follows: "The Act of 1881 thus expressed that in the case of leases made either before or after the commencement of the Act a covenant not to assign without licence should be enforceable just as before. .This section is to be read as if it were contained in the Act of 1881, and is dealing with a subject matter mentioned in the Act of 1881, and as to which there is in that Act a provision that the enactment shall apply to leases made either before or after commencement of the Act." Hardy, M.R. in a concurring judgment while construing second amendment in section 14 of the Conveyancing Act pointed out thus: "In the First place, the language of the section is perfectly general, "in all leases," and there is nothing in the section itself to confine it to leases subsequent to the Act. Almost every statute affects rights which would have been in existence but for the statute. " In these circumstances, therefore, once the notification for imposing the levy was made it will naturally apply to the stock of sugar which was with the petitioners irrespective of the fact that it was manufactured before or after the Order. It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost. We 32 are, however, unable to agree with this argument. The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers. It is manifest that individual interests, however, precious they may be must yield to the larger interest of the community namely, in the instant case, the large body of the consumers of sugar. In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable. In Shree Meenakshi Mills Ltd. vs U.O.I.(1) this Court observed as follows: "If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable." (Emphasis Supplied) Similar view was taken by this Court in the case of Prag Ice and Oil Mills and Anr. vs Union of India(2) where the Court speaking through Beg, C.J., observed as follows: "It has also to be remembered that the object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time. " In this view of the matter the primary consideration in the fixation of price would be the interest of the consumers rather than that of the producers. Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining fifty per cent of sugar (after excluding the fifty per cent which they have to give for levy) as also the produce by the second and third processes, the loss if any caused to the petitioners would be minimal. Lastly, it was urged that Sub Clause (5) which is Sub Clause (3) in the notification issued by the Madhya Pradesh Government 33 in the impugned notification issued by the U.P. Government is extremely arbitrary inasmuch as by insisting on certificates it deprived the petitioners of the free sale of sugar of the remaining amount of fifty per cent as also the Khandsari produced by second and third processes. We see some force in this argument but the Attorney General frankly conceded that he will see that no inconvenience on this score is caused to the petitioners. He gave an undertaking to the Court that he will get the respective Sub Clauses 5 and 3 of the impugned orders of the U.P. and Madhya Pradesh Governments deleted or withdrawn so as to allow the petitioners to sell the remaining amount of sugar as also the stock produced by the second and third processes without any hitch or hindrance. This will, however, be subject to routine and quick inspection. In view of this undertaking, therefore we feel that a substantial part of the grievances of the petitioners would be removed. To be on the safe side, however we allow the stay granted in all the petitions to continue until the provisions of respective Sub Clauses 3 and 5 passed by the State Governments concerned are withdrawn. We may also emphasise the fact that the amount of sugar taken by the Government through levy should be properly stored and duly protected from rain and rot and be despatched to the various control depots expeditiously in order to ensure a quick and equitable distribution of the commodity amongst the people at moderate rates. The Government may also consider the desirability of giving a bare minimum hearing to the representative of the owners of the cane crushers in future before fixing the rate at which the levy is taken from the owners so as to see that the owners of the crushers are not put to such great loss that they are completely wiped out from business. With these observations the petitions are dismissed. N.K.A. Petitions dismissed. [/INST]The appellant was employed with the respondent as Salesman at its Delhi Sales Depot on a salary of Rs. 520/ per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October, 1974 with effect from 19th October, 1974. Consequent upon his termination, an industrial dispute was raised and referred to the Labour Court, Delhi, on 24th April, 1976. The Labour Court, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation and, therefore, the termination would not constitute retrenchment within the meaning of section 2(oo) read with section 25F of the Industrial Dispute Act. The Labour Court accordingly held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence the appeal by special leave. Allowing the appeal, the Court ^ HELD: 1. The termination of service of the appellant was ab initio void and inoperative. His case not being covered by any of the excepted or excluded categories referred to under section 2(oo) and he has rendered continuous service for one year, the termination of his service would constitute retrenchment. The pre condition for a valid retrenchment has not been satisfied in this case and therefore he will be entitled to all benefits including back wages etc. (534F G, 535 C D) 2. Where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workmen concerned continues to be in service with all consequential benefits. It is no doubt true that the Supreme Court had held that before granting reinstatement the court must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. 519 Here, no case has been made out for departure from the normally accepted approach of the courts in the field of social justice. (535A C) Ruby General Insurance Co. Ltd. vs Chopra (P.P.), (1970) 2 Labour Law Journal, 63 and Hindustan Steel Ltd., Rourkela vs A.K. Roy and Others, ; , referred to. Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever in section 2(oo) of the Industrial Dispute Act, would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued illhealth. (524 E F) 3:2. It was not open to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings when there was not even a whisper of any period of probation in the appointment order or in the rules. The termination of service being, for a reason other than the excepted category, it would indisputably be retrenchment within the meaning of section 2(oo) of the Industrial Dispute Act.(523 G H, 524A, 525Z) Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, ; Hariprasad Shivshankar Shukla v, A. D. Divikar, [1957] S.C.R. 121; State of Bombay and Ors. vs The Hospital Mazdoor Sabha and Ors. ; at 872; State Bank of India vs N. Sundara Money, ; ; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa and Ors., ; ; Santosh Gupta vs State Bank of Patiala, and Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukerjee, ; , explained and followed. Before a workman can complain of retrenchment being not in consonance with section 25F of the Industrial Dispute Act, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. (529 C) 5:1. The language employed in sub sections (1) and (2) of section 25B does not admit of any dichotomy, namely, (a) sub section (1) providing for uninterrupted service and (b) sub section (2) comprehending a case where the workman is in continuous service. Sub sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V A. (530 G H) 5:2. Sub section (1) provides deeming fiction in that where a workman is in service for a certain period for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the 520 part of the workman. Sub section (1) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter V A be deemed to be continuous service. (530H, 531A, C D) 5:3. Sub section (2) incorporates another deeming fiction for an entirely different situation. It is not necessary for the purposes of sub section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub section (1) his case would be governed by sub section (1) and his case need not be covered by sub section (2). Sub section (2) envisages a situation not governed by sub section (1). And sub section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just proceeding the relevant date being date of retrenchment. (531D E. 532A B) Both on principle and on precedent section 25B(2) comprehends the situation where workman is not in employment for a period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date that is the date of retrenchment, if he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter V A. In the instant case, the appellant 's case indisputably falls within section 25 B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter V A. (534B D) Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen, ; explained and distinguished. Surendra Kumar and Ors. vs Central Government Industrial cum Labour Court, New Delhi and Another, ; followed. </s>

<s>[INST] Summarize the judgementAppeal No. 1868 of 1968. Appeal from the Judgment and Decree dated the 21st February 1968 of the Judicial Commissioner 's Court at Goa, Daman and Diu in Appeal No. 3370 of 1964. S.V. Gupte, Naunit Lal and (Miss) Lalita Kohli for the Appellant. V.C. Mahajan and R.N. Sachthey for Respondents. The Judgment of the Court was delivered by BEG, J. The Plaintiff appellant Timblo Irmaos Ltd., (hereinafter referred to as 'the Company ') had sued Jorge Anibal Matos Sequeira and his wife (hereinafter referred to as Sequeiras ') for recovery Rs. 2,82,141/ claimed under a contract of 23rd January, 1954, and a sum of Rs. 1,14,700/ , claimed under another contract of 4th February, 1954. The Sequeiras counter claimed Rs. 3 lakhs as price of 8000 tons of iron ore supplied to the Company; and pleaded that a sum of Rs. 1,13,000/ , advanced by the Company to the Se queiras was to be adjusted after final determination of the amount due as price, of goods sold and supplied. The Sequeiras are holders of a mining concession. They, it was alleged, had entered into the two contracts, one of 23rd January, 1954, through their attorney, Ramesh Jethalal Thakker (hereinafter referred to as Thakker Junior), for supplying 8000 tons of iron ore, altered in some respects, by a later agreement, and the other of 4th February, 1954, alleged to be binding on the Sequeiras although entered into through Jethalal C. Thakker (hereinafter referred to as 'Thakker Senior '), the.father of R.J. Thakker. The most important clause in the contract of 23rd January, 1954, was that iron ore should be loaded in a ship 'Mary K ' at Marmagoa, and that the loading must be done at the rate of 500 tons per 'weather working day" of 24 hours. Under the contract, the rate of demurrage for not loading the ship in time was to be paid at the rate of US $ 800.00 per day an pro rata for each fraction of a day. The buyer company was to pay what was called "despatch money" at half the rate of demurrage for time saved in loading. The payment was to be in the Portuguese Indian rupees at the exchange rate of Rs. 4.76 per US $. The buyers had also to make an initial payment of Rs. 55,000/ as soon, as delivery by load ing began. The buyers were also to establish a Letter of Credit, before 27th January, 1954, in favour of 453 the sellers, the Sequeiras, for the full value of the iron ore after deducting Rs. 55,000/ paid initially, and Rs. 1/4 per gross ton awaiting final settlement by presentation within ten days, at the bank named in the agreement, by presentation of the certificate of weight issued by the Master of the vessel. Certificates of the quality and specifications and of final weighment were to be sent by the buyers after the vessel 's arrival at the port of dis charge. The second agreement of 4th February, 1954, relates to loading of 6000 to 9000 tons of iron ore of given quality and specifications in the ship 'Mary K ' at the minimum rate of 500 tons per day commencing delivery within 24 hours of the buyer notifying the requirements to the seller. It also contained other stipulations similar to those of the first one. The important point to note about this agreement is that it is signed by Jethalal C. Thakker as the attorney of his son Ramesh Jethalal Thakker. It appears that the clause relating to initial payment was changed so that the sellers, Sequeiras, were paid Rs. 1,13,000/ between 25th January, 1954, and 22nd July, 1954. It also appears that there was delay in delivery for which the plaintiff claimed demurrage. There were also complaints about alleged departure by the seller from the specifica tions agreed upon. The Sequeiras, the sellers, had it seems, also applied for an interim injunction so that the ship 's loading capacity may be checked. Under orders of the Court, an inspection of the ship was made and a report was submitted by an expert on 15th March, 1954, after the deter mination of its loading capacity so that the ship could finally sail only on 16th March, 1954. The Margao Comarca Court, where the claim and the counter claims were filed, held that the seller 's attorney, Thakker Junior, who had received Rs. 1,13,000/ , which had to be deducted from the price of the iron ore supplied, was not duly authorised by the power of attorney executed by the Sequeiras to sell. The Court did not find enough material to reach a definite conclusion about the quantity of ore supplied and left that to be determined in execution pro ceedings. It, however, held the first contract to be binding between the parties as it had been ratified by the seller and acted upon by the buyer. But, the second contract was held to be not binding upon the Sequeiras as Thakker (Jun ior) was found to have been given only a limited authority so that he could not constitute his father his attorney for the purpose of executing the second agreement. The Trial Court accepted the basis of the counter claim of the Sequei ras and found that the company had committed breaches of contract but left the quantum of damages to be determined in execution proceedings. The decree of the Trial Court was substantially affirmed in appeal. Nevertheless, the Additional Judicial Commission er Goa, Daman & Diu, had modified the decree, the appellant company has come up to this Court in appeal as of right. Two questions arise for determination before us. The first is whether the second contract of 5th February, 1954, was duly covered by the authority conferred by the Sequeiras upon their attorney, Ramesh Jethalal Thakker, or not. The second 454 relates to the amount of demurrage, if any, payable by the Sequeiras, the defendants respondents, to the plaintiff appellant. On the first question, the Judicial Commissioner concen trated on the dictionary meaning of the word "exploitation" used in the power attorney executed by the Sequeiras in favour of Thackker Junior. The learned Judicial Commissioner took the meaning of the word from Chambers ' 20th Century Dictionary which gave: "the act of successfully applying industry to any job, as the working of mines, etc; the act of using for selfish purposes". The learned Judicial Com missioner also referred to the inability of learned Counsel for the company to cite a wider meaning from the Oxford Dictionary which the learned Counsel had carried with him to the Court. The Judicial Commissioner then ruled: "Hence, I see no escape from the conclu sion that on the basis of the power of attor ney given by Sequeira to Ramesh the latter could not have entered into any agreement for sale of ore extracted from the mine belonging to Sequeira on his behalf. Consequently, Sequeira is not bound by the agreement dated 4th of February, 1954". As already mentioned by us, the first con.tract of 23rd January, 1954, was held to be binding despite this finding because the parties had acted upon it and dealt with each other on the basis that such a contract existed. We think that this background can be taken into account as indicating what the parties themselves understood about the manner in which the words used in the power of attorney dated 17th January, 1953, executed by Sequeiras in favour.of Thackker Junior was related to the actual facts or dealings between or by the parties. Moreover, the power of attorney had to be read as a whole in the light of the purpose for which it was meant. As it is not lengthy, we reproduce its operative part. It reads: "Jorge Anibal de Matos Sequeira, mar ried, major of age, businessman, landlord, residing in Panglm, whose identity was war ranted by witnesses, said in the presence of the same witnesses that by the present letter of attorney he appoints and constitutes his attorney Mr. Ramesh Jethalal, Bachelor, major of age, businessman, from Bombay, residing at present in Bicholim and conters on him the power to represent him, to make applications, allegations, and to defend his right in any public offices or Banks, to draw up and sign applications, papers, documents and corre spondence; specially those tending to acquire petrol, gunpowder, train, transport vehicles, machines, furniture (alfaias) and other in struments used in mining industry, apply for and obtain licences for importation and expo ration, to give import and export orders, even temporary, sign applications, suits and only other things necessary, attach and withdraw documents, make declaration. even under oath and in general any powers necessary for the exploitation of the mine named Pale Dongor situate at Pale for the concession of which the said Siqueira applied and which he is going to obtain to impugn, object, 455 protect and prefer appeals upto the higher Courts, notify and accept notifications and summons in terms of Sec. 35 and 37 of the C.P.C., to use all judicial powers without any limitation, to subrogate these powers to some one else. This was said and contracted. The witnesses were Bablo Panduronga Catcar ad Xec Adam Xecoli, both married landlords, major of age from Bicholim who sign below". Apparently, practice and custom have some bearing on these transactions in Goa. It is this reason that, although the power of Attorney was executed by Mr. Sequeira, yet, his wife was impleaded, according to the practice in Goa, and no objection was raised either on the ground that she was wrongly impleaded or that the power of attorney was vitiated on the ground that it was executed only by her husband. In any case, the subsequent agreement of 23rd January, 1954, which was held to have been acted upon, and the similar agreement of 5th February, 1954, of which also the defend ants were bound to have and did have full knowledge, were never repudiated by Sequeiras, before the filing of the suit before us. Indeed, the agreement of 5th February, 1954, appears to be a sequal to the first agreement of 23rd January, 1954. We do not think that the two could be really separated in the way in which the Judicial Commissioner thought that they could be by holding that the one was acted upon whereas the other was not. In any case, the second was the result of and a part of the same series of dealings between the parties. We do not however propose forest our findings on the ground that the parties are bound by the second agreement due to some kind of estoppel. We think that the terms of the power of attorney also justify the meaning which the parties themselves appear to have given to this power of attorney that is to say, a power to conduct business on behalf of the Sequeiras in such a way as to include sales on behalf of Sequeiras. We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself, and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings. We think that the rule of construction embodied in proviso 6 to Section 92 of the Evidence Act, which enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related, is applicable here, because we think that the words of the document, taken by themselves, are not so clear in their meanings as the learned Judicial Commissioner thought they were. As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "ex ploitation" torn out of its context. The word "exploita tion" taken by itself, could have been used to describe and confer only such general powers as may be 13 1546 SCI/76 458 them. If the word 'negotiate ' had stood alone, its meaning might have been doubtful, though, when applied to a bill of 'exchange or ordi nary promissory note, it would probably be generally understood to mean to sell or dis count, and not to pledge it. Here it does not stand alone, and, looking at the words with which it is coupled, their Lordships are of opinion that it cannot have the effect which the appellant gives to it, and, for the same reason, 'dispose of ' cannot have that effect". We think that this case also bears out the mode of construc tion adopted by us. We were then referred to O.A.P.R.M.,A.R. Adaikappa Chettiar vs Thomas Cook & Son (Bankers) Ltd.,(1) where the well known principle of ejusdem generis was applied to hold that general words following words conferring specifically enumerated powers "cannot be construed so as to enlarge the restricted power there mentioned". In this case, the purpose of the general power was subordinated to the specif ic powers given which determined the object of the power of attorney. There is no deviation in this case from the general rules of construction set out above by us. We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessari ly be subordinated to it. In fact, in a case like the one before us, where a general power of representation in ' various business transactions is mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being large ly common), applies. That rule is that specific instances do not derrogate from the width of the .general power ini tially conferred. To such a case the ejusdem generis rule cannot be applied. The mode of construing a document and the rules to be applied to extract its meaning correctly depend upon not only upon the nature and object but also upon the frame, provisions, and language of the document. In cases of uncertainty, the rule embodied in proviso 2 to Section 92 of the Evidence Act, which is applicable to contracts, can be invoked. Thus, the ultimate decision, on such a matter, turns upon the particular and peculiar facts of each case. Coming now to the second question, we find that the findings of fact recorded by the Judicial Commissioner are unexceptionable. Firstly, it was found that, although, under the contract, the defendants respondents could load iron ore at any time during 24 hours, which included the night, yet, the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient light ing or enough winches to enable due performance of the contract. Secondly, it was admitted that the appellant never opened a Letter of Credit with the named bank by 27 January, 1954, as promised by it. Thirdly, the delay in loading was held to be due to the fault of the company. The Judicial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim (1) 459 demurrage or damages. Indeed, it was found that the company did not have to pay any demurrage at all to the shippers for delayed departure. Learned Counsel for the appellant relied strongly on the following terms in the contract of 23rd January, 1954: "Demurrage (if any) in loading payable by Seller at the rate of US $ 800.00 per running day fraction of day pro rata. Buyers to pay despatch money at half the demurrage rate for all time saved in loading. Payment either way in Portuguese Indian rupee currency at the rate of exchange of Rs. 476/ for US $ 100.00. " The contention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage. It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not. We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves. It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading. When the appellant itself had committed breaches of its obliga tions, it is difficult to see how the respondents could be made responsible for the delay in loading. We think that the Judicial Commissioner had rightly disallowed this part of the claim. In the result, we partly allow this appeal, set aside the finding of the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954. We hold that this document embodied the terms of an agreement which was legally binding on both sides before us. The case will now go back to the Trial Court for determination of the liabilities of the parties to each other for alleged breaches of contract except to the extent to which the findings negative the claim to demurrage and the admitted payment of Rs. 1,13,000/by the appellant to the defendants which will have to be taken into account. The parties will bear their own costs. P.H.P. Appeal allowed in part 462 Ltd., Calcutta vs Commissioner of Excess Profits Tax, West Bengal(1) wherein the High Court held .that when a party at whose instance the reference had been made under section 66(1) of the Indian Income tax Act, 1922 does not appear at the hearing of the reference, the High Court is not bound to answer the question referred to it and should not do so. It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts. As against that Mr. Desai on behalf of the appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income tax, Madras vs section Chenniappa Mudaliar(1). It was held by this Court in that case that an appeal filed by the assessee before the Tribunal under section 33 of the Act should be disposed of on merits and should not be dismissed in default because of non appearance of the appellant. The Court in this context referred to section 33(4) of the Act and particularly the word "therein" used in that sub sec tion. It is urged by Mr. Desai that as the Tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits and answer the question referred to it. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appel lant for re hearing the reference and disposing of the matter on merits. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its nonappearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for non appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any ex press or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in such an (1) (2) 463 event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non appearance on the date of hearing. Our attention had been invited to the decision of the Alla habad High Court in Roop Narain Ramchandra (P) Ltd. vs Commissioner of Income tax, U.p.(1) wherein the High Court held that it has no power to recall an order returning a reference unanswered. For the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision. The facts brought out in the appli cation flied on behalf of the appellant show, in our opin ion, that there was sufficient cause for the non appearance on behalf of the appellant on the date of hear ing as well as for the non filing of the paper books within time. It also cannot be said that there was lack of dili gence on the part of the appellant in approaching of the High Court for recalling it 's earlier order and for dispos ing of the reference on merits. We accordingly accept the appeal, set aside the order of the High Court and remand the case to it for answering the questions referred to it on merits. Looking to all the circumstances, We make no order as to costs. M.R. Appeal al lowed. (1) 466 The Judgment of the Court was delivered by BHAGWATI, J. There is a house bearing No. 10 A situ ate at Khuldabagh in the city of Allahabad belonging to respondent No. 3. This house consists of a ground floor and a first floor. There are two tenements on the ground floor and two tenements on the first floor. Each of the two tene ments in the first floor is in the possession of a tenant. The tenement on the northern side of the ground floor is in the possession of respondent No. 3, while the tenement on the southern side is in the possession of the appellant as a tenant since the last over 35 years. The appellant pays rent of Rs. 4/ per month in respect of the tenement in his occupation. Respondent No. 3, after determining the tenan cy of the appellant, made an application before the Rent Control and Eviction Officer, Allahabad under section 3 of the U.P. Rent Control & Eviction Act, 1947 for permission to file a suit to eject the appellant on the ground that she bona fide required the rented premises in the possession of the appellant for her use and occupation. The Rent Control & Eviction Officer, on a consideration of the evidence led before him, came to the conclusion that the need of respond ent No. 3 for the rented premises was not bona fide and genuine and on this view, he rejected the application of respondent No. 3 by an order dated 23rd February, 1972. Respondent No. 3 preferred a revision application against the decision of the Rent Control and Eviction Officer to the Commissioner and, on the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. 13 of 1972), this revision application came to be transferred to the District Court under section 43 (m) of that Act and it was numbered as Civil Appeal No. 245 of 1972. The District Judge by an order dated 12th January, 1973 agreed with the view taken by the Rent Control and Eviction Officer and dismissed the appeal. However, within a short time thereafter, respondent No. 3 undaunted by her failure, filed an application before the Prescribed Authority on 18th January, 1974 under section 21(1) of U.P. Act No. 13 of 1972 claiming release of the rented premises in her favour on the ground that she bona fide required them for occupation by herself and the members of her family for residential purposes. The Prescribed Authority held that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was attracted in the present case, since the ground floor of house No. 10 A constitute a build ing, a part of which was under tenancy of the appellant and the remaining part was in the occupation of respondent No. 3 for residential purposes, and hence it must be held to be conclusively established that the rented premises were bona fide required by respondent No. 3. The Prescribed Au thority also went into the question of comparative hardship of the appellant and respondent No. 3 and observed that greater hardship would be caused to respondent No. 3 by refusal of her application than what would be caused to the appellant by granting it. On this view, the Prescribed Authority allowed the application of respondent No. 3 and released the rented premises in her favour. The appellant being aggrieved by the order passed by the Prescribed Authority prefered an appeal to the District Court, Allahabad. The 467 District Court agreed with the view taken by the Prescribed Authority that Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 was applicable to the facts of the present case and "that fact conclusively proved that the building was bona fide required" by respondent No. 3. But on the question of greater hardship, the District Court disagreed with the conclusion reached by the Prescribed Authority and held that the appellant was likely to suffer greater hard ship by granting the application than what respondent No. 3 would suffer by its refusal. The District Court accordingly allowed the appeal and rejected the application of respond ent No. 3 for release of rented premises. This led to the filing of a writ petition by respondent No. 3 in the High Court of Allahabad challenging the legali ty of the order rejecting her application. Respondent No. 3 contended that since her bona fide requirement of the rented premises was established by reason of applicability of Explanation (iv) to section 21 (1) of U.P. Act No. 13 of 1972, the question of comparative hardship was immaterial and the District Court was in error in throwing out her application on the ground that greater hardship would be caused to the appellant by granting her application than what would be caused to her by refusing it. The High Court while dealing with this contention observed that the Pre scribed Authority had recorded a finding of fact that "the accommodation on the ground floor constituted one building" and "the respondent was in possession of a part of the building and the land lady was in occupation of the remain ing part of the building for the residential purposes" and this finding of fact reached by the prescribed Authority was confirmed by the District court and in view of this finding which the High Court a apparently thought it could not disturb, the High Court proceeded on the basis that Expla nation (iv) to section 21 (1) of U.P. Act No. 13 of 1972 was applicable in the present case. But the High Court went on to point out that once it was held that Explanation (iv) to section 21(1) of the U.P. Act No. 13 of 1972 was attracted, there could be no question of examining comparative hard ship, for in such a case greater hardship of the tenant would be an irrelevant consideration. The High Court on this view allowed the writ petition, set aside the order of the District Court and allowed the application of respondent No. 3 for release of the rented premises but gave two months ' time to the appellant to vacate the same. The appel lant being dissatisfied with this order passed by the High Court preferred the present appeal with special leave ob tained from this Court. Now, it may be pointed out straight away that if Explanation (iv) to section 21(1) of U.P. Act No. 13 of 1972 is applica ble in the present case, the question of comparing the relative hardship of the appellant and respondent No. 3 would not arise and respondent No. 3 would straight away be entitled to an order of eviction as soon as she shows that the conditions specified in the Explanation are satisfied. Section 21 (1), as it stood at the material time with the retrospective amendment introduced by the U.P. Urban Build ings (Regulation of Letting, Rent & Eviction) (Amendment) Act, 1976 being U.P. Act 470 accommodation which is the subject matter of tenancy. The question thus is: what is the sense in which the word 'buil ding ' is used when it occurs for the second time in the Explanation. The context clearly indicates that the word 'building ' is there used to denote a unit, of which the accommodation under tenancy constitutes a part and the remaining part is in the occupation of the land, lord for residential purposes. The accommodation under tenancy and the accommodation in the occupation of the landlord together go to make up the 'building '. The use of the word 'part ' is a clear pointer that the 'building ', of which the accommoda tion under tenancy and the accommodation in the occupation of the landlord are parts, must be a unit. Where a super structure consists of two or more tenements and each tene ment is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit. It is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord, that the Explanation, would be attracted. To determine the applicability of the Explana tion, the question to be asked would be whether the accommo dation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommoda tion ? The object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover posses sion of the part let out to the tenant. It could never have been intended by the Legislature that where a super struc ture consists of two independent and separate units of accommodation one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view in conferring such a right on the landlord. Such a provision would be plainly contrary to the aim and objective of the legisla tion. On the other hand, if we read the Explanation to be applicable only to those cases where a single unit of accom modation is divided by letting out a part to a tenant so that the landlord, who is in occupation of the remaining part, is given the right to evict the tenant and secure for himself possession of the whole unit, it would not unduly restrict or narrow down the protection against eviction afforded to the tenant. This construction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant, unless the landlord establishes his bona fide requirement of the accom modation under tenancy. We may point out that Mr. Justice Hari Swarup has also taken the same view in a well consid ered judgment in Chuntwo Lal vs Addl. District fudge. Alla habad(1) and that decision has our approval. Since the question as to the applicability of Explana tion (iv) on the facts of the present case has not been considered by the High Court as well as the lower courts on the basis of the aforesaid construction of the Explanation, we must set aside the judgment of the High Court as also the order of the District Court and remand the case to the District Court with a direction to dispose it of in the light 471 of the interpretation placed by us on the Explanation, It was contended before us on behalf of the appellant that since Explanation (iv) has been omitted by U.P. Act No. 28 of 1976, respondent No. 3 was no longer entitled to take advantage of it and her claim for possession must fail. But the answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was prospective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her applica tion for release, she had a vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the pro spective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976. We have not pronounced on these rival conten tions since we think it would be better to leave it to the District Court to decide which contention is correct. If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, the District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Pre scribed Authority. If the District Court finds that the case is covered by Explanation (iv), there would be no ques tion of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of release of the rented premises in her favour. On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitled to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fail, since it has already been found by the District Court and we do not ' propose to disturb this finding that the appellant would suffer greater hardship by granting of the application than what would be suffered by respondent No. 3 if the application were to be refused. We accordingly remand the matter to the District Court with no order as to costs. P.H.P. Appeal allowed. [/INST]The appellant was convicted by the Sessions Court under section 302, IPC, and sentenced to death. On the date of the judgment his advocate was not present. The trial court did not give the accused an opportunity to be. heard in regard to the sentence as required by section 235(2), Cr.P.C., 1973. The appellant also did not insist on his right to be heard. The conviction and sentence. were, confirmed by the High Court. Even in the High Court the accused did not complain that the trial court had committed a breach of section 235(2). On the question whether the sentence is vitiated because of the violation .of section 235(2), HELD: The matter should be remanded to. the trial court for giving an opportunity to the appellant on the question of sentence. Per Bhagwati, J: (1) Under section 235(1) the court must, in the first instance, deliver a judgment convicting or acquit ting the accused. If the accused is acquitted, no further question arises. If the accused is convicted, at that stage, he must be given an opportunity to be heard in regard to the sentence, and it is only after hearing him that the court can pass sentence. [232 D E] (2) Section 235(2) is a new provision in consonance with the modern trends in penology and sentencing procedures. Sentencing is an important stage in the process of adminis tration of criminal justice, and should not be consigned to a subsidiary position. Many factors have to be considered before a proper sentence is passed such as the nature of the offence; the circumstances extenuating or aggravating of the offence; the prior criminal record, if any, of the offender; his age; his record of employment; his background with reference to education; home life. sobriety and social adjustment; his emotional and mental condition; the pros pects for his rehabilitation; the possibility of his return to a normal life in the community; the possibility of treat ment or training Of the offender; the possibility that the sentence may Serve as a deterrent to crime by the offender or by others and the current community need, if any for such a deterrent in respect to the particular type of of fence. The material relating to these factors may be placed before the court by means of affidavits. The hearing contem plated by section 235(2) is not confined merely to hearing oral submissions, but .it is also intended to give an opportunity to the prosecution and the accused to place. before the court facts and material relating to the various factors bearing on the question of sentence, and if they are con tested by the other side, then to produce evidence for the purpose of establishing those factors. Otherwise, the hearing would be devoid of meaning and content. The Court must however be vigilant to see that this hearing on the question of sentence is not abused and turned into an in strument for unduly protracting 1he proceedings. [232 E; G A B] Ediga Anammo vs State of Andhra Pradesh ; referred to. (3) If the trial court had, instead of sentencing the appellant to death, imposed on him the sentence of the imprisonment, he would not be, aggrieved by the breach of section 235(2 ), because, even after hearing the appellant, the. trial court could not have passed a more favourable sen tence. But the trial court imposed death sentence and the possibility cannot be ruled out that if the 230 appellant has been given an opportunity to produce material and make submissions on the question of sentence, he might have been able to persuade, the trial court to impose the lesser penalty. [235 D E] (4) Since the section is a new provision it is quite possible that many lawyers and judges might be unaware of it. In the present case obviously the trial court as well as the appellant 's advocate in the High Court were aware of it. No inference can, therefore, be drawn against the appellant that he had nothing to say from his omission to raise this point in the High Court. [236 A] (5)(a) Non compliance with the requirement of the sec tion cannot be described as a mere irregularity curable under section 465. It amounts to by_passing an important stage of the trial so that the trial cannot be said to be that contemplated by the Code. Such deviation constitutes diso bedience of an express provision of the Code as to the mode of trial and hence cannot be regarded as a mere irregulari ty. [236 H] Subramania Iyer vs King Emperor (1901) 28 I.A. 257 referred to. (b) The; violation goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence. [237 B] Pulukuri Kotayya vs King Emperor, (1947) 74 I.A. 65 and Magga vs State of Rajasthan, ; referred to. (c) When no opportunity has been given to the appellant in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit and section 465 cannot have any application. [137 B] Per Fazal Ali J. (1) The 48th Report of the Law Commis sion and the statement of objects and reasons of the 1973 Code of Criminal Procedure show that section 235(2) is a very salutary provision. It contains one of the cardinal fea tures of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him. It seeks to achieve a socio econonmic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society. Section 235 is split up into two inte gral parts, (a) the stage which culminates in the passing of the judgment of conviction or acquittal; and (b) the stage which, on conviction, results in imposition of sentence on the accused. Both these parts are absolutely fundamental and non compliance with any of the provisions would undoubt edly vitiate the final order passed by the Court. Section 235(2) enjoins on the Court to stay its hands after passing a judgment oF conviction and hear the accused on the ques tion of sentence before passing sentence. [238 H; 239 E; C] (2) There may lye a number of circumstances of which the Court may not be aware but which may be taken into consider ation by the court while awarding the sentence, particularly a sentence of death. The accused must be given an opportu nity of making his representation and placing such materials which have a bearing on the question of sentence. Parlia ment has not intended that the accused should adopt dilatory tactics under the cover of this new provision but contem plated that a short and simple opportunity has to be given to the accused to place materials bearing on the question of sentence, if necessary by leading evidence, before the .Court, and a consequent opportunity to the prosecution to rebut those materials. The Court must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed. [240 F G] (3) Non compliance with the section is not a mere irreg ularity which can be cured by section 465 of the Code. It is an illegality which vitiates the sentence. Having regard to the object and the setting in which the new provision was in serted, there can be no doubt that it is one of the most fundamental parts of criminal procedure and non compliance thereof will ex facie vitiate the order. 231 Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this provision, since the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and this manifest ly results in a serious failure of justice. [240 B C] [Both the learned Judges indicated that there must be a system of training judges in the application of socio eco nomic laws and in modern methods and techniques of decision making and sentencing procedures] </s>

<s>[INST] Summarize the judgementl Appeals Nos. 1302 to 1906 of 1968. 752 Appeals by special leave from the judgment and orders dated September 26, 27 and 29, 1967 of the Mysore High Court in Writ Petitions Nos. 907, 1004, 1005, 1175 and 1245 of 1967. Jagadish Swarup, Solicitor General, C. R. Somasekharan 'and R. B. Datar for the appellants (in all the appeals). M. Veerappa and G. Narayana Rao, for respondent No. 1 (in all the appeals). section section Javali and section P. Nayar, for respondent No. 2 (in all the appeals). The Judgment of the Court was delivered by Vaidialingam, J. These five appeals, by special leave, by the City Municipal Council, Mangalore and the Commissioner of the City Municipal Council, are directed against the orders passed by the Mysore High Court in Writ Petitions Nos. 907, 1004, 1005, 1175 and 1245 of 1967, quashing the demand notices issued by the appellants against the first respondent in each of these appeals for payment of property tax for the half year ending September 30, 1966. As the grounds of attack levelled against the demand notices by the said respondents are common, we will only refer to the averments contained in Writ Petition No. 907 of 1967 out of which Civil Appeal No. 1302 of 1968 arises. buildings situated in Ward 11 and Ward XX, within Mangalore Municipality in the South Canara District, which originally formed part of the Madras State and which, on reorganisation of the States, became part of the State of Mysore. The Mysore Municipalities Act, 1964 (Act XXII of 1964) (hereinafter referred to as the Mysore Act) came into force from April 1, 1965 as per the notification, dated September 23, 1965 issued by the State Government. Certain sections had already come into force. Till the Mysore Act came into force, the Mangalore Municipality was governed by the Madras District Municipalities Act, 1920 (Act V of 1920) (hereinafter called the Madras Act). The Madras Act had provided for levy of property tax the procedure to be adopted for the same and as to how the annual value of a building was to be arrived at as well as the percentage at which the property tax was to be levied. Similarly the Mysore Act had also provided for levy of property tax, prescribing the ascertainment of annual ratable value and also the rate at which the tax was to be levied. Although the Mysore Act came into force from April 1, 1965 the appellants issued demand notices for property tax under the said Act for the assessment year 1965 66. In those demand notices, the Municipal Council determined the ratable annual 753 value under section 101 (2) of the Mysore Act and assessed the tax on the basis of that annual ratable value, but at rates under the Madras Act. The tax was paid as per the demand notices. But on March 16, 1967 the appellant issued the impugned notices of demand under the Madras Act for payment of property tax for the year 1966 67. The tax demanded on the basis of the Madras Act was considerably higher than that originally demanded and paid under the Mysore Act for the assessment year 1965 66. Notwithstanding the protest made by the first respondent, the appellants threatened to collect the tax as per the demand notices and hence the first respondent filed Writ Petition No. 1907 of 1967 challenging the demand notices. The main grounds of attack against the. demand notices, as raised in the said Writ Petition were that after the passing of the Mysore Act the appellants had no power to levy property tax under the Madras Act and therefore the demands were illegal. The demand notices were further attacked on the ground that section 382 of the Mysore Act, which related to the repeal of many Acts including the Madras Act and the saving provisions contained therein did not justify the issue of the demand notices. The first respondent accordingly prayed for quashing the demand notices issued under the Madras Act. He had also raised certain contentions regarding the levy of health cess included in the notices; but it is unnecessary to refer to those averments as the High Court has held against the first respondent and that question does not arise in these appeals. The appellants pleaded that under the Mysore Act property tax, among other things, has been imposed after following the procedure prescribed in sections 95 to 97 therein and the imposition of tax has come into force from April 1, 1967, but for the period in question viz., the year 1966 67 the demands were legal and valid in view of the provisions contained in section 382 of the Mysore Act. Notwithstanding the repeal of the Madras Act, the provisions contained in section 382 of the Mysore Act clearly saved the right of the appellants to levy property tax under the Madras Act to adopt both the annual value as well as the rate of tax as per the assess ment registers maintained under the said Act. In particular, the appellants relied upon the second proviso in section 382(1) of the Mysore Act and the third proviso inserted in the said section with retrospective effect, by the Mysore Municipalities (Amendment) Act ', 1966 (Mysore Act XXXIV of 1966). According to the appellants, as necessarily the imposition of property tax under the Mysore Act, after following the procedure contained therein will take time, the Legislature had made consequential provisions in section 382 with a view to enable the imposition of property tax under the repealed enactments during the interim period. The High Court has, by and large, accepted the contentions of the first respondent. According to the High Court, although 754 the higher rate of tax under the Madras Act is preserved by proviso 3 to section 382(1) of the Mysore Act, the provision for the determination of the annual value under section 82(2) of the Madras Act is not saved. The High Court is further of the view that the second proviso to section 382(1) of the Mysore Act only continues the old impost and the third proviso preserves the old rates and that they do not continue the old annual value. The net result of the decision of the High Court is that the Municipal Council has to determine the annual ratable value of the building as provided by section 10 1 (2) of the Mysore Act and to assess the property tax at the rate at which it is assessed under the Madras Act. Finally the High Court quashed the demand notices issued by the appellants. The learned Solicitor General, appearing for the appellants, urged that the High Court was in error in interpreting the second and third provisos to section 382(1) of the Mysore Act. it was urged that as the levy of property tax after adopting the procedure indicated in the Mysore Act will take time, the Legislature had, by incorporating the necessary provisions in section 382, particularly the second and third provisos to sub section (1), preserved the right of the, Municipal Council concerned to adopt not only the annual value but also the rate of property tax payable according to the assessment registers maintained under the Madras Act, till they are superseded by anything done under ' the Mysore Act. The learned Solicitor General, further urged that the view of the High Court that the annual ratable value has to be determined under the Mysore Act and the computation of the rate 'of tax has to be under the Madras Act, was anomalous and was not warranted by the provisions of the Mysore Act. On the other hand, Mr. Veerappa, learned counsel appearing for the first respondent in all the appeals, has supported the view taken by the High Court and urged that a proper interpretation had been placed on section 382 of the Mysore Act. According to the learned counsel, normally, after the coming into force of the Mysore, Act, no assessments could be made under ' the Madras Act, but section 382 of the Mysore Act, repealing the Madras Act, had made certain special provisions the existence of which alone would attract certain actions taken under the Madras Act. In order to appreciate the contentions, noted above, it is necessary to refer broadly to the scheme of the two Acts relating to the levy of property tax. We shall first advert to the, Madras Act. Under section 78(1) power given to the Municipal Council to levy, among other taxes, a property tax. Under sub section (3), a resolution of a municipal council determining to levy a tax has to 755 specify the rate at which such tax is to be levied and the date from which it shall be lived. Section 81(1) provides that it a Council by resolution determines that a property tax shall be levied, such tax shall be levied on all buildings and lands within the municipal limits save those exempted by the statute or by any other law. Sub section (2) states that the tax shall be levied at such percentages of the annual value or the buildings or lands as may be fixed by the Municipal Council, Subject to section 78. under this section, we are informed that 25 % has been fixed as the maximum rate. Sub section (2) of section 82 provides that the annual value of the lands and buildings shall be deemed to be the gross annual rent at which they may reasonably be, expected to be let from month to month or from year to year less a deduction in the case or buildings, or ten per cent of that portion of such annual rent which is attributable to buildings alone. it further provides that the sale deduction shall be in lieu or all allowance for repairs or on any other account. Section 86 provides that the property tax shall be levied every halt year and shall, excepting as otherwise provided in schedule IV, be paid lay the owner within thirty days of the commencement of the half year. Section 124 provides that the rules and tables embodied in Schedule IV shall be read as part of Chapter VI, dealing with Taxation and Finance. Schedule IV deals with Taxation and Finance Rules. Rule 2 provides for the preparation and maintenance of assessment books showing the persons and property liable to taxation under the Act and the assessment books being made available for inspection by the tax payers. Rule 6 provides for the value of any land or building for purposes of property tax being determined by the executive authority. Under rule 7, the executive authority has to enter in the assessment books the annual or capital value of all lands and building and the tax payable thereon. Rule 8(1) states that the assessment books shall be completely revised by the executive authority once in every five years. Sub rule (2) thereof provides for amending the assessment books at any time between one general revision and another in the manner indicated therein. A. perusal of the provisions referred to above, shows that under the Madras Act the property tax is levied on the annual value of buildings which is deemed to be the gross annual rental value less a deduction of ten per cent of that portion of annual rent is attributable to the buildings alone. The Municipal Council has to pass a resolution determining to levy the property tax and that resolution should also specify the rate at which such tax is to be levied as also the date from which it shall be levied and the tax is levied every half year. The executive authority has to maintain the assessment books containing entries regarding the annual value as well as the tax payable thereon. The executive authority is under an obligation to completely revise the assessment once in very five years. L5SupCI 3 756 There is no controversy that the Madras Act was applicable to the City of Mangalore, even after it formed part of the Mysore State on me reorganization of the States. The Madras Act, as we have mentioned earlier, was repealed by the Mysore Act, which came into force with effect from April 1, 1965. Coming to the Mysore Act, Chapter VI deals with Municipal Taxation. section 94 enables a municipal council to levy a tax on buildings or lands or both situated within the municipality, after complying with tile procedure indicated therein and subject to any general or special orders of Government and at rates not exceeding those specified in Schedules I to VII. The maximum rate has been fixed at 24 % of the annual ratable value. Section 2(1) defines annual retable value ' as the gross annual rent for which any building or land exclusive of furniture or machinery might reasonable be expected to be let from month to month or year to year. Section 95 deals with the procedure to be adopted preliminary to imposing a tax. Section 10 1 (2) provides that the annual ratable value of a building shall be the gross annual rent as defined in cl. (1) of section 2, less a deduction of sixteen and two thirds per cent of such annual rent. It further states that the said deduction shall be in lieu of all allowances for repairs or on any other account whatsoever. Section 103 deals with the preparation of an assessment list. Section 382(1) repeals the various enactments referred to therein, including the Madras Act. The first proviso, which saves certain matters, does not come into the picture in this case. The second proviso as well as the third proviso, introduced by the Mysore Municipalities (Amendment) Act, 1966 are relevant for our purpose and they ire as follows "(2) Provided further that subject to the preceding proviso anything done or any action taken (including any appointment or delegation made, tax, fee or cess imposed, notification, order, instrument, or direction issued, rule, regulation, form, bye law or scheme framed, certificate obtained, permit or licence granted or registration effected) under the said laws shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act : (3) Provided further that notwithstanding anything contained in the preceding proviso where any tax, duty, fee or cess other than a duty on transfers of immovable properties has been imposed under the said laws at a rate higher than the maximum rate permissible under this Act. such tax,. fee or cess may continue to be 757 imposed and collected at such higher rate unless and Until superseded by anything done or any action taken under this Act. " The third proviso has been introduced with retrospective effect by the Amending Act. It is not really necessary for us to consider more elaborately the scheme of the Mysore Act because. even according to the appellants, the procedure indicated therein whatever may be the procedure, about which we express no opinion has not been taken before the issue of the demand notices which were under challenge before the High Court. On the other hand, the appellants have exclusively relied on the second and third provisos to section 382 (1) of the Act. The learned Solicitor General has urged that the assesment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to section 382(1) the property tax can be levied and collected as per the provisions of the Madras Act. In particular, the learned Solicitor General placed reliance upon the provisions of the Madras Act relating to the maintenance of assessment books and the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969. The second proviso to section 382(1) no doubt saves any tax which had been imposed under the Madras Act. Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act, as per the second proviso and tax at a higher rate should have been imposed again under the Madras Act as per the third proviso. We are not inclined to accept the contention of the learned Solicitor General that by merely preparing the assessment registers under the Madras Act on April 1, 1964 it can be stated that a tax has been imposed under the second proviso or a tax at a higher rate has been imposed under.the third proviso. We have already referred to the material provisions of the Madras Act relating to the ' levy of property tax. Those provisions show that the municipal tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for such official year. This was the view expressed by this Court in Municipal Corporation vs Hiralal(1), while interpreting certain provisions of the Madhya Bharat Municipalities Act, 1954. No doubt the wording in the Madhya Bharat Act in section 76, dealing with assessment list was slightly different but in our opinion the (1) ; 758 principle enunciated in that decision regarding the municipal tax being an annual tax leviable for a particular official year and the assessment list, on the basis or which the tax is assessed having currency for each such official year, is applicable also to the interpretation of the Madras Act. No resolution passed by the Municipal Council regarding the levy of the property tax and the rate at which it is to be levied, having currency for the year 1966 67, has been brought to our notice. The learned Solicitor General has drawn our attention to the minutes, dated September 15, 1966 as well as the Council 's resolution No. 1280 dated December 20, 1966 relating to the levy of property tax in the City of Mangalore for the period in question, under the Mysore Act. Those proceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax. Normally, the municipal council will have to prepare a fresh assessment list, every year. By virtue of section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as part of Chapter VI dealing with Taxation and Finance. Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years. But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied. That the tax is an annual tax is also borne out by sub section (2) of section 82. If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years, is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the. right to object to the valuation regarding the annual value or the tax assessed thereon. This will be the result even though the annual value may have decreased for one reason or the other. It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted. Having due regard to the second and third provisos to section 382(1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected. But no such tax having been imposed under the Madras Act, the 759 second and third provisos to section 382(1) do not apply and hence the demands for payment of property tax for the period are not justified. Though we are not in agreement with some of the reasons given by the High Court for issuing the writ, the conclusion arrived at by the High Court that the second and third provisos to section 382(1) of the Mysore Act do not justify the issue of the demand notices for the period in question, is correct. The result is that the appeals fail and are dismissed with costs. There will be only one hearing fee. [/INST]A highway has its origin, apart from statute, in dedication either express or implied, by the owner of land of a right of passage over it to the public and the acceptance thereof by the public. Dedication is presumed by long and uninterrupted user of a way by the public. The presumption in such cases is so strong as to dispense with all enquiry into the actual ownership of the land or the intention of the owner about its user. All public streets and roads vest in the State, but the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally; but subject to such limitations the the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways. G. section section Motor Service vs State of Madras ([19521 referred to with approval. Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of vehicles. It is to this carrying on of the trade or business that the guarantee in article 19(1) (g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article. Article 19(6) as the result of the Constitution (First Amendment) Act, 1951, enables the State to carry on any trade or business either by itself or through corporations owned or controlled by the State to the exclusion of private citizens wholly or in part. This provision of article 19(6), which was introduced by the amendment of the Constitution in 1951, was not in existence when the U. P. Road Transport Act, 1951 (U. P. Act II of 1951), was passed and therefore the validity of the impugned Act is not to be decided by applying the provisions of the now clause. Amendment of the Constitution which came later cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed, because a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the Constitutional objection but must be reenacted. Although the normal use of the word "restriction" seems to be in the sense of limitation and not extinction but (without expressing any final opinion on the matter) if the word " I restriction" does not include total prohibition then the impugned Act cannot be justified under article 19(6) of the Constitution and it would 709 be void unless supported by article 31. If however the word Is restriction" in article 19(6) be taken in certain circumstances to include prohibition as well then the prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the State of Uttar Pradesh as laid down by the impugned Act, cannot be justified as reasonable restrictions imposed in the interests of the general public. Whether the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it. There is nothing wrong in the nature of the motor transport trade in the present case which is perfectly innocuous. The U. P. Road Transport Act, (II of 1951) which violates the fundamental rights of the private citizens guaranteed under article 19(1) (g) of the Constitution and is not protected by clause (6) of article 19 as it stood at the time of enactment must be held to be void under article 13(2) of the Constitution. The effect of the prohibition of the trade or business of the citizens by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31(2) of the Constitution and therefore U. P. Road Transport Act, 1951, offends against the provision of that clause inasmuch as no provision for compensation has been made in the Act. The impugned Act is not void on the ground that it offends against the equal protection rule embodied in article 14 of the Constitution. The contention whether the impugned Act conflicts with the guarantee of freedom of inter State and intra state trade, commerce and intercourse provided for by article 301 of the Constitution discussed and the points that could be raised and the possible views that could be taken indicated without expressing any final opinion thereupon. Cooverjee vs The Excise Commissioner, etc. ([1954] S.C.R. 873) distinguished. West Bengal vs Subodh Go pal Bose and Others ([1954] S.C.R. 587) and Dwarkadas Shrinivas vs The Sholapur Spinning and Weaving Co. Ltd. ([1954] S.C.R. 674) followed. Packard vs Banton (68 L.E. 596; ; , Frost vs Railroad Commission (70 L.E. 1101), Stephenson vs Binford (77 L.E. 288), Motilal vs Uttar Pradesh Government (I.L.R. 1951 All. 257), Municipal Corporation of the City of Toronto vs Virgo ([1896] A.C. 88), A. K. Gopalan vs The State ([1950] S.C.R. 88), Lokanath Misra vs The State of Orissa (A.I.R. 1952 Orissa 42), Commonwealth of Australia and Others vs Bank of New South Wales and Others ([1950] A.C. 235) and P. and 0. Steam Navigation Co. vs The Secretary of State (1861 5 B.H.C.R. Appendix 1) referred to. 91 710 </s>

<s>[INST] Summarize the judgementiminal Appeal No. 26 of 1964. Appeal from the judgment and order dated November 20, 1963 of the Mysore High Court in Criminal Appeal No. 49 of 1963. B. R. L. Iyengar and A. G. Ratnaparkhi for the appellant. A. K. Sen, D. R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the respondent. Niren De, Additional Solicitor General and B. R. G. K. Achar, for the intervener. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Mysore High Court. The appellant was prosecuted under section 167 (81) of the Sea Customs Act (No. 8 of 1878) read with section 9 of the Land Customs Act (No. 19 of 1924). The appellant lives in a village which is close to Goa. The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part of India but was Portuguese territory. The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum received information that contraband goods would be found in the house of the appellant. Consequently he raided the house in the company of three panchas. The appellant was not present in the house when the raid took place, but his mother and sisterin law were there. After necessary formalities the house was searched and a big steel trunk, a cane box and another steel trunk were taken down from the loft in the kitchen. On opening, a belt, with four pouches stitched to it, was found in the big steel trunk. Inside the pouches, four gold bars with foreign marks and labels of Goa Customs authorities were found. Besides these, a large sum of money and three small cut pieces of gold were also found in the box. In the other two boxes also various sums of money in currency notes were found. The weight of the gold bars was 343 tolas. On November 30, 1960, the appellant was arrested and inter rogated by the Deputy Superintendent of Customs and Excise. The answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him. During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the moming by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor stand at Belgaum or near there, and be had kept them in his house. As the gold was foreign gold 700 and as under the notification under section 8(1) of the Foreign Exchange Regulation Act, 1947, import of gold into India had been for,bidden except with the general or special permission of the Reserve Bank of India, the appellant was prosecuted on a complaint filed by the Assistant Collector of Central Excise and Land Customs, Goa Frontier Division, Belgaum. The Magistrate convicted the appellant and sentenced him to imprisonment and fine and also ordered confiscation of the four gold bars. On appeal to the Sessions Judge, the appellant was acquitted relying on the decision of the Calcutta High Court in Sitaram Agarwala vs State(1). Then followed an appeal by the State to the High Court. The High Court disagreed with the view takeu by the Calcutta High Court in Sitaram Agarwal 's case(1) and held that even a person like the appellant who might have no direct concern with the import of gold in any way was liable under section 167(81) of the Sea Customs Act. The High Court then ,considered the evidence and relying on the statement made by the appellant to the Deputy Superintendent of Customs and Excise and also on the other evidence produced in the case held that the appellant was guilty. In consequence, the acquittal of the appellant was set aside and the order of conviction and sentence passed by the Magistrate was restored. The appellant then applied to the High Court for a certificate to appeal to this Court, and as two questions of law of general importance arose in this case, the High Court granted the certificate. The two questions were : (1) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwal 's case(1) with respect to the interpretation of section 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence in view of section 25 of the Indian Evidence Act (No. 1 of 1872). These are the two questions which have been argued before us on behalf ,of the appellant in the present appeal. So far as the first question is concerned, namely, the interpretation of section 167(81) of the Sea Customs Act, the matter is now settled by the decision of this Court in Sachidananda 'Bannerjee, Assistant Collector of Customs vs Sitaram Agarwal and another(2). This Court has held therein that the interpretation put by the Calcutta High Court in the case of Sitaram Agarwala(1) is not correct and that section 167(81) of the Sea Customs Act can also take in persons who may not be concerned the actual import of prohibited goods. The view taken by the Mysore High Court is in accordance with the view taken by this Court in that appeal and in view of that,, learned counsel for the appellant has admitted (1) (2) 701 that the appellant would be guilty within the meaning of section 167 (81) of the Sea Customs Act. This leaves only the second question, and it has been urged on behalf of the appellant that a Central Excise Officer under the Central Excises and Salt Act, No. I of 1944 (hereinafter referred to as the Act) is a police officer within the meaning of those words in section 25 of the Evidence Act. Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Customs Act, he was still a police officer, and the statement made to him by the appellant on November 30, 1960 which is in the nature of a confession would be inadmissible under section 25 of the Evidence Act. It may be added that the High Court had in this connection relied on the judgment of this Court in the State of Punjab vs Barkat Ram( ) where it had been held by majority that a Customs. Officer under the Sea Customs Act was not a police officer within the meaning of section 25 of the Evidence Act. The appellant however relies on a later decision of this Court in Raja Ram Jaiswal vs State of Bihar(2) where by majority it was held that an excise officer under the Bihar and Orissa Excise Act (No. 2 of 1915) was a police officer within the meaning of section 25 of the Evidence Act. There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in section 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case in support of this view is Nanoo, Sheikh Ahmed vs Emperor(3). The other view which may be called the narrow view is that the words "police officer" in section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on. The leading case in support of this view is Radha Kishun Marwari vs King Emperor(4). The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court. It is submitted on behalf 'of the appellant that the view taken by the Bombay High Court in Nanoo Sheikh Ahmed(3) is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct. On the other hand it has been urged on behalf of the State that the view taken by the Patna High (1) ; (2) [1964]2 S.C.R. 752. (3) Bom. (4) patna 46. C.1./66 13 702 Court in Radha Kishun Marwari(1) is the correct one. Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court. But as we have come to the conclusion that even in the broad view, a Central Excise Officer under the Act is not a police officer, it is unnecessary to express a final opinion on the two views on the meaning of the words "police officer" in section 25 of the Evidence Act. We shall proceed on the assumption that the broad view ' may be accepted and that requires an examination of the various provisions of the Act to which we turn now. The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to find upto Rs. 2,000 or both where a person (a) contravenes any of the provisions of a notification issued under section 6 or of section 8 or of a rule made under cl. (iii) of sub section (2) of section 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in cls. (a) and (b) above. Under section 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to. believe to be liable to punishment under the Act. Section 18 lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code. Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer in charge of the nearest police station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on excisable goods. Strong reliance has however been placed on behalf of the appellant on section 21 of the Act, the material part of which runs thus: "21. (1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so (1) Patna 46. 703 arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2)For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case; Provided that. . . . . . " It is urged that under sub section (2) of section 21 a Central Excise Officer under the Act has all the powers of an officer in charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in section 25 of the Evidence Act. It is true that sub section (2) confers on the Central Excise Officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub section (1) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under section 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person. Further under proviso (a) to sub section (2)of section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such. Magistrate. It does not however appear that a Central Excise Officer under the Act has power to submit a charge sheet under section 173 of the Code of Criminal Procedure. Under section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of cl. (b) above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl. (a) above if he wants the Magistrate to take cognizance of an offence, for "ample, under section 9 of the Act. Thus though under sub section (2) of section 21 of the Central Excise Officer under the Act has the powers of an officer incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub section (1) of section 21. Section 21 is in terms different fro section 78(3) of the Bihar and Orissa Excise Act,1915 which came to be considered in Raja Ram Jaiswal 's 704 case(1) and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under section 77, sub section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station". It cannot therefore be said that the provision in section 21 is on par with the provision in section 78(3) of the Bihar and Orissa Excise Act. All that section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge sheet under section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer in charge of a police station. It has been urged before us that if we consider section 21 in the setting of section 14 of the Act, it would become clear that the enquiry contemplated under section 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal Procedure. It is not necessary to decide whether the enquiry under section 14 must also include enquiry mentioned in section 21 of the Act. Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer, a police officer even in the broader view mentioned above. Otherwise any person entrusted with investigation under section 202 of the Code of Criminal Procedure would become a police officer. In any case unlike the provisions of section 78(3) of the Bihar and Orissa Excise Act, 1915, section 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer in charge of a police station and the area under his charge shall be deemed to be a police station. All that section 21 does is to give him certain powers to aid him in his enquiry. In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer in charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in section 25 of the Evidence Act. The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja Ram Jaiswals ' case(1) taking even the broader view of the words "police officer" in section 25 of the Evidence Act. We are of opinion that the present case is more in accord with the case of Barkat Ram(2). In this view, (1) ; , (2) ; 705 of the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of section 24 of the Evidence Act. As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and therefore section 24 of the Evidence Act has no application in the present case. It is not disputed that if this statement is admissible, the conviction of the appellant is correct. As we have held that a Central Excise Officer is not a police officer within the meaning of those words in section 25 of the Evidence Act the appellant 's statement is admissible. It is not ruled out by anything in section 24 of the Evidence Act and so the appellant 's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal. Appeal dismissed. [/INST]By notifications issued in October 1958, May 1959 and April 1960, the Mysore Public Service Commission invited applications for the recruitment of 80 probationary Assistant Engineers . The qualifications, pay, age limit and other conditions for eligibility were prescribed by these notifications. On March 1, 1960, it was notified by the Governor, that for direct recruitment to appointments and posts in the services of the State, reservations for Scheduled Castes and Scheduled Tribes would be 15% and 3%; and the reservation for other backward classes would be 25%. Thereafter, in October and November 1960, the Mysore Public Service Commission interviewed the candidates and sent a list to the Government of 80 candidates selected by them. On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of the Mysore Public Works Engineering Department Service. On the same date, in exercise of the powers conferred by the proviso to article 309 the Governor made the rules called the Mysore Public Service Engineering Department Service (Recruitment) Rules 1960. These Rules prescribed in respect of each category of specified posts the methods of recruitment, whereby only 40% of the appointment could be made after an interview and an oral test and also prescribed the minimum qualifications, age limits, etc. for Assistant Engineers which were somewhat different from those prescribed in the earlier Notifications of the Mysore Public Service Commission relating to the recruitment of 80 Assistant Engineers. On October 23, 1961 the Governor made certain amendments to the 1960 Rules the effect of which was to make those rules retrospective with effect from March 1, 1958 and also, to waive the requirements of the rules relating to the percentages for direct recruitment, educational qualifications, and age requirements, etc. in respect of direct recruitment of Assistant Engineers for the first time. Thereafter, on October 31, 1961, the Governor appointed 88 candidates as probationary Assistant Engineers. These appointments were challenged in 16 Writ Petitions filed in the High Court on the grounds inter alia, that (1) in view of Rule 3 of the Mysore State Civil Services 683 (General Recruitment) Rules, 1957, which provided that the method of recruitment and qualifications for each State Civil Service shall be set forth in the rules of recruitment of such service specially made in that behalf, the Government could not recruit the Assistant Engineers without framing the necessary rules; (ii) the State Government could not make rules retrospectively unless it had express powers to do so under the relevant statute; (iii) the appointments which were made on October 31, 1951 had to be made in accordance with the 1960 Rules but in fact were not so made; (iv) some of the appointments were made mala fide. These writ petitions were allowed by the High Court. On appeal to this Court, HELD : The appointments of the 88 Assistant Engineers were validly made in the exercise of the executive power of the State under article 162 of the Constitution. It is not obligatory under the proviso to article 309 to make rules of recruitment etc. before a service can be constituted or a post created or filled. The State Government has executive power in relation to all matters with respect to which the Legislature of the State hag power to make laws. It follows from this that the State Government will have executive power in respect of List 11 Entry 41 "State Public Services". [686 C E] In this background, Rule 3 of the General Recruitment Rules of 1957 cannot be interpreted as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf. [686 G] Ram Jawaya Kapur vs State of Punjab, and T. Cajee vs K. Jormanic Siem, ; , referred to. Even if it were to be assumed that the rules purported to be made by the State Government had no retrospective validity the position would be that there were no statutory rules governing the appointment of the 88 Assistant Engineers; but that could not prevent the State Government from making valid appointments in the exercise of its executive powers. [694 P] It cannot be said that the appointments made in October 1960 had to be under statutory rules made on December 3, 1960. It took about two years for the Public Service Commission to publish notifications, interview candidates and recommend names for appoinment. The whole procedure having been followed, it could not have been the intention of the Government, while framing the rules, to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing the candidates in October 1960. [694 G 695 B] On the facts, no mala fide or collateral object had been proved. The Mysore Public Service Commission (Function) Rules, 1957 are not statutory rules made under article 309. First. the rules do not expressly say so; and secondly, they deal with the functions of the Commission rather than with the rules regarding recruitment to services or posts. [685 E] </s>

<s>[INST] Summarize the judgementAppeal No. 1533 of 1971. Appeal by special leave from the judgment dated September 18, 1971 of the S.D.O./Arbitrator, Muzaffarnagar in Election Petition No. 140 of 1970. AND Civil Appeals Nos. 1797 and 1798 of 1971. , Appeals by spe cial leave from the judgments dated September 18, 1971 of the District Magistrate/Registrar, Co operative Societies, Saharanpur in Appeals Nos. 6 and 8 of 1971 under section 98 (i) (h) U.P. Co Societies Act. AND Special Leave Petition (Civil) No. 3254 of 1971 From the judgment dated September 16, 1971 of the Registrar, Co operative Societies/District Magistrate Saharanpur in Appeal 'No. 5 of 1971 under section 98 (i) (h) Co operative Societies Act.) J. P. Goyal and V. C. Parashar, for the appellants (in C.As. 1533 and 1797 of 1971) and the petitioners (in S.L.P. No. 3268 of 1971) R. K. Garg, S.C. Agrawal and R. K. Jain, for the appellants ,(in C.A. No. 1798 of 1971) and the Petitioners (in S.L.P. No. 3254 of 1971) C. B. Agarwal and P. P. Juneja, for respondents Nos. 7, 8 and 1 to 13 (in C.A. 1533 of 1971) 151 O. P. Rana, for respondents Nos. 7 and 12 (in C.A. No. 1797 of 1972) and respondent No. 7 (in C.A. No. 1798 of 1971). M. C. Setalvad, R. K. Garg, section C. Agarwal and R. K. Jain, for the intervener. The Judgment of the Court was delivered by Ray, J. These three appeals are by special leave. Civil Appeal No. 1533(N) of 1971 is by special leave against the judgment dated 18 September, 1971 of the Arbitrator setting aside the election of the Management Committee of the Co operative Cane Development Union, Shamli in an election petition filed under rule 229(2) of the Co operative Societies Rules, 1967 framed under the Uttar Pradesh Co operative Societies Act, 1965. Civil Appeal No. 1797 of 1971 is by special leave against the order of the District Magistrate and Registrar, Co operative Societies Sharanpur dismissing an appeal filed under section 98(i)(h) of the U.P. Cooperative Societies Act, 1965 against an order of the Arbitrator under section 70 and 71 of the U.P. Co operative Societies Act. 1965 setting aside the election of the Sahkari Ganna Vikas Samiti Ltd., Iqbalpur, District Saharanpur. Civil Appeal No. 1798 of 1971 is against the order and judgment dated 16 September, 1971 of the District Magistrate, Saharanpur dismissing an appeal under section 98(i)(h) of the U.P. Co operative Societies Act, 1965 against the order of the Arbitrator under sections 70 and 71 of the U.P. Co operative Societies Act, 1965 setting aside the election of ,the Sahkari Ganna Vikas Samiti Ltd., Lhaksar, District Saharanpur. Special Leave Petition (Civil) No. 3254 of 1971 is for leave to appeal against the order of the Registrar, Co operative Societies in appeal under section 98(i)(h) against the order of the Arbitrator under sections 70 and 71 of the U.P. Co operative Societies Act, 1965 setting aside the election of Sahkari Ganna Vikas Samiti, Sarsawa. Special Leave Petition (Civil) No. 3268 of 1971 is for leave to appeal against the order of the District Authority, Bulandsbahr setting aside the election of the Committee of Management of the Co operative Cane Development Union Ltd. on an application under rule 229 of the U.P. Co operative Societies Rules, 1968. These matters raise a common question. These Co operative 'Societies held their annual general meeting under the provisions of section 32 of the Uttar Pradesh Co operative Societies Act, 1965 (hereinafter called the Act). At the general meetings the members of the Committee of Management of the Society were elected by members of the Society. The, Registrar of the U.P. Co operative Societies issued a circular dated 5 November, 1969 interpreting rule 409 of the U.P. Co operative Societies Rules, 1968 (hereinafter called the Rules) and laid down the principle that all the members of the general body "of the Co operative 152 Society would" exercise their right of vote in filling all the seats of elected Directors. " The question in the present appeals is whether the Registrar had power to issue the circular interpreting rule 409 and secondly whether that interpretation is correct in terms of the Act and the Rules. The Act deals with Co operative Societies and inter alia their members and their Committee of Management. The relevant sections for the purpose of present appeals and special leave petitions are sections 20, 29 and 32 of the Act. Section 20 of the Act speaks of vote of members. Under that section, a member of a Co operative Society shall notwithstanding the quantum of his interest in the capital of the Society have one vote in the affairs or the Society. There are four provisos to section 20. Proviso (a) deals with nominal or associate members who have no right of vote. Proviso (b) deals with a co operative society, the State Warehousing Corporation or a body corporate being a member of such society in which case each delegate of such co operative society, State Warehousing Corporation or body corporate shall have one vote. Proviso (c) deals with the State Government or the Central Government being a member of such society in which case a nominee of the State Government or the Central Government shall have one vote. Proviso (d) deals with a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote. Section 29 of the Act deals with the Committee of Manage ment. The management of every co operative society shall vest in a committee of management. The term of the election members of the committee of management shall be such as may be provided in the rules and the bye laws of the society. After the expiry of the term the co operative society shall at the annual general meeting elect members for the committee of management as provided in section 32(i)(b) of the Act. If a society fails to elect members for the committee of management the Registrar shall call upon the society by order in writing to elect such members within three months from the date of the communication of the order. If the society still fails to elect the members for the committee of management, the Registrar may himself nominate such persons as under the rules and the bye laws are qualified for being elected as members of the committee of management. Within six months from the date of nomination made by the Registrar, the Registrar shall call a general meeting for electing members of the committee of management. Section 32 of the Act speaks of annual general meeting which shall be held once in 'a co operative year. A co operative year means the year commencing the first day of July and ending on the 30th June of next following. One of the purposes of the annual 153 general meeting is election of the members of the committee of management in accordance with the provisions of the rules and of the bye laws of the society. Rule 409 is as follows "For the purposes of election to the membership of the committee of management a co operative society may, with the previous sanction of the Registrar (a) divide its membership into different groups on territorial or any other rational basis, and (b) also specify the number or proportion of the member of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee or management." In order to appreciate as to how rule 409 comes up for consideration in the present case it is necessary to refer to facts in Civil Appeal No. 1533 (N) of 1971 as a typical case. The Shamli Cane Development Union Ltd., Shammli, U.P. was registered under the . It was deemed to be registered under the Act. The society had its bye laws with regard to the formation of the committee of management and its election including the election of the Chairman and the Vice Chairman. The bye laws provided for a committee of management consisting of 14 members. The committee of management elects a Chairman and a Vice Chairman. The delegates constituting the general body of the society are divided into 14 constituencies. Each constituency elects one Director. The delegates of the members of the society in a constituency elect a member of each single member constituency. The 14 members of the committee are elected on that basis whereby each delegate of each constituency exercises one vote for electing a member of that constituency. The Secretary of the society fixed 13 October, 1970 as the date for filing the nomination for the office of the committee of management. 17 October, 1970 was the date for scrutiny of nomination papers. 19 October, 1970 was the date for withdrawal of nomination papers. 28 October, 1970 was the date of poll. By a letter dated 14 October, 1970 the Registrar, Cooperative Societies directed that "the election of the members of the managing committee shall be done by all the representatives of the area of the society and not by the representatives of the related constituencies alone. This means that every representative L864Sup. CT/72 154 shall have as many votes as the members are to be elected". In short, the Registrar 's interpretation of rule 409 as well as the letter stated that each delegate would vote for 14 members of the committee of management and thus each delegate would exercise 14 votes. The rival contentions which fall for determination are whether the right of vote for election of a member of the committee of management is confined to the delegates of the members of that particular constituency or whether a delegate would have the right to vote for all the constituencies constituting the committee of management. As to the power of the Registrar to interpret rule 409 it win appear that the rule does not confer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the committee of management. On the contrary, under rule 409 the Co operative Society may with the previous sanction of the Registrar (i) divide its membership into different groups on territorial or any other rational basis and (ii) also specify the number or proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. Therefore, under rule 409 a co operative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the committee. The rule also empowers the society to apportion the membership of the committee of management amongst different groups into which the membership is divided. The number or proportion of members of the com mittee of management will have to be apportioned in such a manner that the different areas or interests into which the membership of the society are divided may obtain suitable representation on the committee of management. The entire purpose of division of membership into different groups and specifying suitable representation of such group on the committee of management is to emphasise the, right of the particular group to send its representative to the committee. To illustrate if a society is divided into 14 separate groups on a territorial. basis and one member of the committee of management is allotted to each group and if delegates of one group have the right to cast 14 votes two consequences will follow. First, the right of choosing a representative of the constituency will be not confined to that constituency but will be enlarged to outsiders in other constituencies. Secondly, a member of the committee from one constituency may be elected by a majority of votes from delegates of other constituencies. If delegates residing outside a territorial constituency 155 take part at the election for member of a committee from territorial constituency within which he is not a resident it will not only amount to enlarging the right of representation beyond ones territorial basis but also deny the delegates within the constituency the right of electing their own representative. It was said on behalf of the appellants that section 20 of the Act speaks of a member of the co operative society having one vote in the affairs of the society with the result that each member is entitled to exercise as many votes as the members of the committee of management. Accent was placed on the words 'affairs of the society ' and it was said that the constitution of the committee of management was one of the principal affairs of the society and therefore each member would entitled to cast as many votes as the strength of the committee of management. The fallacy lies in overlooking the significant words in section 20 of the Act that a member shall have one vote. It may also be noticed that if each member exercises by way of illustration 14 votes in regard to 14 members of the committee each member shall be "exercising 14 votes in the affairs of the society. Under rule 409 the principal matters to be kept in the fore front are these. First, the society will divide the constituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative requirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a constituency the persons falling within the cons tituency will satisfy that test. Secondly, the society will specify the proportion of members of the committee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interests will obtain representation. If membership is on territorial basis, the different areas will get representation according to the interest of such territories. Again, if occupational or vocational or professional tests are created for dividing groups such interests will have to be given suitable representation Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffers from the vice of giving the members the right of 'casting vote in constituencies to which they do not belong. This strikes at the basic root of right of representation. This also reads as under the principle of one member one vote which is made into a rule of law in the Act. [155 E G] The words 'affairs of the society ' cannot be equated with the Constituencies to give each member a right to vote for each constituency. That would defeat the purpose of section 20 and rule 409. The basic idea of a representative for each constituency 156 depends on the mandate of the respective constituency and not of other constituencies. That is why section 20 of the Act speaks of, one member having one vote irrespective of shareholding. It means equality of votes, of members. The constitution of the committee of management is indisput ably one of the affairs of the society. If each member exercises franchise with respect to the representation from his constituency he is not in any manner prevented from having a right to partake in the affairs of the society through a member elected from the constituency. Some reliance was placed by counsel for the appellants on rule 105 in support of the contention that every member would have one vote for each member of the committee of management. Rule 105 occurs in Chapter VII relating to meetings and speaks of matters before a committee being decided by a majority of votes of the members present. That rule obviously has no reference to election but only to passing of resolution by majority at meetings. It is obvious that members of the committee of management will have the right to vote at all matters at the meeting and matters will be decided by a majority of votes. The impeached circular of the Registrar is illegal and unwarranted Registrar has no power to interpret rule 409. The Registrar has equally no power to express view with regard to conduct of the election and regulate the voting rights by giving the members more than one vote. The society is to frame rules for elections. Rules require the sanction of the Registrar. The rules and the bye laws cannot be in derogation of the statute and statutory rules. At an election of members of the committee of management one member will have only One vote for the constituency to which he belongs. The result is that the elections which were held following the circular of the Registrar are bad. For these reasons the three appeals fail and are dismissed. The two special leave petitions are also dismissed. Parties will pay and bear their own costs. G.C. Appeals dismissed. [/INST]After negotiations in 1953 with the concerned Department of the Government of India and the Reserve Bank, a Company, incorporated in U.K. advanced large sums by way of loans to its subsidiary in India, namely the assessee, for subscribing for shares in some Indian Companies. The correspondence showed that the U.K. Company had the right to acquire at any time the shares at par, in satisfaction of the loans. In 1961, the assessee transferred the shares when called upon by the U.K. Company to do so. The Income tax Officer applied section 52 of the Income tax Act, 1961, and assessed the assessee to capital gains tax, which was not in existence in 1953 but was Reintroduced in the Finance Bill of 1959. The Income tax Officer held that the object of the transfer was to avoid or reduce the assessee 's liability to capital gains tax. The Appellate Assistant Commissioner however, held that the assessee was not liable to capital gains tax, and the Appellate Tribunal, after an elaborate discussion of the correspondence, confirmed the order, holding that the transfer was not effected with that object. The Department applied to the Tribunal to refer the questions, (i) whether certain documents were not properly construed, (ii) whether the Tribunal ignored evidence on essential matters, (iii) whether the finding of the Tribunal was perverse, and (iv) whether section 52 was not applicable, as arising out the Tribunal 's order. The Tribunal rejected the application. The Department then moved the High Court and the High Court directed the Tribunal to state a case in relation to the four questions, but the High Court did not give any reasons for doing so. Allowing the appeal to this Court, HELD : The High Court can exercise its jurisdiction in the matter of reference, (a) when the point for determination is a pure question of law, such as, the construction of a statute or a document of title; (b) when the point for determination is a mixed question of law and fact (While the findings of the Tribunal on the facts are final, its decision as to the legal effect of the findings is a question of law. Where, however, the finding is one of fact, the fact that it is an inference from other basic facts will not alter its character as one of fact); and (c) when a finding on a question of fact is perverse. [147C E] The necessary ingredients of section 52 are : (i) there should be a direct or indirect connection between the person who acquires a capital asset and the assesee; (ii) the income tax officer should have reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee to capital gains; and (iii) if the first two conditions 139 are satisfied then the full value of consideration for the transfer may be taken to be the fair market value of the capital asset on the date of the transfer. The intention with which a particular transfer is made and the object which is to be achieved by such transfer are essentially questions of fact, the conclusion relating to which, are to be arrived at on a consideration of relevant material; that is, before the income tax officer can have any reason to believe that a transfer was effected with the object mentioned in the section facts, must exist showing that the object was to avoid or reduce the liability to capital gains. [141 H; 142 A D] In the present ease, the orders of the Tribunal show that there was no dispute as to the construction of any expression in any letter or document, that no relevant evidence was overlooked, that the inference was drawn from other facts and, that no question was raised on the construction of section 52. When the Tribunal found, as a fact, that before there was any proposal to reimpose the capital gains tax which had remained abolished for some time, the scheme between the assessee and the U.K. Company bad been fully evolved, the applicability of section 52 could not be attracted. The findings of the Tribunal that the object mentioned in the section could not be held to be established from the mere absence of a formal agreement between the assessee and the U.K. Company, is not perverse, but is supported by evidence and is eminently reasonable. in view of the clear, cogent and precise findings and conclusions of the Tribunal, the High Court, should at least have recorded a speaking order showing how the questions of law of the nature sought to be referred arose from the order of the Tribunal. [146 B D; 141 A C, F; 148 C.D] Shree Meenakshi Mills Ltd. vs C.I.T., Madras, , followed. </s>

<s>[INST] Summarize the judgementAppeal No.350 of 1957. Appeal by special leave from the judgment and order dated August 6, 1956, of the Calcutta High Court on a notice of motion in Appeal No. 152 of 1955. N. C. Chatterjee and P. K. Mukherjee, for the appellant. B. Sen and P. K. Ghosh (for P. K. Bose), for respondent No. 1. 1958. February 14. The Judgment of the Court was delivered by VENICATARAMA AIYAR J. This is an appeal against an order of the High Court of Calcutta dated August 6, 1956, rejecting the application of the appellant to be brought on record as appellant in appeal No. 152 of 1955 pending before it. The second respondent, Sudhir Kumar Mitter, was the owner of two houses, No. 86/1, Cornwallis Street and No. 7 C, Kirti Mitter Lane, Calcutta. On May 19, 1934, he executed a mortgage for Rs. 3,000 over the said houses in favour of the first respondent, Sm. Nirmala Sundari Dassi. She instituted Suit No. 158 of 1935 on this mortgage, and obtained a pre liminary decree on March 8, 1935. The matter then came before the Registrar for taking of accounts, and by his report dated July 23, 1935 he found that a sum 1289 of Rs. 3,914 6 6 was due to her, and on that, a final decree was passed on April 20, 1936. Under r. 27 of ch. 16 of the Original Side Rules of the Calcutta High Court, a person in whose favour a decree is passed has to apply for drawing up of the decree within four days from the date thereof. The rule then provides that " if such application for drawing up a decree or order is not made within the time aforesaid, the decree or order,shall not be drawn up except under order of Court or a Judge to be obtained, unless otherwise ordered, by a petition ex parte ". The importance of this provision is that until a decree is drawn up as mentioned therein, no certified copy thereof would be issued to the party and without such a certified copy, no execution proceedings could be taken. The first respondent who had acted with such alacrity and speed in putting her mortgage in suit and obtaining a decree, took no steps whatsoever to have the decree drawn up, for nearly 18 years. On May 12, 1952, the second respondent sold both the houses to the appellant herein for a sum of Rs. 60,000 which was, it is stated, utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken. The deed of sale recites that the properties were sold free of all encumbrances. The first respondent who had so far taken no steps to have the decree drawn up now bestirred herself, and on February 17, 1954 obtained an ex parte order under r. 27 aforesaid, granting her leave to draw up and complete the decree. That having been done pursuant to the order, she filed on April 29, 1954 the final decree, and commenced proceedings for sale of the mortgaged properties. Coming to know of this, the second respondent appeared before the Registrar, and raised the objection that the execution of the decree was barred by limitation. The Registrar felt some doubt in the matter, and made a special report under ch. 26, r. 50 seeking the opinion of the Court on the question of limitation, and the first respondent was also directed to take out a notice of motion for directions. The matter then came before P. B. Mukharji J. and after hearing 1290 counsel for both the respondents, he held that the execution of the decree was not barred. Vide judgment reported in Nirmala Sundari vs Sudhir Kumar (1). Against this judgment, the second respondent preferred Appeal No. 152 of 1955, and that is still pending. We now come to the application, out of which the present appeal arises. On July 25, 1956 the appellant applied to be brought on record as appellant in Appeal No. 152 of 1955. The allegations in support of the petition were that she had purchased the properties from the second respondent on May 12, 1952 free of all encumbrances, that the execution proceedings started by the first respondent were not maintainable as the decree had become time barred, that the second respondent, Sudhir Kumar Mitter, had been conducting proceedings in opposition to the execution sale only at her instance and for her benefit, that he had filed Appeal No. 152 of 1955 also oil her behalf, that latterly he had entered into a collusive arrangement with the first respondent with a view to defeat her rights, and that therefore it was necessary that she should be allowed to come on record as appellant so that she might protect her interests. The prayer in the petition was that she be substituted in the place of the second respondent or in the alternative, be brought on record as additional appellant. The application was strenuously opposed by both the respondents. They stated that they had entered into an arrangement settling the amount due to the first respondent at Rs. 17,670, that that settlement was fair and bona fide and binding on the appellant, and that further her application was not maintainable. This application was heard by Chakravarti C. J. and Lahiri J. and by their order dated August 6, 1956, they dismissed it. The appellant then applied under article 133 for leave to appeal to this Court, and in rejecting that application, the learned Chief Justice observed that the original application was pressed only under 0. 22, r. 10 of the Civil Procedure Code and it was dismissed, as it was conceded that the applicant, (1) A.I.R. 1955 Cal. 484. 1291 not being a person who had obtained a transfer pending appeal, was not entitled to apply on the terms of that rule, that the prayer in the alternative that the applicant might be brought on record without being substituted under 0. 22, r. 10 which merited favourable consideration bad not been mentioned at the previous hearing, and that no certificate could be granted under article 133 with a view to that point being raised in appeal, as the order sought to be appealed against was not a final order. The appellant thereafter obtained special leave to appeal under article 136 of the Constitution, and that is how the appeal comes before us. It is contended OD behalf of the appellant that her application is maintainable under 0. 22, r. 10 of the Civil Procedure Code, because Suit No. 158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952. The decision in Lakshan Chunder Dey vs Sm. Nikunjamani Dassi (1) is relied on, in support of this position. But it is contended for the first respondent that even if Suit No. 158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original court during the pendency of the suit. Nor could the application made to the appellate Court be sustained under 0. 22, r. 10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency. This contention appears to be well founded ; but that, however, does not conclude the matter. In our opinion, the application filed by the appellant falls within section 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami vs Lakshmi Narasimha (2) that an appeal is a proceeding for the (1) 164 (2) Mad. 510. 1292 purpose of this section, and that further the expression " claiming under" is wide enough to include cases of devolution and assignment mentioned in 0. 22, r. 10. This decision was quoted with approval by this Court in Jugalkishore Saraf vs Raw Cotton Co., Ltd. (1), wherein it was hold that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under section 146 of the Civil Procedure Code as a person claiming under the decree holder, even though an application for execution by him would not lie under 0. 21, r. 16, and it was further observed that the words "save as otherwise provided " only barred proceedings, which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought oil record under 0. 22, r. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji J. It is next contended that section 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judoment of P. B. Mukharji J. she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe section 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar vs Oovinddoss Krishnadass (2) that the assignee of a part of a (1) [1955] i S.C.R. 1369. (2) Mad. 1293 decree is entitled to continue an execution application filed by the transferor decree holder. Vide also Moidin Kutty vs Doraiswami (1). The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be main. tainable under section 146. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs. 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P. B. Mukharji J. has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs. 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs. 6,000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs. 17,670 was made up. It will be seen therefrom that a sum of Rs. 7,200 is claimed for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs. 5,000 is included as for costs incurred by the mortgagee in suits other than (1) I.L.R. 1294 Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs. 1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji J. and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me ? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with Conflicting interest. But, in any event, the Court can, if necessary, take action suo motu either under 0. 1, r. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews. Oates vs Mooney (1), and Vanjiappa Goundan vs Annamalai Chettiar (2 ). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal. Appeal allowed. [/INST]The second respondent sold the properties to the appellant in ,952 and the deed of sale recited that the properties were sold free of all encumbrances. The first respondent who had obtained a mortgage decree in respect of the properties in 1935 did not take any steps to have the decree drawn up as required under the Original Side Rules of the Calcutta High Court until 1954, when she commenced proceedings for sale of the mortgaged properties. The second respondent raised the objection that the execution of the decree was barred by limitation but that was overruled by a single judge of the High Court and an appeal against that order was preferred by the second respondent. Apprehending that the second respondent might enter into a collusive arrangement with the first respondent with a view to defeat her rights, the appellant made an application in the High Court under 0. 22, r. 10 of the Code of Civil Procedure praying that she might be substituted in the place of the second respondent, or in the alternative, be brought on record as additional appellant. The High Court having dismissed the application, the appellant brought the present appeal: Held, that the application could not be sustained under 0. 22, r.10, of the Code of Civil Procedure because (i) assuming that 1288 the suit was considered as having been pending until the decree was drawn up in 954 no application was made to the Court where the suit was pending as provided in 0. 22, r. 10, and (ii) the application made to the appellate Court was also not within 0. 22, r. 10, as the transfer in question was made prior to the filing of the appeal and not during its pendency. The application, however, falls within section I46 of the Code of Civil Procedure and the appellant is entitled to be brought on record since an appeal is a proceeding within the meaning of that section and the right to file an appeal carries with it the right to continue an appeal which had been filed by the person under whom the appellant claims. Jugalkishore Sayaf vs Raw Cotton Ltd., [1955] I S.C.R. 1369, Sitharamaswami vs Lakshmi Narasimha, Mad. 51O and Muthia Chettiar vs Govinddoss Kyishnadoss, Mad. gig, relied on. </s>

<s>[INST] Summarize the judgementAppeal No. 255 of 1961. Appeal from the judgment and order dated March 21, 1960, of the Mysore High Court in Writ Petition No. 147 of 1958. B. J. Kolah, J. B. DadachanJi, O. C. Mathur and Ravinder Narain, for the appellants. 779 C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and P. D. Menon, for respondents. August. KAPUR, J This is an appeal against the judgment and order of the High Court of Mysore in Writ Petition No. 147 of 1958 dismissing the appellant 's petition under articles 226 and 227 of the Constitution for quashing the order of assessment for the period of assessment 1955 56 i.e, from April 1, 1955, to March 31, 1956. In this appeal because of the Validating Act (VII of 1956) the appellants did not challenge their liability for the period April 1, 1955, to September 6, 1955. The facts necessary for the decision of this appeal are these : Appellant No. 1 The Cement Marketing Co. Ltd are the Sales Managers of the second appellant The Associated Cement Co. Ltd. appointed under an agreement dated April 21, 1954. The High Court has described the first appellant to be the Distributors of the second apppellant. The second appellant is a manufacturer of cement and at the material time it had over a dozen factories in different parts of India, none of which was in the State of Mysore. The head office of first appellant is at Bombay and it had then a branch office at Bangalore in the State of Mysore. The first appellant was registered as a dealer under the Mysore Sales Tax Act 1948, hereinafter called the "Mysore Act". At all material times cement was and still is a controlled article. Whether the sale was to a Government Department i.e. to the Director General of Supplies & Disposal, Government of India, New Delhi, or to a person authorised by the said Officer or to the ' public it was effected on authorisations given to the buyers by appropriate Government authorities and 780 produced by them in the office of the first appellant. Both in regard to purchases by the public and the Government the Modus operandi was more or less identical. It was this Every one wishing to buy cement had to get an authorisation in a standard form which authorised the first appellant to sell cement in quantities mentioned, therein and the cement had to be supplied from the factory therein mentioned. That document was in the following form which actually ralates to a sale to a Government contractor. "Government of India Ministrary of Commerce & Industry. Office of the Regional Honorary Cement Adviser 4/12 Race Course Road, Coimbatore. Central Quota. Dated 8 10 1955. Authorisation No. RA/CT/28/CMI/1 7 2 CQ. (CENTELEC) Period IV/55 The Cement Marketing, Name of Suppliers Co. of India P. Box No.613, Sugar Company Bulding Bangalore 2. You are authorised to sell cement in quantity mentioned below under this authorisation. The sale will be a direct deal between yourself and 781 the purchaser. The Government undertakes no responsibility of any nature whatsoever: Name and Name of the Quan Name of Rly. Re address of the person factory or cement is to in whose companybe booked. favour required to authorisation supply is issued. cement. 1 2 3 4 5 M/s. G. section Mudhukkarai300 Bangalore Duggal & Co Shababadtons Ltd Engineers & Contractors, Jalhalli P.O. Bangalore. No. J/1 17/115 date 29 9 55 from the above indentors For manufacture of the tiles for the Bharat Electronics Ltd. Supply recommended by the Commander Works Engineers(B.E.I.P.), Jalahalli. Full details of the purpose for which and the place at which cement will actually be consumed; Priority, Defence work. C.C. Ramanath, Reg, Hon. Cement Advisor (Coimbatore) Copy to 1. The indentor. The Dy. Development Officer, Govt. of India, Ministry of Commerce & Industry, Development Wing,(Chemicals 1, Mineral Industries) Shahjehan Road, Now Delhi. The Controller of Civil Supplies in My sore Bangalore for information". 782 This authorisation was subject to the following conditions: It was to be utilised within 15 days; the cement released could be used only for the purpose for which it was given; the authorisation was not transferable; the issuing authority could, if necessary, revoke the authorisation at any time and even the orders booked under the authorisation could be cancelled. The purchaser or the indentor had then to place an order with the first appellant as Sales Managers of the second appellant stating the requirement, where the goods were to be sent and how they were to be sent. The seller entered into a contract with the first appellant. This contract is in a standard form and gives conditions of sale. Thereupon the first appellant instructed its Bombay office to despatch the cement in accordance with the instructions of the buyer and the authorisation. In this letter they had to mention the number of the authorisation and the person who had issued it and also to whom the goods were to be sent and how and certain other details which are not necessary for the purposes of this appeal were also to be given. Each instruction indicates that it was issued for and on behalf of appellant No. 2 by appellant No. 1 as its Sales Managers. A copy of the letter of instruction was sent to the factory from where the goods were to be despatched and the particulars of the authorisation had to be mentioned therein. Thereafter the first appellant sent an advice to 783 the purchaser enclosing therewith the Railway Receipt for the goods and this advice also mentioned the goods were being sent. Both the contract of sale and the advice above mentioned stated that the goods were being despatched at the buyer 's risk from the time the delivery was made by the factory to the carriers and the railway receipt was obtained for the goods. In the present case all the goods were sent, as indeed they had to be sent, against the authorisations from the various factories belonging to the second appellant which at the relevant time were all situate outside the State of Mysore and were received in the State of Mysore by the various purchasers. The position of the first appellant is as was accepted by the Sales tax Officer in his order dated March 31, 1958, that of Sales Managers of the second appellant but in regard to the nature of the transactions the Sales tax Officer found: " Though the property in the goods pass to the dealers and consumers outside the State immediately the goods are handed over to the carriers outside the state and railway receipt is taken out since the goods have actually been delivered In Mysore State as a direct result of such sale for purposes of consumption in the State, sale is deemed to have taken place in Mysore State". and again he said: "Thus the sales of cement manufactured by A.C.C. Factories situated outside Mysore .State effected by the dealers M/s. Cement Marketing Company of India Ltd. Bangalore, to dealers and customers in Mysore State amounts to intrastate sales and therefore liable to Mysore Sales Tax Act 48". 784 In its judgment the High Court took into consideration the fact that the first appellant had a branch office at Bangalore within the State of Mysore and that the public placed their orders with the first appellant for supplies of cement against permits granted to them; that the first appellant, who after accepting the offer for the supplies of cement, collected the price from the intending purchasers and then directed one of the factories of the second appellant to supply cement to the purchasers and actual delivery to the purchaser was within the State) of Mysore and therefore the contention that cement was loaded outside the State of Mysore and despatched to the purchaser did not not convert sales into inter State sales but were intra state sales. It appears that the true nature of the transaction was not correctly considered by the High Court, The modus operandi above mentioned shows that before an intending purchaser could obtain cement he had to get what is called an authorisation from a Government authority which nominated the factory from which the intending purchaser had to get his supplies of cement. That authorisation with an order had to be given to the first appellant; and after a contract in the standard form was entered into the first appellant sent the order to the factory named in the authorisation and that factory then supplied the requisite goods to the purchaser. The factory from where the cement was to be supplied was not in the hands or at the option of the first appellant, but was entirely a matter for the Government authority to decide, so that the cement which was supplied from a particular factory was supplied not at the choice of the first appellant but pursuant to the authorisation. It was contended that the sales which took place in the present case in which the movement of 785 goods was from one State to another as a result of a covenant or incident of the contract of sale fell within article 286(2) of the Constitution and therefore the imposition 'of Sales tax on such sales was unconstitutional. The Article applicable at the relevant time i.e., before its amendment was as follows: 286 (1) "No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place. (a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India. Explanation . . . . . (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 or commerce: Provided. . . . . . " The Article had since been repealed and another substituted in its place by the Constitution (Sixth Amendment) Act but the sales in question were prior to the amendment. In the present case the contract itself involved the movement of goods from the factory to the purchaser i. e. across the broder from one State to another because the factories were outside the State of Mysore and therefore transactions were 786 clearly transactions of sale of goods in the course of inter State trade or commerce. Taking the nature of the transaction and preliminaries which are necessary for the sale or purchase of cement it cannot be said that the sale itself did not occasion the movement of goods from one State to another. The essential features of the contracts proved in the present case are analogous to those in M/s. Mohan Lai Hargovind vs The State of Madhya Pradesh.(1) In that case the assessees were a firm carrying on business of making and selling birds in Madhya Pradesh. In the course of their business they imported finished tobacco from dealers in Bombay State, rolled it into biris and exported the biris to various other States. Both the exporters of tobacco from Bombay State who supplied the assessees and the assessees were registered dealers under the C. P. & Berar Sales Tax Act., 1947. It was held that the asessees imported the finished tobacco into Madhya Pradesh from persons who were carrying on in the State of Bombay business of processing tobacco and selling the goods and there was, as a result of these transactions movement of goods from the State of Bombay to the State of Madhya Pradesh and therefore the transactions involved movement of goods across the State border and they were not liable to be taxed by virtue of article 286 (2) of the Constitution. In The State of Pravancore Cochin & Others vs The Bombay Co Ltd. (1) which was a case under article 286 (1) (b) i. e. sale and purchase in the course of export trade, Patanjali Sastri, C. J., observed: "A sale by export thus 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 (1) (2) (1952) section C. R. III2. 787 country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export from parts of a single transactions. At p. 1120 the learned Chief Justice again observed: "We accordingly hold that whatever else may or may not fall within article 286 (1) sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals". Thus a sale to fall within article 286 (1) (b) has to be a sale which occasions the export. Again in the, State of Travancore Cochin & Other8 vs Shammugha Vilas Cashew Nut Factory & Other8 (1) the words "in the course of" were interpreted to mean a sale taking place not only during the activities directed to the end of exportation of the goods out of the contury but also as a part of or connected with such activities. At p. 63 the learned Chief Justice explained the words "integrated activities" as follows: "The phrase "integrated activities" was used in the previous decision 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 affectuated, and the sale and the resultant export form parts of a single transaction '. It is in that sense that the two activities the sale and the export were said to be integrated". In Endu puri Narasiham & Son vs The State of Orissa, it was held in the case of sales covered (1) ; (2) ; 788 by article 286 (1) (b) that only Bale or purchase 'of goods which occasions the export or import of the goods out of or into the territory of India were exempt from the imposition of tax on the sale or purchase of goods and in regard to prohibition against imposition of tax on inter State sales the test, it was said, was that in order that a sale or purchase might be inter State it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. The following observatins from the Bengal Immunity Co. Ltd. vs The State of Bihar (1) were quoted with approval in support of the position: "A sale could be said to be in the course of inter State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter State trade". Thus the tests which have been laid down to bring a sale within inter State sales are that the transaction must involve movement of goods across the border (Mohanlal Hargovind 's case (2) ); transactions are inter State in which as a direct result of such sales the goods are actually delivered for consumption in another State; M/s Ram Narain It Ssns V. Assistant Commissioner of Sales tax (3) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co ' case (1). in the case of sales in the course of export or import the test laid down was a series of integrated activitiesm commencing from an agreement of sale and ending with the delivery of goods to a common (1) , 784 5 (2) (1965) 2 S.G R. 509. (3) ; , 504. 789 carrier for export by land or by sea ; The Bombay Co. Ltd, case (1). "In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar langauage. This Court again accepted these tests in Endupuri Narasim ham 's case (2). In a. 3 of the (Act 74 of 1956), the legislature has accepted the principal governing inter State sales as laid down in mohan Hargovind 's case (3). The principles for determining when a sale or purchase of goods takes place in the course of inter state sale or commerce outside the state are : "S.3 A sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or pur chase (a) occasions the movement of goods from one State to another ; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another". In Tata Iron & Steel Co. Ltd, Bombay vs S.R. Sarkar & Another (4) Shah, J., in explaining what sales are covered by el. (a) of s.3 above said : "Cl. (a) of a. 3 covers sales, other than those included in Cl. (b), in which the movement of goods from one state to another is the result of a convenant or incident of the contract of sale. and property in the goods passes in either State . " As stated above under the contracts of sale in the present case there was transport of goods from (1) (3) (1955) 2 S.G.R. 509. (2) ; (4) ; ,391, 790 outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border. Thus if the goods moved under the contract of sale, it cannot be said that they were intrastate sales. It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant. The factories were nominated by the Government by authorisations which formed the basis of the contract between the buyer and the seller. Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature of inter State sales and were exempt from Sales tax. In these circumstances the contracts of sale in the present case have been erroneously considered to be intrastate sales. The decision in Rohtas Industrieg Ltd. vs The State of Bihar (1) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co of India in the case above cited. (in an examination of the agreement between those two companies this court held that the rotation. ship which existed between the two was of seller and buyer and not of principal agent. In the present case the agreement is quite different. In the first clause of the agreement between the two appellants and the Patimia Cement Co. dated April 21, 1954, the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payment of the same and do all seta and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals. The sale price and the terms and conditions of sale were to be (1) (1961) 12 S.T.C. 615. 791 determined by the principals. The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by the principals. All the establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales. At the end of every mouth the Sales Managers were to submit to the principals accounts showing sales con tracts by it on behalf of each one of the principals. At the end of each financial year ending July 31 the Sales Managers had to make a. proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate. Clause to provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economicial transport of cement. These terms are quite different from those in the case of Rohtas Industries Ltd. and therefore that decision has no application to the facts of the present case. In the result, the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1, 1955, to September 6, 1955, was illegal and was not leviable for that period. The appeal is therefore allowed to that extent and the petition of the appellants succeeds but it will not effect the tax paid for the period abovementioned. In view of the partial success of appellants they will be entitled to half costs of the appeal. Appeal allowed in part. (1) (1961) 12 S.T.C. 615. [/INST]Section 14 of the Code of Criminal Procedure, as amended by Bombay Act 23 of 1951, empowered the State Government to appoint a qualified person as a special Magistrate and to confer upon him powers conferrable upon a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area. By a notification dated December 29, 1961, the Government appointed Mr. G to be a Special Judicial Magistrate for the area comprising Greater Bombay and Ratnagiri District and conferred upon him all the powers of a Presidency Magistrate in respect of the trial of the Deogad Gold Seizure case. The petitioners, who are accused in the case, moved the Supreme Court for a writ of certiorari for quashing the notification on the ground that the notification and the amended s.14 infringed article 14 of ' the Constitution. Held, that the amended section 14 does not offend article 14 and is valid. There is substantially no difference between the powers conferrable by the unmended and by the amended section 14. M. K. Gopalan vs State of Madhya Pradesh, [1955] 1 S.C.R. 168, relied on. Held, further that the notification constituting a Special Magistrate for the trial of the petitioners was not discriminatory. Amended section 14 contemplates both a case which is pending and one which may be instituted after the date of the constitution of the Special Magistrate. The constitution of a Special Magistrate does not amount directly or indirectly to a transfer of any 574 case. The fact that Mr. G may hold the trial at Bombay and not at Deogad while other similarly situated would be tried at Deogod may result in inconvenience to the petitioners but this could not sustain the plea of discrimination. The charge against the petitioners is in respect of conspiracy at Bombay, Deogad and other places and the petitioners could have been lawfully tried at Bombay. The notification constituted a Special Magistrate and conferred jurisdiction on him both over the place where the petitioners are alleged to have conspired and the place where the offences are alleged to have been actually committed. It did not amount to discrimination that from the judgment of the Special Magistrate an appeal would lie to the High Court while if the petitioners were tried by a Magistrate at Deogad, an appeal would lie to the Sessions judge and then a revision would lie to the High Court. The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case and not from any unequal dealing by the notification. </s>

<s>[INST] Summarize the judgementAppeals Nos. 484 and 485 of 1965. Appeals by special leave from the judgment and decree dated December 14, 1959 of the Madras High Court in Appeals Nos. 808 and 746 of 1954. S.T. Desai, P. C. Bhartari, and J., B. Dadachanji, for the appellants (in both the appeals). A.V. Rangam, for respondents Nos. I to 3 (in C.A. No. 484 of 1965). R. Gopalakrishnan, for respondents Nos. I to 3 (In C.A. No.485 of1965). B. Dutta, for respondents Nos. 4, 9 and II (in C.A. No. 484 of 1965) and respondents Nos. 13 to 17 and 20 (in C.A. No. 485 of 1965). 544 The Judgment of the Court was delivered by Bachawat, J. In the village of Thenkarai in the Madurai District there is an ancient temple of Sri Thirumoolanathaswami. Inams were granted by Hindu kings for performance of services ,of watchman, palanquin bearer, background music player, dancing girl, musical instrument player, mason, blacksmith carpenter, potter, washerman connected with the temple. The inams were confirmed by the British Government. For over 80 years, the inams were in the enjoyment of alienees from inamdars. By an order passed on April 10, 1947 under section 44 B of the Madras Hindu Religious Endowments Act, the Revenue Divisional Officer, Usilampatti resumed the inam lands and regranted them to the temple. On October 17, 1947, this order was confirmed on appeal by the District Collector. The Revenue Divisional Officer and the District Collector held that the inams comprised both melwaram and kudiwaram rights in the land. The orders were passed ,on notice to the alienees. The alienees instituted a suit in the ,Court of the Subordinate Judge, Madurai under the proviso to section 44 B(2)(d)(ii) asking for a decree declaring that the inam grants consisted of the melwaram only. The suit was withdrawn to the Court of the District Judge, Madurai and registered as O.S. No. 3 of 1954. They, instituted another suit in the Court of the Sub ordinate Judge, Madurai, asking for a decree declaring that the ,order of the Collector dated October 17, 1947 was a nullity. This suit was transferred to the Court of the District Judge and registered as O.S. No. 4 of 1954. The District Judge dismissed O.S. No. 3 of 1954. He decreed O.S. No. 4 of 1954 and declared that the order resuming the inam lands was illegal and a nullity. The plaintiffs filed an appeal registered as A.S. No. 746 of 1954 in the High Court of Madras from the decree in O.S. No. 3 of 1954. The High Court dismissed the appeal. The State of Madras filed an appeal registered as A.S. No. 808 of 1954 from the decree in O.S. No. 4 of 1954. The High Court allowed the appeal and dismissed the suit with respect to all the inams except the Dasi inam. Regarding the Dasi inam, the High Court dismissed the appeal as the inam was enfranchised and could not be resumed. It is from the decree of the High Court dismissing the suits in respect of the other inams that the plaintiffs have filed these appeals after obtaining special leave. The two courts concurrently held that the inams comprised both the kudiwaram and the melwaram. The District Judge held that the right to resume an inam could not be extinguished by adverse possession, and that, in any event, the claim of adverse possession was not established. The High Court held that assuming the right of resumption could be so extinguished, it was not established that the plaintiffs and their predecessors in title were in pOS session of the inam lands adversely to the inamdars or the Gov 545 ernment. The District Judge held that the inams were personal inams burdened with services and the order of resumption was therefore illegal and a nullity. The High Court reversed this finding and held that the inams were for performance of services connected with the temple and were resumable under section 44 B. The District Judge held that section 44 B was retrospective in operation. On this last point, the High Court did not express any opinion. It may be noted that O.S. Nos. 3 and 4 of 1954 were tried along with O.S. Nos. I and 2 of 1954 and disposed of by the District Judge by a common judgment. O.S. Nos. 1 and 2 of 1954 related to inams granted for performance of puja in another temple. From the decrees passed in O.S. Nos. 1 and 2 of 1954, there were appeals to the High Court and subsequently appeals to this Court. The judgment in those appeals is reported in Roman Catholic Mission vs State of Madras(1). One of the points in all the four suits was whether section 44 B was ultra vires the powers of the legislature. This Court held that the Provincial Legislature was competent to enact section 44 B and the amendment to it. On behalf of the appellants, Mr.S. T. Desai submitted that (1) the inam grants did not comprise the kudiwaram; (2) the inams were personal inams burdened with services and were not resumable under section 44 B; (3) Section 44 B (2) was not retrospective in operation and did not authorise resumption of the inams on the ground of any alienation thereof made before 1934; (4) there was no alienation of the inams as contemplated by section 44 B (2) (a) (i) and (5) the right of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for over 60 years. The Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) was passed on January 19, 1927. Section 44 B was inserted in the present Act by Madras Act XI of 1934 and was later amended by Madras Act V of 1944 and Madras Act, of 1946. This section corresponds to section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which repealed Act II of 1927. The material provisions of section 44 B are in these terms : "44 B. (1) 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 support or maintenance of a math or temple or for the performance of a charity or service connected therewith and made, confirmed or recognised by the British Government, shall be null and void. Explanation. Nothing contained in this sub section shall affect or derogate from the rights and obligations (1) ; 546 of the landholder and tenant in respect of any land as de fined in the Madras Estates Land Act, 1908. (2)(a) The Collector, may on his own motion, or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely : (i) that the holder of such inam or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for term exceeding five years, or (ii) that the holder of such inam or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam had been made, confirmed or recognised by the British Government, or any part of the said charity or service, as the case may be, or (iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance. When passing an order under this clause, the Collector shall determine whether such inam or the inam comprising such part, as the case may be, is a grant of both the melwaram and the kudiwaram or only of the melwaram. (f)Where any main or part of an inam is resumed under this section, the Collector or the District Collector, as the case 'may be, shall, by order, regrant such inam or part (i)as on endowment to the math or temple concerned,or (ii)in case of resumption on the ground that the math or temple has ceased to exist or that the charity or service in question has in any way become impossible of performance, 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. " 547 The inam title deeds, the entries in the inam fair register prepared at the time of the confirmation of the inams by the Inams Commissioner in 1863 and the contemporaneous statement made by the inamdars are of the same pattern in respect of all the inams. It is sufficient to refer to Exs. B 4, B 5 and B 6 relating to the inam for the service of Sree Padarn Thangi (palanquin bearers). The statement, exhibit B 4, shows that in fasli 1272 corresponding to 1862 63, Veerabadra Mudali, Periasami Mudali, Andiappa Mudali were in enjoyment of the inam and rendering the service under the direction of the Paisaldars or the trustees of the temple. They made the following statement: "For taking the deities in procession round the village during the festival in the temple of Tirumulanathaswami and Akilandeswari Amman in the village of Kovil Thenkarai the aforesaid land has been granted as inam. The paisaldars appointed our ancestors and got service from them. The aforesaid manyam was in their enjoyment. Afterwards the manyam was divided and during fasli 36, it was registered in the name of myself individual No. 1 and in the names of the fathers of individuals Nos. 2 and 3. They were rendering the service and enjoying manyam and in the same manner. We have been rendering the aforesaid service and enjoying the manyam. " The entries in the inam fair register, exhibit B 5 show that the inam belonged to the category of Devadayam and was for the service, of Sree Padam Thangi which was being then rendered, that the original grant was made to the temple before fasli 1212 corresponding to 18023, and that in 1863 the inam was being enjoyed by Verrabadra Mudali, Periasami Mudali and Andiappa Mudali. The title deed acknowledged their title to Devadayan or pagoda service inam to 11.47 acres of land held for the service of Sree Padam Thangi and confirmed the inam to them and their successors tax free to be held without interference so long as the conditions of the grant were duly fulfilled. Those documents show that the lands were being enjoyed by the inamdars and were granted as inams. The amount of the assessment or melwaram was very low and could not be an ade quate remuneration. for the services to be rendered. The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram. The conclusion is irresistible that the inam comprised both the warams. The inams were originally granted, to the temple for the performance of services connected therewith. The trustees of the temple appointed persons to perform those services and placed the inams in their possession to be enjoyed by them as remuneration for the services to be rendered by them. The Inam Commission confirmed the grants of the inams in favour of the hereditary officeholders then rendering the services. Where there were several 548 holders of the office, the inams were shown to be in their enjoyment in equal shares. It is quite clear that the inams were granted .to the holders of hereditary offices as remuneration for services to be rendered by them in connection with the temple. There is a well recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office, see, Forbes vs Noor Mahomed Tuquee(1). Section 44 B does not apply to a personal inam burdened with a condition of service, See P. V. Bheemsena Rao vs Siyrigiri Pedda Yella Reddi(2). It applies to an inam granted to an ,office holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution direc tly. The inams in the present case were not personal inams. They were inams granted to office holders as remuneration for services to be rendered by them and were within the purview of 44 B. The next question is whether section 44 B allows resumption of an inam falling within the purview of the section where the inam was alienated before the section came into force in 1934. Subsection (1) of section 44 B renders null and void certain alienations of the inam. Sub section (2) authorises resumption of the inam on certain grounds. Sub section (2) is not dependent upon sub sec. (1) and allows resumption even in cases where there has been no alienation of the inam. In the present case, we are not concerned with the retrospective operation of sub see. (1) of section 44 B, and we express no opinion on it. But there can be no doubt that section 44 B (2)(a)(i) allows a resumption of the inam where there has ,been an alienation of the inam either before or after 1934. Even apart from section 44 B, any inam whatever its nature could be resumed for failure to perform the conditions of the grant. Subject to certain restrictions and safeguards, paragraph 2 of the Board 's Standing Order No. 54 permitted resumption of religious and charitable inams on the ground that the land was alienated or otherwise lost to the institution or service to which it once belonged or on the ground that the terms of the grant were not observed. The object ,of section 44 B was to define and enlarge the, grounds on which the inams could be resumed and to devise a proper procedure for the resumption. On general grounds of public policy, the legislature has declared that the inam may be resumed on any of the three grounds mentioned therein. The first ground is that the holder of the inam has made an alienation. The words "has made" in sub. section (2)(a)(i) takes in all alienations past and future and not only future alienations or alienations made after the section came into force. ' If there has been any alienation at any time the first ground ,exists and the inam may be resumed under section 44 B. The words "has failed" in sub. section (2)(a)(ii) and the words "has ceased" and (1) (1870) 13 H.I.A.438,464. (2) ; 549 "has become" in sub. section (2)(a)(iii) similarly authorise resumption of the inam if the other grounds exist though they may have arisen earlier. Section 44 B(2) is in its direct operation prospective as it authorises only future resumption after it came into force. It is not properly called retrospective "because a part of the requisites for its action is drawn from a time antecedent to its passing," See Maxwell on Interpretation of Statutes, 1 1 the, p. 21 1. The, inams in the present case are resumable under section 44 B(2)(a)(i) though the alienations were made before 1934. Section 44 B(2)(a)(i) is attracted if the holder of the inam has made an exchange, gift, sale or mortgage of the inam or has granted a lease of it for a term exceeding five years. In the plaint in Suit O.S. No. 4 of 1954 the plaintiffs claimed that one Kunjanna Ayyar, their predecessor in title purchased the lands from the inamdars before 1861. The plaintiffs failed to prove that the inamdars sold the lands. The only direct evidence as to how Kunjanna Ayyar came into possession of the suit lands is furnished by exhibit A 2, a statement made by the inam holders to the Madurai District Collector on August 14, 1868. It shows that Kunjanna Ayyar had taken the lands on cowle from the inamdars. The word "cowle" means a lease. In Wilson 's Glossary it is stated that the word ordinarily denotes a lease and not a mortgage. Before the District Collector the plaintiffs admitted that they were holding under a cowle lease. The District Collector held that the alienation was within the purview of section 44 B. The High Court also held that the plaintiffs and their predecessor in title were in enjoyment of the lands under the lease. At no stage of the litigation either before the revenue authorities or in the plaint or before the District Judge or in the High Court did the plaintiffs contend that the alienation in their favour was not within the purview of section 44 B (2) (a) (i). As a matter of fact, the case made in the plaint was that their predecessor in title had purchased the land from the inamdars. Such an alienation is clearly within the purview of section 44 B(2)(a)(i). For the first time in this Court it is contended that the alienation was by way of a lease from year to year. It may be conceded that all lease& do not come within the purview of section 44 B(2)(a)(i). The km must be for a term exceed ' 5 years. A lease from year to year is not a lease for a term exceeding 5 years howsoever long the lessee might have continued in possession of the demised lands. But we think that the plaintiffs ought not to be allowed to raise at this late stage the novel contention that the lease was from year to year '. This contention is contrary to the case made by them in the plaint. Moreover, the materials on the record do not support the contention. The plaintiffs and their predecessor in title were in continuous possession of the lands for over 80 years under the cowle lease. The original cowle is not forthcoming. The plaintiffs claimed to be permanent alienees of the lands. In all these circumstances, we are inclined to presume that the cowle granted 550 a permanent lease and the inams were resumable under section 44 B (2)(a)(i). There is no period of limitation prescribed for the initiation of proceedings under section 44 B(2). The section gave a new statutory right of resumption of the inams. On a resumption of the inams, the title, if any, of all persons claiming through the inamdars to any subordinate interest in the inams stood determined. Kunjanna Ayyar and his successors in title were lessees of the inam lands under the inamdars. During the continuance of the tenancy, their possession was not adverse to the inamdars. A fortiori, their possession *as not adverse to the Government under whom the inamdars held the inam lands. They did not acquire any prescriptive title to the kudiwaram rights either against the inamdars or against the Government. The Government could, therefore, resume the inam lands made under section 44 B(2) and dispossess the inamdars and the plaintiffs claiming as lessees under them. The question whether an alienee from the inamdar can acquire prescriptive title to the kudiwaram rights in the inam lands against the Government and thereby defeat the latter 's right to resume the inam does not, therefore, arise for decision, and we express no opinion on it. It, may be noted that in Roman Catholic Mission vs State of Madras( ') this Court held that there is no limitation barring imposition of assessment on the land after resuming the melwaram. It follows that both the kudiwaram and melwaram rights were rightly resumed under section 44 B(2)(4)(i). In the result, the appeals are dismissed. In all the circumstances of the case, there will be no order as to costs. G.C. Appeals dismissed. (1) [1966] 3 S.C.R.283,299. [/INST]Section 23A of the income tax Act, 1922, empowered the Income tax Officer to assess individual members of a company in respect of undistributed assessable income of the company in certain circumstances. The proviso to this section made section 23A inapplicable to a company in which the public was substantially interested. The explanation to the proviso laid down that a company shall be deemed to be one in which the public was 84 substantially interested if the shares of the company carrying not less than 25% of the voting power had been allotted unconditionally to or acquired by the public and were held beneficially by the public. It was found that though the directors 'of the company 's qua directors did not hold more than 75% of the shares, the shares held by such directors as were partners in the firm of the Managing Agents of the company together with the shares held by other partners of the Managing Agents and the shares held by the members of the Managing Agency on behalf of minor children exceeded 75% of the voting power. Held, that the company was not one in, which the public was substantially interested and section 23A was applicable to it. No person could be said to belong to the "public" unless he held the shares unconditionally and beneficially for himself. The words "unconditionally" and "beneficially" indicated that the voting power arising from the holding of those shires should be free and not within the control of some shareholder and the holder should not be a nominee of another. Directors, qua directors, were not without the pale of the public as there was nothing that required them to act in unison. What had to be seen was whether there was any individual or a group holding the controlling interest which group acting in concert could direct the affairs of the company at its will. The partners of the Managing, Agency constituted a group holding more than 75% of the voting power in the company and they could not be counted as public as they must be taken to act in their own interest in unison". Commissioner of Income tax vs H. Bjordal, [1955] 28 I. T. R. 25, referred to. Shri Changdeo Sugar Mills Ltd. vs Commissioner of Income tax, Bombay, [1961] 41 and Raghuvanshi Mills Ltd. vs Commissioner of Income tax [1961] 41 , relied on. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 806 of 1982. From the Judgment and order dated 27 7 1981 of the Industrial Tribunal (III) U.P. in Adjudication Case No. 15 of 1977. 114 M. K. Ramamurthy, Jitendra Sharma and P. Gaur for the Appellants G.B. Pai, H. K. Puri and J. K. Mehra for the Respondent. The Judgment of the Court was delivered by DESAI, J. In exercise of the power conferred by Sec. 4 (K) of the U.P (`Act ' for short) the Government of Uttar Pradesh by its order dated May 23, 1975 referred the following dispute to the Industrial Tribunal for adjudication. The reference is in Hindi. Agreed translation of the industrial dispute referred for adjudication reads as under: "Whether the variable dearness allowance payable by the employers to their workmen should be revised and it should be linked with the consumer price index for industrial workers at Kanpur computed by Labour Bureau Simla ? If yes, then from what rate (sic) and with what other details. " There are two rival unions of the workmen employed by the Indian Oxygen Ltd. (`Company ' for short) in its Industrial under taking at Kanpur. They are the Indian Oxygen Karamchari Union (Karamchari Union ' for short) and the Indian Oxygen Sharamik Sangh (`Sharamik Sangh ' for short). There is a federation of trade unions formed at various centres where the Company has its industrial undertaking. Sharamik Sangh is affiliated to the federation. Karamachari Union claims to represent the workmen employed by the Company at Kanpur. The demand and the consequent industrial dispute which led to the reference was espoused by Karamchari Union. The Karamchari Union in its statement of claim stated that the Company is a unit of the multi national British Oxygen Company. The Indian Unit of the multi national corporation operates under the name and style of M/s Indian Oxygen Ltd. The industrial activities of the Company comprises manufacture and sale of industrial and medical gases etc. It was stated that while the wage structure is uniform in respect of workmen employed by the Company all over the country the dearness allowance formula varies from centre to centre. Briefly it was stated that the workmen of the Company employed at Bombay, Madras, Hyderabad, Bangalore and 115 Delhi are in receipt of higher dearness allowance compared to the workmen employed in Kanpur Unit. The immediate provocation for raising the demand was an award by the Industrial Tribunal Delhi by which the dearness allowance of the workmen employed in Delhi unit was linked to consumer price index for Delhi prepared by the Labour Bureau Simla which resulted in a substantial increase in the dearness allowance available to the workmen posted at Delhi. Soon after the award was published, the Karamahcari Union submitted a demand on January 7, 1975 for revising the rate of dearness allowance for workmen employed in Kanpur unit and as there was no adequate response from the employer, the matter was taken into conciliation. The Company in its attempt to thwart the demand being pursued entered into a settlement with the Sharamik Sangh in respect of the dearness allowance and then approached the Labour Commissioner Kanpur for registering the settlement. Failing to obtain the registration, the Company unilaterally enforced the new scheme of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau Simla. The Karamchari Union did not accept the revised formula, and pressed its demand that the dearness allowance should be linked to all India consumer price index number prepared by Labour Bureau, Simla for Kanpur centre, after adopting the linking factor as has been done in the award by the Industrial Tribunal at Delhi. The conversion ratio was suggested at 4.83 linked to January 1970 index number. The Company consistent with the employer culture put forth number of preliminary objections so as to delay the adjudication of the demand. All the preliminary objections failed as per the decision of this Court in Indian Oxygen Ltd. vs The Workmen as represented by Indian Oxygen Karamachari Union.(1) After the matter went back for adjudication on merits it was contended on behalf of the Company that the settlement arrived at between the Sharamik Sangh and the Company would be binding on the members of the Karamachari Union and the Tribunal should not adjudicate the dispute on merits. This settlement has been stigmatized by this Court to be a collusive one. (See page 920). It was further contended that the Company is desirous of linking dearness allowance to all India average consumer price index for working class with base 1960=100 and that the Tribunal should avoid accepting a demand of a few workmen where a majority of the workmen have accepted and are satisfied with the revised formula introduced by the Company. 116 The Company employs 5,400 workmen in all its establishments all over the country. Out of total strength of 5,400 workmen, 3030 are employed in gas manufacturing unit. The employment strength in Kanpur unit is roughly about 200. It is not in dispute that the basic wages of all workmen employed all over the country by this Company are occupation wise uniform but the dearness allowance paid to workmen differs or varies from place to place. This ought to be so as will be presently pointed out. Prior to 1975 dearness allowance to the workmen employed in the units of the Company in North Eastern Zone i.e. in the States of West Bengal, Bihar, Orissa, U.P., Delhi and Punjab was linked to the consumer price index number (middle class) prepared by the Bengal Chamber of Commerce for Calcutta. It may be mentioned that the Bengal index has been discontinued since 1975. It is important to note that by the two awards of the Industrial Tribunal, the office staff and the workmen employed the Company at Delhi are being paid dearness allowance linked to consumer price index compiled by Labour Bureau Simla for Delhi. Subsequently by a decision of this Court in Govardhan Prasad and others vs The Management of M/s Indian Oxygen Ltd.(1) 10 workmen employed by the Company stationed at Ghaziabad were required to be paid dearness allowance to the same extent and in the same manner as was being paid under the awards of the Industrial Tribunal to the workmen of the Company at Delhi. Before we delve into the narrow contentions raised in this behalf we would remove the gloss over the submission that the attempt of the company, having all India operation, is to introduce uniformity in the matter of dearness allowance payable to its workmen all over the country. Uniformity, to an uninformed mind, appears to be very attractive. But let it not be forgotten that sometimes this uniformity amongst dissimilar persons becomes counter productive. Uniformity and equality have to be amongst equals measured by a common denominator. One can appreciate the implementation of the constitutional aspiration of `equal pay for equal work. ' In the matter of basic wages it is a consummation devotedly to be wished. But when it comes to dearness allowance any attempt at uniformity between workmen in such metropolitan areas like Delhi, Bombay, Madras, Calcutta and in smaller centres 117 would be destructive of the concept of dearness allowance. Dearness allowance is directly related to the erosion of real wages by constant upward spiraling of the prices of basic necessities and as a sequel to the inflationary input, the fall in purchasing power of the rupee. It is a notorious phenomenon hitherto unquestioned that price rise varies from centre to centre. Dearness allowance is inextricably intertwined with price rise, it being an attempt to compensate loss in real wages on account of price rise considered as a passing phenomenon by compensation. That is why it is called variable dearness allowance. Any uniformity in the matter of dearness allowance may confer a boon on persons employed in smaller centres and those in big metropolitan areas would be hard hit. Dearness allowance by its very form and name has an intimate relation to the prevailing price structure of basic necessities at the centre in which the workman is employed. Therefore, the claim in the written statement on behalf of the company that imbued with the equitable principle of introducing uniformity in the matter of dearness allowance, the Company with the easy availability of consent of its protege union Sharamik Sangh introduced a new scheme of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau, Simla is misleading. The Tribunal rightly observed that it is by now well settled that dearness allowance to workmen at a particular place should depend upon the place where the workman is working irrespective of the fact that the industrial undertaking in which the workman is employed is a unit of an industrial enterprise having an all India or inter State operations. In Dunlop Rubber Co. (India) Ltd vs Workmen & Ors.,(1) a contention on behalf of the employer that in the case of an all India concern, it would be advisable to have uniform conditions of service throughout India was repelled observing that `however desirable uniformity may be in the case of all India concerns, the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned. ' This view to some extent was affirmed in the Remington Rand of India Ltd vs The Workmen(2). Leaving aside basic wages in the matter of dearness allowance specially the Court should lean in favour of adjudication of dispute on the principle of industry cum region because dearness allowance is linked to cost of living index of a particular centre which has a local flavour. If the concept of uniformity on an all India basis is introduced in the matter of dearness allowance, it would work havoc, because the price structure 118 in a market economy at places like Bombay, Madras, Calcutta, Delhi, Ahmedabad has little or no relation to smaller centres like Kanpur, Varanasi etc. If workmen working in such disparate centres are put on par in the matter of dearness allowance in the name of proclaimed all India uniformity, not only unequals will be treated as equals but the former would suffer irreparable harm. Such an approach would deal a fatal blow to the well recognised principle of industrial adjudication based on region cum industry developed by courts by a catena of decisions. Realising this situation courts have learned in favour of determination of dearness allowance linked to cost of living index, if available for the centre where the workman employed and in the matter of neutralisation on the industry cum region principle. The Tribunal having rejected this approach committed an error apparent on the record. At this stage, it is necessary to have some idea of what is consumer price index number, how it is being complied and what is its relevance in the matter of dearness allowance ? Pursuant to the recommendations of the Planning Commission for the Second Five Year Plan the Labour Bureau, Simla and the Industrial Statistical Organisation of the Government of India took steps to conduct fresh family living surveys among working class and middle class population respectively with a view to constructing the new series of consumer price index numbers. The working class surveys were conducted at 50 selected centres and the middle class surveys at 45 centres, 18 centres being common to both. The work of this survey was commenced in the second half of 1958 and was concluded by September, 1959. One of the centres selected for survey was Kanpur (See Ahmedabad Mill Owners ' Association etc. vs The Textile Labour Association(1) What materials and statistical information enter into the compilation of consumer price index number may be briefly noticed. The consumer price index number for industrial workers (base 1960=100) are being compiled and published by the Labour Bureau, Simla every month in respect of 50 industrial centres scattered all over the country. Amongst them is Kanpur. The material collected is through the family surveys of working class families. There are six main groups for which indices for each centre are being compiled besides the general index. They are: 119 (i) Food (ii) Pan, Supari, Tobacco and intoxicants (iii) Fuel and light (iv) Housing (v) Clothing, bedding and footwear, and (vi) Miscellaneous Consumer price index numbers are intended to measure relative temporal (overtime) changes in the price of a fixed basket of goods and services consumed by the index population in a current period in relation to the base period. The index numbers are compiled by using Laspeyers ' Formula. The Broadly stated this formula takes note of base and current prices for a particular item, quantity consumed of that item during the base period. It would appear that for the compilation of an index, there are three essential requirements namely: (1) weighting diagram which is the relative percentage share of the total consumption expenditure as revealed by the basic family budget enquiry in respect of different items, (2) Base prices of the different items which go into the index basket and (3) current prices in respect of each one of the items featuring in the index basket. The weighting diagram for a centre is derived on the basis of the data collected through family budget enquiries which were conducted in the 1958 59 at each one of the 50 centres. The survey was conducted by taking all samples of working class families in each of the 50 centres and the data was collected by interviewing these families. Based on the results of the family budget enquiries, the average expenditure of a family per month on different items of consumption was arrived at. All India average consumer price index number is a weighted average of the 50 centres ' indices. This is compiled and published alongwith the index number for each centre (Source: Consumer Price Index: An anatomy published by Labour Bureau, Simla). It would appear at a glance that there would be a noticeable difference between the consumer price index number for a centre and its weighted average for 50 centres which would be the all India average consumer price index number, the latter would generally be lower than the former in some cases. 120 Reverting to the demand in this case, the Karamchari Union raised a demand that the variable dearness allowance payable to the workmen should not only be revised but it should be linked with the consumer price index for industrial workers at Kanpur. The Tribunal by its award directed the employer to pay dearness allowance linked to the all India consumer price index (1960= 100) for the Kanpur Centre compiled by Labour Bureau, Simla. On the question of neuturalisation, the Tribunal directed that the calculation in the rate of dearness allowance will remain the same as presently operative and no change is required therein. In reaching this conclusion, the Tribunal committed two manifest errors apparent on the record. The company introduced as stated in its written statement, a new scheme of dearness allowance linked to the all India consumer price index prepared by Labour Bureau, Simla. That was a very recent innovation introduced by way of a counter blast to the demand raised by the Karamchari Union. Prior thereto, it is an admitted position that the workmen at Kanpur were being paid dearness allowance linked to Bengal Chamber of Commerce Index Number. That was unilaterally given up by the Company. There appeared to be at least two valid reasons for scrapping that scheme: one is that since 1975 Bengal Chamber of Commerce Index which was compiled for middle class families and was being artificially applied to industrial workers has been scrapped. In other words, the index is no more being compiled. Secondly, the constituent members of the Bengal Chamber of Commerce had started their business in India long before the present century and most of them were incorporated in England or other Western countries while the Company in the present case has been started a few decades back and therefore, re induction of the Bengal Chamber Index Number would not be relevant. On behalf of the Karamchari Union, it was contended that in devising a dearness allowance formula, the region cum industry principle should ordinarily be accepted. As pointed out earlier, dearness allowance generally has a local flavour. A man is exposed to the vagaries of the market where he resides and works, even though he may be an employee of a national, multinational or trans national industrial empire. The workman is concerned with the vagaries of price fluctuation in the area in which he resides and works for gain and to which he is exposed. Therefore, the region 121 cum industry principle must inform industrial adjudication in the matter of dearness allowance. In Woolcombers of India Ltd. vs Woolcombers Workers Union & Anr. (1) this Court following its earlier decision in Greaves Cotton & Co. and Ors vs Their Workmen (2) held that in devising basic wages and dearness allowance structure, industrial adjudication sometimes leans on the industry part of the industry cum region formula and at other times, on the region part of the formula as the situation demands. This well recognised principle of industrial adjudication cannot be given a go by on the specious plea that the workmen are employed by an industrial undertaking which has an all India operation. In this case, the Tribunal has overlooked this important principle of industrial adjudication. Before we examine the second manifest error committed by the Tribunal in narrowly construing the terms of reference, it would be advantageous to briefly recapitulate what relevant considerations have to be kept in view in devising dearness allowance formula. This aspect is no more res integra. In Bengal Chemical and Pharmaceutical Works Ltd. vs Its workmen (3), after reviewing all the earlier decisions, the court restated the principles on which a fair and just dearness allowance formula must be devised. They are: "1. Full neutralisation is not normally given, except to the very lowest class of employees. The purpose of dearness allowance being to neutralise a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on the rise in the cost of living and a decrease on a fall in the cost of living. The basis of fixation of wages and dearness allowance is industry cum region. Employees getting the same wages should get the same dearness allowance, irrespective of whether they are working as clerks or members of subordinate staff or factory workmen. 122 5. The additional financial burden which a revision of the wage structure or dearness allowance would impose upon an employer, and his ability to bear such burden, are very material and relevant factors to be taken into account. " We need not examine whether the dearness allowance formula as at present existing is valid according to the principles herein extracted because we are not devising a dearness formula for the workmen working in the industrial undertaking of the company at Kanpur for the first time. The demand is for upward revision of the dearness allowance formula and its linkage. The terms of reference extracted hereinbefore unmistakable show that the workmen sought upward revision of the variable dearness allowance by linking it to the consumer price index number for industrial workers at Kanpur computed by Labour Bureau, Simla. If the demand is to be granted, the Tribunal was requested to specify the rate and other details. Interpreting this reference the Tribunal observed that the new dearness allowance formula which was in vogue at the time of the reference as being related to all India average consumer price index number for industrial workers in accordance with the settlement with the Shramik Sangh which settlement was found to be collusive by this Court yet the Tribunal must proceed on the basis that dearness allowance was being paid to the workmen at Kanpur as per the settlement and that cannot be wished away. This approach overlooks a vital fact that the introduction of the new formula under a collusive settlement led to the demand for revision. The Tribunal rejected the submission that it must examine and devise a new formula in relation to the Bengal Chamber of Commerce Index Scheme which was in vogue before the formula as per the collusive settlement was introduced. If the settlement between the company which is found to be collusive by this Court is to be the starting point of revision of the dearness allowance formula as has been done by the Tribunal, the conclusion is inescapable that the Tribunal started from a wrong premise and landed itself into an utterly unsustainable conclusion. This is the second apparent error in the face of the record which would impoll us to interfere. Mere so because the genesis of the demand for a revision of the dearness allowance was the collusive settlement. The Tribunal committed a grave error in accepting the settlement as the starting point of the revision. 123 The demand of the Karamchari Union was that the Tribunal should first take into account, relevant to a certain date, the all India consumer price index number for Kanpur centre (1960=100) and then the index figure should be multiplied by the conversion factor of 4.83 and then dearness allowance should be linked to the figure so worked out. The Tribunal rejected this demand on the ground that in the statement of claim, the Karamchari Union demanded payment of dearness allowance according to Simla Index Number for Kanpur. The Tribunal took note of the fact of the linking factor but observed that as the same has been discontinued by the Labour Commissioner, U.P., the demand has been essentially for dearness allowance according to the Simla Index for Kanpur. This reasoning manifests an error in approaching, appreciating and evaluating the demand for revision of dearness allowance. Before we examine the error, let it be made clear that where for a certain industrial centre, a dearness allowance formula is in vogue and it is linked to some consumer price index number, whenever the base year for consumer price index number is changed, a fresh linkage requires a conversion ratio. In the absence of a conversion ratio, the whole scheme falls out of gear and becomes unworkable. To illustrate, in the textile industry, the consumer price index number was compiled on the basis of base year 1939=100. The year 1939 was chosen as the year in which the second world was engulfed the world which completely overhauled the consumer pattern and the prices of essential articles. Over years the price spiral relentlessly moved upward and that too so rapidly that in most of the industries where even though 100% neutralisation was not given by devising a dearness allowance yet the dearness allowance for a given month was occasionally double or triable of the basis wage. This was unjust, unfair and from an economist 's point of view, imprudent. Therefore, as pointed out earlier, a fresh survey was undertaken in 1958 with the base year 1960=100. A fresh index was compiled and continues to be compiled with 1960=100 as base year. In fact the 1960=100 base year is being replaced. We will however, confine ourselves in this appeal to the base year of 1960=100. Now if those industrial undertakings in which dearness allowance formula was linked to the base year 1939=100 are to be delinked and relinked to the index number compiled on the base year 1960=100, before the fresh number is adopted, a linking or a conversion ratio between 1939 100 and 1960=100 will have to be computed. Only then a fresh linkage 124 can be devised. This very obvious fact has been wholly overlooked by the Tribunal when it merely awarded that the workmen of the company at Kanpur should be paid dearness allowance linked to the all India consumer price index number (1960=100) for Kanpur Centre compiled by Labour Bureau, Simla. This approach overlooks the linking factor. The rejection of the linking or conversion factor makes the scheme devised by the award unworkable, ineffective and in fact unjust. In this connection, we may refer to the Ahmedabad Mill Owner 's Association case in which this Court after noting the fact that the base year having changed, pointed out that the question of linking factor loomed large and assumed importance. The court had before it the admitted position that there was only one index existing in Ahmedabad which was based on the new series (1960=100) and the old series (1939=100) has rightly gone out of existence since it had become antiquated. Two alternatives were submitted to the court for its consideration. It was submitted that an entirely new scheme of basic wages based not on the pre war level of 1939, but based on the cost of living of 1960 as the base year be devised and then award dearness allowance in relation thereto. In the alternative, it was submitted that an arithmetical method of linking the old and the new series be devised. The Tribunal had accepted the conversion ratio at 3.17. This was attacked on diverse grounds. After examining the whole gamut of arguments, this Court held that the linking factor of 3.17 was valid and correct Approaching the matter from the same angle, and avoiding the arguments which have been rejected by this Court in the aforementioned judgment, we are of the opinion that the conversion ratio of 4.83 is valid and correct and the Tribunal ought to have accepted the same. It is usual in the matter of dearness allowance to examine the paying capacity of the employer. Rightly Mr. Pai did not at all contend that this employer can not bear the additional burden. We therefore, need not stray into this aspect at all. On behalf of the Karamchari Union, it was seriously contended that the award of the Industrial Tribunal at Delhi between this very Company and its Workmen at Delhi be accepted. We need not examine the same as the comparison between Delhi and Kanpur is ill conceived and untenable. Delhi is the capital of the sub continent and it is fast growing. Kanpur is at best a district town though 125 undoubtedly an important industrial centre in U.P. But the comparison would be invidious. Accordingly, this appeal partly succeeds and is allowed. The award of the Industrial Tribunal that the workmen of the Kanpur unit of the Indian Oxygen Ltd. should be paid dearness allowance linked to all India consumer price index (1960=100) for Kanpur centre compiled by the Labour Bureau, Simla is modified to read that 'the dearness allowance should be paid according to all India consumer price index number for Kanpur (1960=100) compiled by Labour Bureau, Simla after applying conversion factor also called linking factor of 4.83. ' In all other respects i.e. the date of enforceability etc. the award remains unaltered except for the modification herein granted. The appeal is allowed to this extent with costs quantified at Rs. 3,000. A.P.J. Appeal partly allowed. [/INST]Taluk Kakwara was in its origin a Zemindari Ghatwali tenure and continued to be so, and was in fact treated as such ever since. Even if by virtue of Captain Browne 's Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali or after the Permanent Settle ment at any rate, it became a Zemindari Ghatwali and as such alienable with the consent of the Zemindar according to the custom of Kharakpur judicially recognised [Nature and incidents of Ghatwali tenures discussed]. </s>

<s>[INST] Summarize the judgement: Special Leave Petition (Crl.) 2599 of 1979. From the Judgment and Order dated 9 7 1979 of the Punjab and Haryana High Court in Crl. A. 1228/1976. section K Sabharwal and R.C. Kohli for the petitioner. The order of the Court was delivered by, KRISHNA IYER, J, A rapist if the concurrent findings of the courts below were correct has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the verdict of culpability as wholly unfounded. Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under article 136, to launch upon an exploration and re appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court. Briefly, we will touch upon one or two circumstances without claiming to be exhaustive in any manner. One Shashi Bala of Ambala was sleeping, with her mother and other children, outside her house in hot July (1975). The petitioner, in the company of another (acquitted accused), carried her away under intimidation to a neighbouring godown belonging to one Tilak Raj (another acquitted accused) and in that secluded venue committed rape on the young women. After subjecting her to these beasteal acts of lust, Shashi Bala, who by then was nearly unconscious, was put back in her cot from where she had been removed. In the morning, the mother of the victim found blood on the daughter 's salwar and thereupon she complainingly narrated the criminal assault of the previous night. On the return of the father, P.W. 7, who had been away, the victim went, in his company, to the police station, lodged a report which was followed by investigation and charge sheet. The Court, after a trial, convicted the present petitioner but, on grounds of benefit of doubt, acquitted the rest. Medical evidence showed that the raped girl was below 16 years of age. We are not too happy about the acquittal but since the State has not chosen to come up in appeal against the acquittal, we do not probe the matter further. Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequate to rest a conviction under section 376 I.P.C. He relied on observations of this Court in Gurucharan Singh vs State of Haryana for the pro 307 position that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration "so as to satisfy its conscience that she is telling the truth and that the present accused of rape on her has not been falsely implicated". It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge made law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstance make it safe to dispense with it". Case law, even in those days, had clearly spelt out the following propositions: "The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed, to stand." "It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged. " Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel. We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim 's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, 308 as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'Judicial ' probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world. We are not satisfied that merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, acquit everyone, Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it. N.V.K. Petition dismissed. [/INST]The Management Tea Co. Ltd. appellant in C. A. 1538/71 retrenched on November 5, 1966, 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of section 25F of the Industrial Disputes Act based on wages obtaining prior to Wage Board Award, which came into force on 1 4 66 retroactively and in the order of 'last come, first go ', while the services of other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of Section 25G of the Act, i.e. out of turn. The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16, but set aside the termination of the other seven. The High Court agreed with the Tribunal 's Award and hence the appeals both by the workmen and the management after obtaining special leave. Dismissing both the appeals, the Court ^ HELD: 1. The plea that the amount paid by way of retrenchment compensation envisaged in Section 25F of the Industrial Disputes Act, not having been computed as per the revised pay scales as per the Wage Board Award, fell short of what was legally due and hence there was non compliance is not tenable because before the Tribunal this contention was neither pleaded nor proved. There was no hint of it in the Award. In the High Court this new plea based on the facts was not permitted. Further the Wage Boards ' Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment. In the absence of any basis for this new plea Supreme Court cannot reopen an ancient matter of 1966. But the 16 Workmen, being admittedly eligible for the Wage Board scale, would be paid the difference for the period between 1 4 66 to 5 11 66. [969 A E] 2. Section 25G of the Industrial Disputes Act postulates that ordinarily the 'last come, first go ' will be the methodology of retrenchment. Of course, it is not an inflexible rule and extra ordinary situations may justify variations. There must be valid reason for this decision, and, obviously, the burden is on the Management to substantiate the special ground for departure from the rule. Surely, valid and justifiable reasons are for the management to make our, and if made out, section 25G will be vindicated and not violated, varying the ordinary rule of 'last come first go. ' There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance 967 with section 25G grade wise. Absence of mala fides by itself is no absolution from the rule in s.25G. Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go ' principle. The above rule can be applied category wise. That is to say those who fell in the same category shall suffer retrenchment only in accordance with the principle of last come first go. [969 E, H, 970 A, B, D F] M/s. Om Oil & Oil Seeds Exchange Ltd., Delhi vs Their Workmen, , followed. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a confusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. In the instant case, the seniority List is the same which is a telling circumstance to show that they fell in the same category. [971 C E] 4. Supreme Court cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance. The logistics of litigation for indigent workmen is a burden the management tried to use by a covert blackmail through the judicial process. Misplaced sympathy is a mirage justice. [971 G H, 972 A B] </s>

<s>[INST] Summarize the judgementAppeal No. 999 of 1964. Appeal by special leave from the order dated March 25, 1954 of the Life Insurance Tribunal, Bombay in Case No. 27 of 1962. C. K. Daphtary, Attorney General, section J. Banaji, Atiqutor Rehman and K. L. Hathi, for the appellant. N. A. Palkhivala, section J. Sorabjee, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent. The Judgment of the Court was delivered by Wanchoo J. The only question that arises for determination in this appeal by special leave from the order of the Life Insurance Tribunal, Bombay, is the interpretation of the words "life insurance fund" as used in paragraph 4 of Part B of the First Schedule to the , No. 31 of 1956, (hereinafter referred to as the Act). The question arose in connection with the payment of compensation to the respondent, the Crown Life Insurance Company, which is incorporated in Canada, by the appellant, the Life Insurance Corporation of India on the taking over of the business of the respondent by the appellant under the Act. The respondent claimed Rs. 27,86,658 as compensation while the appellant was prepared to pay Rs. 1, 1 1,466. The respondent claimed that as its life insurance fund was always in deficit before the Act came into force, there was no liability on it under cl.(d) of paragraph 4 of Part B of the First Schedule to the Act. The appellant on the other hand claimed that under that cl. (d), there was a surplus of Rs. 27,86,658 and therefore under cl. (d) a sum of Rs. 26,75,192 was to be debited towards the liabilities of the respondent. That is how the appellant arrived at the compensation of Rs. 1,11,466. The appellant claimed that the words "life insurance fund" in cl. (d) meant the difference between the total assets and the liabilities under cls. (a) and (c) of the said paragraph 4. The respondent on the other hand contended that the words "life insurance fund" in cl. (d) had the same meaning as those words had under the , No. 4 of 1938 (hereinafter referred to as the ). The respondent therefore claimed that as there was always a deficit in its working as shown by form 1 of the Fourth Schedule to the , no amount was to be deducted as liability under cl. (d) of the said paragraph 4. It is this difference in the meaning assigned to the words "life insurance fund" by the parties 477 that is responsible for the large difference in the amount claimed by the respondent and offered by the appellant. The Insurance Tribunal has accepted the contention put for ward on behalf of the respondent and has held that the words "life insurance fund" in cl. (d) of the said paragraph 4 have the same meaning as in the , and that there is only one meaning of these words in the . It has rejected the contention raised on behalf of the appellant and has in consequence awarded compensation at Rs. 27,86,658. Aggrieved by this order, the appellant got special leave from this Court; and that is how the matter has come up before us. The sole question that falls for determination therefore de pends on the interpretation of the words "life insurance fund" and for that purpose we shall have to consider certain provisions of the as well as of the Act. We may at the outset refer to section 2 (10) of the Act, which is as follows: " In this Act, unless context otherwise require (10) all other words and expression used herein but not defined and defined in the shall have the meanings respectively assigned to them in that Act. " It is not in dispute that the words "life insurance fund" appear In the though not in the definition section thereof. Section 2 (10) of the Act however does not refer only to the definitions in the definition section of the ; it lays down generally that any words and expressions used in the Act and defined in the shall have the meanings assigned to them in the (and that means anywhere in the ) unless the context otherwise requires. We have therefore to turn to the first to find out the meaning of the words "life insurance fund" as given therein and then to see whether the context of cl. (d) of the said paragraph 4 requires otherwise. If we come to the conclusion that it does not require otherwise, the words "life insurance fund" in cl. (d) of the said paragraph 4 will have the same meaning as in the . Let us therefore turn to the to see what the words "life insurance fund" mean under that Act. It has been urged in the first place on behalf of the appellant that the words "life insurance fund" under the have not one meaning only and therefore it is not possible to give that meaning to these words in cl. (d) with which we are concerned. In the alternative it is urged that the context requires that even if the words "lift insurance fund" have only one meaning under the , they have a different meaning under cl. We have therefore to find out what the words "life insurance fund" mean under the and whether they have the same meaning throughout the Act. We have already pointed out that the words "life insurance fund" have not been defined in section 2 (N)4SCI 4 478 of the insurance Act, which is the definition section. But there is no doubt that in section 10 of the , these words have been given a specific meaning to which we shall now refer. The was concerned not only with life insurance business but also with insurance business of other kinds, namely, marine, fire and miscellaneous. It was open to an insurance company to carry on either the life insurance business only or life insurance business along with insurance business of other kinds also. Therefore, section 10(1) of the provided that where an insurer carried on business of more than one kind, he was boUnd to keep a separate account of all receipts and payments in respect of each kind of business. Section 10(2) dealt specifically with life insurance and we therefore read the relevant part of that sub section: "Where the insurer carries on the business of life insurance, all receipts due in respect of such business shall be carried to and shall form a separate fund to be called the life insurance fund the assets of which shall. be kept distinct and separate from all other assets of the insurer and the deposit made by the insurer in respect of life insurance business shall be deemed to be part of the assets of such fund and every insurer sHall. furnish to the Controller a statement showing in detail such assets as at the close of every calendar year duly certified by an auditor or by a person qualified to audit under the law of the insurer 's country"; There are three provisos to this section to which it is unnecessary for our purposes to refer. Sub section (3) of section 10 is also material and runs as follow: "The life insurance fund shall be as absolutely the security of the life policy holders as though it belonged to an insurer carrying on no other business s than life insurance business and shall not be liable for any contracts of the insurer for which it,would not have been liable had the business of the insurer been only that of life insurance and shall not be applied directly or indirectly for any purposes other than those of the life insurance business of the insurer. " Section II (c) then provides for keeping a revenue account in form D of the Third Schedule in respect of each insurance business for which separate account was required to be kept under section 10(1). Regulation 1 of of the Third Schedule provides that form D as set out in is appropriate for life insurance business. A perusal of form D shows what items have to be entered on the ,receipts side of the form and these items are: premiums of an kinds, consideration for annuities, interest, dividends and rents (obviously from assets of the life insurance fund); regulation fees and other income. It is thus clear that the revenue account on the receipt side mainly has income from premiums and income arising 479 out of 'Investments from life fund and this forms the main basis of the life insurance fund. On the expenditure side of form D there is provision for claims under policies, annuities, surrenders, bonuses in cash, bonuses in reduction of premiums, expenses of management (i.e. salaries etc., travelling expenses, directors ' fees, auditors ' fees, and charges for advertisements, printing and stationary, other expenses of management, rents for offence belonging to and occupied by the insurer, rent of other offices kept by the insurer), bad debts and other expenditure. Thereafter a balance has to be struck and this balance is the balance of the life insurance fund. This balance is arrived at after taking into account the balance of the fund at the beginning of the year and after making adjustments with respect to profit and loss and transfers from appropriation account. It is this balance which goes into the balance sheet form A provided in the First Schedule of the as life insurance fund and includes as provided in section 10(2) the deposit made by the insurer in respect of life insurance business. There is no doubt therefore that the words "life insurance fund" under the have got the meaning assigned to it under section 10(2) read with section 11 and form D of the Third Schedule. It is equally clear that all the assets of an insurance company doing life insurance business do not form part of the life insurance fund, for example, if the insurance company has got share capital that is not part of the life insurance fund even though the deposit required by law to be made for life insurance business is part of the fund. So far therefore as section 10(2), section 1 1 and form D are concerned, life insurance fund has a definite meaning. The working of a life insurance company is in some respects different from that of ordinary companies inasmuch as it is not open to a life insurance company to distribute dividends unless there is surplus computed under the . This surplus is determined thus: First of all the life insurance fund as disclosed by revenue account in form D is found out. Then the valuation of the policies in force as on a certain date is determined by actuarial valuation which has to be made at least once in three years under section 13(1) of the . After valuation of the policies of different kinds they are grouped under different heads and their summary is set out in form H of the Fourth Schedule. Form 1 of the said Schedule provides for determining the surplus or deficit. This form is known as valuation balance sheet and the surplus or deficit is the difference between net liability in business as shown in form H and the life insurance fund as shown in balance sheet form A. Surplus will only result if the balance of life insurance fund is greater than the net liability under form H. Where however the balance of life insurance fund is less than the net liability under form H, there will be a deficiency and not surplus. Section 49(1) of the insurance Act then provides that no amount of the life insurance fund will be used to pay any dividend to share holders or any bonus to policy holders or for making any payment in service of any debenture, unless the valuation balance sheet in form 1 of the Fourth Schedule 480 shows a surplus. It is further provided that out of the surplus only 71 per centum shall be allocated to or reserved for shareholders with the consequence that the balance of 92 1/2 per centum of the surplus remains in the fund for policyholders or may be allocated as bonus to policyholders. The life insurance find as defined in section 10(2) is an absolute security of the life policy holders and cannot be used in any manner except in accordance with the provisions to which we have already referred. Thus the words "life insurance fund" have a definite meaning under the under section 10(2), read with section 1 1 and form D of the and the words "surplus" and "deficiency" have also special meaning appearing from a combined reading of section 13 of the and form H and form 1 of the Fourth Schedule. The next question is whether the words "life insurance fund" have any other meaning under the . These words appear in a number of provisions of that Act. It is not necessary however to refer to all of those provisions for it is not in dispute that in most of the provisions the words have the meaning assigned to them under section 10(2) of the . But three provisions have been specifically brought to our notice where it is said that the words have a different meaning. The first is section 56 which deals with winding up of insurance companies. In sub section (2) thereof reference is made to surplus of assets over liabilities and how such surplus which is called prima facie surplus in the sub section is to be dealt with. It will however be seen that the sub section does not use the words "life insurance fund" when speaking of prima facie surplus which is the difference between all assets and all liabilities. But it is urged that the marginal note to the section which is in these words "application of surplus assets of life insurance fund in liquidation or insolvency" shows that for the purpose of this section, the words "life insurance fund" as used in the marginal note may have a different meaning. We are however of opinion that this is not so. Sub section (2) after speaking of prima facie surplus, which is equal to total assets minus total liabilities, provides how the prima facie surplus is to be dealt within winding up proceedings. The sub section provides that this prima facie surplus would be divided into two parts and one part would be in proportion to the profits of the insurer allocated to policy holders. This part will naturally be determined with respect to form 1 of the Fourth Schedule which deals with life insurance fund and surplus or deficiency. The sub section thus provides that out of the prima facie surplus a certain amount will be deducted in proportion to the profit allocated to the policy holders, and remaining will be the amount which may go to shareholders in winding up. Therefore as we read sub section (2) we find that it deals with entire assets and these entire assets will certainly include the life insurance fund. The marginal note indicates how out of the prima facie surplus indicated in sub section (2) the surplus in the life insurance fund as arrived at in form shall be used. The argument that the words "life insurance fund" in 481 section 56(2) has a different meaning therefore has no force for two reasons. In the first place the section does not use the words "life insurance fund" and in the second place when the marginal note refers to surplus assets of life insurance fund it means in reality the surplus to be found in form 1, for the prima facie surplus will include that. We cannot therefore accept the contention that for the purposes of section 56(2) the words "life insurance fund" have a different meaning in view of the marginal note of section 56. The next section to which reference is made in this connection is section 58(3). Section 58 deals with schemes for partial winding up of insurance companies, i.e. winding up of one kind of business while another kind of business goes on. Section 58(3) provides that the, provisions of this Act relating to valuation of liabilities of the in , surer in liquidation and insolvency and to the application of surplus assets of the life insurance fund in liquidation or insolvency shall apply to the winding up of any part of the affairs of the company. It is argued that the words "life insurance fund" here are used in a different sense . We are of opinion that this is not so. Sub section (3) of section 58 has to be read along with section 56 and in particular with Sub section (2) thereof and as we have already indicated the words "life, insurance fund" in the marginal note of section 56 have no different meaning from that to be found in section 10(2) the same applies to the use of the words "life insurance fund" in section 58(3) mutates mutandis. Lastly reference was made to regulation 7 of of the First Schedule, which provides for a certificate that no part of the assets of the life insurance fund has been directly or indirectly applied in contravention of the provisions of the relating to the application and investment of life insurance funds. It is urged that the use of the plural suggests that a different meaning is to be given to the words "life insurance fund" here. We are unable to agree with this contention either. The use of the words "life insurance funds" in plural is merely due to the exigencies of grammar in this provision and does not mean that the words have a meaning different from that assigned to them in section 10(2) to which we have already referred. We must therefore reject the contention on behalf of the appellant that the words "life insurance fund" have any meaning other than that assigned to them in section 10(2) of the so far as that Act is concerned. Reference is then made to section 27(1) of the which requires that every insurer shall invest and at all times keep invested assets equivalent to not less than the sum of the amount of his liabilities to holders of life insurance policies in India on account of matured claims and the amount required to meet the liability on policies of life insurance maturing for payment in India subject to certain deductions. It is urged that this provision lays down that an insurer is required to keep certain sums invested to meet his liabilities mentioned therein and this shows that the entire assets of the insurer are security for the policy holders. It is true that this provision requires an insurer to keep certain assets invested and those 482 have to be equal to his liabilities on policies matured and policies yet to mature. This provision is for the protection of the policyholders ' interest. It has however in our opinion nothing to do with the life insurance fund as such. What in fact it provides is that when the life insurance fund shows a deficit in form it would be the duty of the insurer to see that he has further assets to cover the deficit, and that these assets are always kept invested in accordance with the ; but the section does not provide that the assets brought in to cover the deficit would become part of the life insurance fund. It is not in dispute that there is no other provision in the which requires that whenever. the life insurance fund is in deficit the insurer must put sufficient money in that fund itself to 'cover the deficit. It is true that form D of the Third Schedule includes an item "other income" but that does not mean that any sum kept invested by an insurer for the purposes of section 27(1) in order to cover the deficit in the life insurance fund becomes part of that fund. Note (e) which appertains to "other income" of the said form makes it clear that all the amounts received by the insurer directly or indirectly whether from his head office or from any other source outside 'India shall also be shown separately in the revenue account except such sums as properly appertain to the capital account. Therefore sums invested for purposes of section 27(1) of the do not necessarily form part of the life insurance fund. It is only such moneys which are included in form D and which are not of capital nature that form part of the life insurance fund. In the present case it is not in dispute that the business of the respondent 1 in India always had shown a deficit in form . It is also not in dispute that in order to meet that deficit as required by s, 27(1), the respondent took advantage of section 27(6) which provides that the assets required by this section to be held invested by an insurer incorporated or domiciled outside India shall subject to certain exceptions be held in India and all such assets shall be held in trust for the discharge 'of the liabilities of the nature referred to in sub section (1) and shall be vested in trustees resident in India and approved by the Central Government and the instrument of trust under this sub section shall be executed by the insurer with the approval of the Central Government and shall define the manner in which alone the subject matter of the trust shall be dealt with. Such an instrument of trust was executed by the respondent and the State Bank of India was the trustee of the fund required to be kept under section 27(1) read with section 27(6). But that in our opinion did not make the whole of this trust fund part of the life insurance fund as defined in section 10(2). The money required to cover the deficit in form I could only become part of the life insurance fund if that was included in the revenue account form D and in such a case there would then be no deficit left in the life insurance fund. It is not ill dispute that in this case funds brought in by the respondent from outside to cover the deficit were never put in the revenue account and were never made part of the life insurance fund, though 483 they remained vested in the trustee for the purpose of section 27(1) read with section 27(6). The appellant 's contention always was that the case of the respondent, for purpose of compensation, was covered by part B of the First Schedule to the Act and not by its Part A, and this was because there was a deficit in form I submitted by the respondent throughout its working. It appears that in spite of this deficit in the Indian working of the respondent, the respondent used to pay bonuses to its policy holders out of its global surplus and these payments were made in cash. Even so the appellant insisted and rightly that as form I showed deficit at the relevant time the respondent was not entitled to take advantage of Part A. of the First Schedule to the Act for purposes of compensation. In such circumstances it seems strange when admittedly there was always a deficit in form I submitted by the respondent in connection with its. Indian. business that the appellant should now say for the purpose of compensation that there is a surplus disclosed by the business of the respondent, 96 per centum of which would go to the appellant under cl. (d) of the aforesaid 4th paragraph, We are. therefore of opinion that the appellant cannot take advantage of section 27(1) and ask us to hold that all the funds which are mentioned in.s. 27(1) to be kept invested are part of the life insurance fund. Part B applies to. ' two kinds of insurance companies viz., those which had deficits and those which had surplus but had not distributed it at the relevant time. It is the latter class of companies that cl. (d) is really meant to cover. As we have already. said section 27(1) has nothing to do with the life insurance fund and is meant only as a safety device for policyholders, particularly in cases where there is deficit in the life insurance fund. : But where such deficit is made up for the purpose of section 27(1), the extra amount so invested by the insurer to make up the deficit does not automatically become part of the life insurance fund unless it is put through the revenue account form D. That was admittedly never done in this case and form I always showed a deficit in the case of the respondent. Section 27(1) therefore does not help the appellant, for it is not in dispute that an insurer is not bound to make up the deficit by putting money in the life insurance fund though he is bound to keep assets invested to make up the deficit; but such assets may be kept outside the life insurance fund. Now we come to the last question whether there is anything in the Act which requires that we should give a different meaning to the words "life insurance fund" in cl. (d) of the aforesaid 4th paragraph. We have already referred to section 2(10) of the Act which lays down that all other words and expressions used in the Act but not defined and defined in the shall have the meanings respectively assigned to them in that Act. Prima facie, therefore, the words "life insurance fund" used in cl. (d) of the aforesaid 4th paragraph have the same meaning as in the , and the question is whether the context of the Act requires that we should give a different meaning to these words. We are of opinion 484 that there is nothing in the context of the Act which requires that a different meaning should be given to these words. If anything, the Act shows that these words have the same meaning in cl. (d) of the aforesaid 4th paragraph as in the . In the first place we have to see what is the reason for the provision in cl. (d) of the aforesaid 4th paragraph. We have no doubt that the provision in cl. (d) is related to the provision in section 49(1) of the . We have already referred to that section and it requires that 921% of the surplus in form I shall be kept for the policy holders. Where therefore there is surplus in form 1, 921/2 per centum thereof is meant for the policy holders under this provision. Secondly when transfer of life insurance business from the life insurance companies to the Life Insurance Corporation took place a provision had to be made to carry out the effect of section 49(1) in connection with the transfer. That provision is to be found in cl. It lays down that where there is a surplus in the life insurance fund as a result of the actuarial valuation of policy liabilities made under cl. (b) of the aforesaid paragraph 4, 96 per centum of such surplus shall be shown as a liability. This means that just as under section 49(1), 921 per centum of the surplus in form I was meant for the policy holders so in the case of transfer, 96 per centum or that surplus shall go to the Life Insurance Corporation in order to meet the liabilities arising under section 49(1) of the for past surplus and to that extent the compensation to be paid to the insurance company from which the Life Insurance Corporation was taking over business would have to be reduced. This was with reference to the past and could not be with reference to the future, for so far as the future was concerned, the Life Insurance Corporation alone was responsible. But if there was a deficit in form I of the insurance company which was being taken over by the Life Insurance Corporation there could be no allocation to the policy holders under section 49(1) of the and there would be no liability for the past. So there would be no liability for the past under cl. (d) on the insurer whose business was being taken over by the Life Insurance Corporation. In the present case admittedly there was no surplus in form I in the case of the respondent and therefore there would be no liability on the respondent under cl. (d) of the aforesaid 4th paragraph. This in our opinion is the rationale behind the provision in cl. (d) and as there was always a deficit in connection with the working of the respondent, there could be no liability on the respondent under cl. But apart from this rationale behind cl. (d) we find that the language of Part A and Part B of the First Schedule relating to principles for determining compensation also leads to the same inference. Part A provides that compensation to be given to an insurer having a share capital on which dividend or bonus is payable who has allocated as bonus to policy holders the whole or any part of the surplus as disclosed in the abstracts prepared in accordance with of the Fourth Schedule to the in 485 respect of the last actuarial investigation relating to his controlled business as at a date earlier than January 1, 1955 shall be computed under that part. Clearly therefore this provision in Part A refers to surplus to be found by looking at form of the Fourth Schedule to the . Part B of the First Schedule to the Act then speaks of compensation to be given to an insurer having a share capital on which dividend or bonus is payable but who has not made any such allocation as is referred to in Part A. This immediately brings in the opening words of Part A and shows that Part B applies also to those insurers who having a surplus in form I have not allocated the whole or any part of such surplus to policyholders. The surplus in form I is arrived at as already indicated when the life insurance fund is larger than the liabilities on the policies still to mature. Clearly, Part B provides how compensation is to be paid to companies who had no surplus as disclosed in form 1 of the Fourth Schedule to the or who if they had any surplus in that form had made no allocation to policy holders. Therefore when cl. (d) of the aforesaid 4th paragraph speaks of the life insurance fund being in surplus that surplus has to be determined in accordance with form 1 of the Fourth Schedule to the subject to modifications indicated in Part B in the matter of valuation under form H and not in the manner suggested on behalf of the appellant. The word "surplus" in cl. (d) cannot have a meaning different from what it has in the opening words of Part B which come therein from Part A. The context therefore instead of showing that there is any other meaning of the words "life insurance fund" in cl. (d) shows that they have the same meaning in that clause as in form 1 of the Fourth Schedule to the . Another reason which points to the same conclusion,namely, that the words "life insurance fund" in cl. (d) have the same meaning as in form 1 of the Fourth Schedule to the , is to be found in section 35(1) and (2) of the Act. Section 35(1) permits a foreign insurer to repatriate certain assets. It says that an insurer incorporated outside India may, before the appointed day, make an application to the Central Government stating that among the assets appertaining to the controlled business of the insurer there are assets brought into India by him for the purpose of building up his life insurance business in India which should not be transferred to and vested in the Life Insurance Corporation. On receipt of such an application, the Central Government has to determine the value of the assets of the insurer appertaining to his controlled business in existence on December 31, 1955 in accordance with the provisions contained in paragraph 3 of Part B of the First Schedule to the Act and deduct therefrom the total amount of the liabilities of the insurer appertaining to his controlled business as on December 31, 1955 computed in accordance with the provisions contained in the Second Schedule to the Act; and if there is any excess, the Central Government may direct that such assets equivalent in value to the excess shall not be transferred to or vested in 486 the Life Insurance Corporation. It is obvious from these provisions that where the legislature intended to refer to all the assets and liabilities it said so in terms and did not use the words "life insurance fund". The use of the words "life insurance fund" in cl. (d) of the aforesaid 4th paragraph therefore must have the special significance assigned to these words in the and cannot be equated to the difference between the total assets and liabilities apart from liabilities towards policies yet to mature. Besides we are of opinion that if the words "life insurance fund" in cl. (d) are to be given the meaning for which the appellant is contending there will be a clear inconsistency between cl. (d) and it. 35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound to make an application under section 35. Now take the case of the respondent. It is not in dispute that the respondent has taken away excess assets with the permission of the Central Government under section 35, to the tune of about rupees fifteen or sixteen lakhs. But if the respondent had not, chosen to make the application under section 35, all Ms assets would have to be considered under Part B relating to compensation. If that Was so, according to the contention put forward on behalf of the appellant as to the meaning of the words "life insurance fund", the total compensation under Part B of the First Schedule to 'which the respondent would have been entitled, would be Rs. 1.74,408. This means that as by making an application the respondent was able to take away Rs. 15,73,540 under section 35(2) he would further get Rs. 1,11,466 as compensation under Part B of the First Schedule to the Act. But if he had not made the application under section 35, he would only get Rs. 1,74,408 in all. There is no doubt that the legislature could not have intended such a result, namely, that the insurer should get away with a much larger amount if he applies under section 35 and should get a much smaller amount if he does not choose to apply under section 35. On the other hand, if we accept the contention of the respondent as to the meaning of the words " 'life insurance fund" it would make no difference to the compensation whether the insurer applies under section 35 or not. We must hold that the legislature intended that in either case an insurer would get the same amount whether it comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. If the words "life insurance fund" are interpreted to mean what the respondent says, the result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B: total Rs. 43,60,198. If it does not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198. This clearly shows that the legislature intended the words "life insurance fund" to mean what they meant in section 10(2) for that would give in our opinion the same result whether an insurer applied under section 35 or not. 487 We have already said that cl. (d) provides for past surplus in form 1, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer. So far as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with profits policies with the result that the liability which the insurer whose business is being taken over has to bear with respect to with profits policies is higher. The appellant apparently claimed an amount under cl. (d) on the ground that at future valuation the bonus payable to the policy holders would be reduced. Now cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provision for the future in respect of profit policies is to be found in cl. The appellant therefore cannot lay claim to anything under cl. (d) unless there were surpluses in the past in form 1 of the Fourth Schedule to the . The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words "life insurance fund", particularly with respect to with profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with profit policies under cl. (b) of the 4th. paragraph of Part B of the First Schedule to the Act. Lastly there will be another curious result if the words "life insurance fund" in cl. (d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form 1 of the Fourth Schedule to the . If its life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 % of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in section 10(2) of the read with section 1 1 and form D of the Third Schedule to the . In this view of the matter, the appeal must fail. We therefore dismiss the appeal with costs to the respondent. The respondent will be at liberty to withdraw the money deposited in this Court towards compensation. Appeal dismissed. [/INST]The business of the assessee firm, carrying on land development business was sold as a going concern to a company promoted by the assessee s partners. The purchase price included sums for the value of land, goodwill, etc. The amount shown as the value of the goodwill v:as sought to be assessed to income tax on the grounds (i) that the assessee 's business was purely one of buying and selling land and (ii) the amount was profit attributable to the sale of land which was the stock in trade of the assessee. In appeal to this Court. HELD: On the facts of this case it could not be said that the assessees were carrying on the business of purely buying and selling land. They were engaged in buying land, developing it and then selling it. The sale was the sale of the whole concern and no part of the slump price was attributable to the cost of the land. If that was so, no part of it was taxable. [617H 618A, E] Commissioner of Income tax, Kerala vs West Coast Chemical and Industries Ltd. and Doughty vs Commissioner of Taxes (1927) A.C. 327, applied. In the case of a concern carrying on the business of buying land, developing it and the selling it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land was stated did not lead to the conclusion that part of the slump price was necessarily attributable to the land sold. There was no evidence that any attempt was made to evaluate the land on the date of sale. As the assessees were transferring the concern to a company. constituted by the assessees themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. [618B D] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 2981 of 1987. From the Judgment and Order dated 23.1.1985 of the Allahabad High Court in Civil Revision No. 155 of 1984. Anil Dev Singh and Mrs. Shobha Dikshit for the Appellants. Anil Kumar Gupta for the Respondent. The Judgment of the Court was delivered by RANGANATHAN,J. Special leave granted. This is an appeal to this Court from the judgment of a Single Judge of the Allahabad High Court in a civil revision petition filed by 952 the appellant (C.R.P. 155 of 1984). The result of the judgment was to restore a decree passed against the appellant by the trial court in a suit for eviction instituted by the respondent in 1980. The main ground on which the appellant had resisted the suit was that the suit was barred by the provisions of the Uttar Pradesh Public Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (which we shall hereinafter briefly refer to as 'the Rent Act '). It is the correctness of this ground of defence that it in issue in this appeal. The appellant, the State of Uttar Pradesh, took on lease a premises at Barabanki belonging to the respondent for the purpose of running a Laprosy Training Centre. The respondent was thus the landlord, and the appellant the tenant, in respect of the premises within the meaning of section 3(a) of the Rent Act. This Act has been enacted "to provide, in the interests of the general public, for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith. " Section 20 of the Act bars the institution of a suit for the eviction of a tenant, notwithstanding the termination of his tenancy, except on the grounds specified in sub section (2) of that section but none of these grounds were pleaded by the respondent. section 21 of the Act enables a prescribed authority to order the eviction of a tenant in two situations, subject to certain conditions and limitations. These situations are: (a) where the landlord requires the premises for his own use and (b) where, the building being in a dilapidated condition, he desires to demolish the same and put up a new construction. These situations also do not prevail here. The Landlord, however, gave a notice of termination of tenancy under section 106 of the Transfer of Property Act and filed a suit for recovery of possession. The appellant claimed that the suit was not maintainable and that the respondent 's remedy, if any, was only to seek eviction in the circumstances and in the manner outlined in the Act. The respondent sought to overcome this hurdle by contending that the premises in question are not one of the classes of buildings covered by the Rent Act. In support of this contention, he relied upon an exclustion clause incorporated in section 2(1)(a) of the Act. Since the whole case turns on a proper interpretation of this clause and since the clause has undergone changes from time to time, it is necessary to refer to these in some detail to facilitate a proper appreciation of the stands of the parties. (a) In the Rent Act, as originally enacted and brought into force 953 on 15.7.1972, this sub section ran thus: "Nothing in this Act shall apply to (a) any building belonging to, or vested in, the Government of any State or any local authority; or (b) any tenancy created by grant from the State Government or the Government of India in respect of a building taken on lease or requisitioned by such Government." (b) U.P. Act No. 28 of 1976 amended section 2(1) to substitute new clauses in place of the above clauses. The amended sub section, insofar as is relevant for our present purposes, reads thus: "Nothing in this Act shall apply to (a) any public building; or (b) any building belonging to or vested in a recognised educational institution, the whole of the income from which is utilised for the purposes of such institution; (c)x x x x (d)x x x x (e)x x x x (f)x x x x A definition of 'public building ' was inserted in section 3 which reads: "(o) 'public building ' means any building belonging to or taken on lease or requisitioned by or on behalf of the Central Government or a State Government (including the Government of any other State) and includes any building belonging to or taken on lease by or on behalf of any local authority or any public sector corporation". These amendments were made effective from 5.7.1976. 954 (c) It appears that the above provisions were sought to be amended by U.P. Ordinance No. 11 of 1977 (promulgated on 27.4.1977) with retrospective effect from 5.7.1976 by substituting the following as clause (a) of section 2(1) of the Rent Act: "2(1)(a) any building of which the Government or a local authority or a public sector Corporation is the landlord." section 3(0) was left unamended. However, the above Ordinance was allowed to lapse. Thus the amendment had become inoperative by the time the suit in the present case was instituted. (d) The next amendment of the Rent Act was by U.P. Ordinance No. 28 of 1983 promulgated on 18.5.1983. This revived the amendment made by the 1977 Ordinance which had been allowed to lapse. This time this amendment was not allowed to lapse on the expiry of the ordinance but was kept alive by five successive Ordinances: No. 43 of 1983 dated 12.10.83, No. 6 of 1984 dated 24.3.84, No. 8 of 1984 dated 7.5.84, No. 20 of 1984 dated 22.10.84, and finally No. 9 of 1985 dated 26.4.85. All these amendments were made effective from 18.5.1983 in so far as the provision presently under consideration is concerned. The last of these, it may be noted, was promulgated subsequent to the judgment of the High Court presently under appeal. (e) Finally, the U.P. Legislature enacted Act No. 17 of 1985 on 20.8.85 "regularising" the spate of legislation by ordinances. By sections 1 and 2 of this Act, the amendment made to section 2(1)(a) by the 1977 Ordinance and kept alive by the Ordinance of 1983 and 1984 was made effective from 18.5.1983. In this legislative background, the appellant contended, successfully before the Additional District Judge but unsuccessfully before the trial court and High Court, that the premises in question was not a 'public building ' within the meaning of section 3(o) read with section 2(1)(a) of the Rent Act, as amended from 5.7.76 and, hence, the respondent 's remedy for eviction of the appellant was not by way of suit in a civil court. What is the correct interpretation of this clause? This is the question before us. We have set out above the definition of 'public building ' in section 3(o) after the 1976 amendment. The language of this definition is very wide. It takes in three categories of buildings: (i) buildings belonging to (that is, owned by) the Central or State Government; (ii) 955 buildings (not belonging to the Government) but taken on lease or requisitioned by it or on its behalf and (iii) buildings belonging to or taken on lease by or on behalf of any local authority or any public sector corporation. In the present case, the building in question is one taken on lease by the State Government and so it falls squarely within the definition of 'public building '. It is, therefore, exempt from the application of the Act by reason of section 2(1) as it stood at the relevant time. It would follow, therefore, that the respondent 's remedy to recover possession lay under the general law and had to be enforced by a suit for recovery of possession which is exactly what he has done. Prima facie, therefore, the trial Judge and the High Court were right in decreeing his suit. It is, however, contended on behalf of the appellant that section 3(o) should not be given such a wide meaning. The argument runs thus: The intention of the Legislature was to exclude from the purview of the Rent Act only buildings in respect of which the Government was either the owner or the landlord. This is clear from the previous history as well as the subsequent legislations. U.P. Act No. 3 of 1947 (which preceded the 1972 Act) was amended by Ordinance No. 5 of 1949 with effect from 26.9.49 to exclude from its purview "any premises belonging to the Central or State Government and any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government". The language section 2(1)(a) of the Rent Act, as it stood before its amendment in 1976, left no doubt in any one 's mind that the legislature intended only to exclude buildings belonging to the Government or any local authority and those taken on lease or requisitioned by Government and rented out by it to others. The only object of the 1976 amendment was to extend the above exclusion also in buildings owned or let out by local authorities and public sector corporations. This was sought to be done by providing that the Act would not apply to 'public buildings ' and inserting a definition of that expression in section 3(o). That definition was, no doubt, phrased somewhat broadly. But, having regard to the previous history as well as the language of the subsequent legislation already referred to above, there can be no doubt that the legislature never intended to exclude the operation of the Rent Act vis a vis premises of which the Government (and, hereinafter, this expression will take in also a reference to local authorities and public corporations) was neither the owner nor the landlord but merely a tenant. Support of the above restricted construction is also sought from 956 the phraseology of section 21(8) of the Rent Act. As has been mentioned earlier. section 21 empowers the prescribed authority, on an application from a landlord, to evict a tenant on two grounds: (a) need of the premises by him for his self occupation; and (b) need to demolish the building and reconstruct it. Sub section (8) enacts a restriction in respect of the first of these grounds. It reads: "(8) Nothing in clause (a) of sub section (a) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub section (1) is applicable. " It is submitted that this sub section places it beyond doubt that the Act does apply also to buildings in which a State Government, local authority, public sector Corporation or recognised educational institution is a tenant and proceeds to restrict the scope of an application under section 21 of the Act in such cases. It is pointed out that, if the definition in section 3(o) is given a wide meaning so as to exclude from the application of the Act even buildings in which these bodies are mere tenants, the result would be to render section 21(8) redundant and otiose. Such a construction of the statute, it is submitted, should not be favoured. The above line of argument found favour with a Full Bench of the Allabahad High Court dealing with a batch of petitions filed by a number of public sector corporations resisting suits for eviction instituted against them: Punjab National Bank vs Suganchand, This Full Bench decision was rendered on 29.11.84 but was apparently not available to the learned Judge who decided the present case on 23.1.85. Learned counsel for the appellant urges that we should approve of the Full Bench decision and reverse the judgment under appeal. We are unable to accept the appellant 's contention. The interpretation placed by the Full Bench of the High Court on section 3(o) equates the position under the statute after the amendment of 1976 to the position both as it stood prior to the 1976 amendment and also as it 957 stood after the 1983 Ordinance. Such an approach fails to give any effect at all to the change in language deliberately introduced by the 1976 amendment. No doubt, prior to the amendment, only buildings of which the Government was owner or landlord were excluded from the Act. But the Legislature clearly intended a departure from the earlier position. If the intention was merely to extend the benefit to premises owned or let out by public corporations, it could have been achieved by simply adding a reference to such corporations in section 2(1)(a) and (b) as they stood earlier. Reading section 2(1)(a) & (b) as they stood before amendment and the definition in section 3(o) side by side, the departure in language is so wide and clear that it is impossible to ignore the same and hold that the new definition was just a reenactment of the old exemption. The exclusion was earlier restricted to buildings owned by the Government and buildings taken on lease or requisitioned by Government and granted by it by creating a tenancy in favour of some one. The amendment significantly omitted the crucial words present in the earlier legislation which had the effect of restricting the exclusion to tenancies created by the Government, either as owner or as landlord. Full effect must be given to the new definition in section 3(o) and to the conscious departure in language in reframing the exclusion. The subsequent legislation also reinforces the same conclusion. The 1976 amendment had come up for judicial interpretation and certain decisions referred to in the Full Bench decision as well as the judgment presently under appeal had given the above literal interpretation to section 3(o). If they had run counter to the rule legislative intent, one would have expected the repeated Ordinances since 1983 and the ultimate Amendment Act of 1985 to have placed the position beyond doubt by a retrospective amendment. Though the Ordinance of 1977 made its amendment retrospective from 5.7.76, these later amendments are all specifically given effect to from 18.5.1983. The effect of the decisions rendered remained untouched till then. The fact that the the 1976 amendment marked a departure from the more restricted exclusion available earlier and the fact that the said restriction exclusion was again restored with effect only from 18.5.1983 militate against the correctness of adhering to this narrow interpretation even during the interregnum from 5.5.1976 to 18.5.1983. It may now be considered whether the above interpretation renders section 21(8) redundant. As pointed out by the Full Bench of the High Court, not much thought has gone into the framing of this subsection which has failed to notice that clauses (ii) and (iv) of the 958 Explanation to sub section (1) which are referred to in it, had been omitted by an earlier clause of the same section of the same Act. The Ordinance of 1977 sought to remedy this position by deleting the words "unless the Prescribed Authority is satisfied . is applicable" used in the sub section but this Ordinance was allowed to lapse and the subsequent Ordinances and Amendment Act paid no heed to section 21(8). Nevertheless, despite this clumsy drafting, one would certainly hesitate to give an interpretation to the definition clause in section 3(0) which may have the effect of rendering this sub section otiose. But luckily that is not the position. As pointed out by counsel for the respondent, sub sections (1), (1A) and (8) of section 21 have to be read together. Though section 2(1)(a) excludes public buildings which we have interpreted to include buildings in which the Government is only a tenant section 21(1A) incorporates an exception to this exclusion. "Nothwithstanding anything contained in section 2", it permits an application for eviction being moved under section 21(1)(a) of the Act by a landlord against any tenant but in the limited circumstance set out in that sub section viz. that the landlord has been in occupation of a public building but had to vacate it as he had ceased to be in the employment of the Government, local authority or Corporation. In other words, the landlord of a building in which the Government is a tenant could have moved an application under section 21(1)(a) read with section 21(1A). This is what is prohibited by section 21(8) absolutely in view of clauses (ii) and (iv) of Explanation 1 to sub section (1) being non existent. section 21(8) makes it clear that while a landlord who is compelled to vacate a public building occupied by him due to cessation of his employment can proceed under the Act to evict any tenant occupying his property so that he may use his own property for his residential purposes, he will not be able to do so where his tenant is the Government, a local authority or a public Corporation. Thus read,s. 21(8) does not become otiose or redundant by accepting the wider interpretation of section 3(o). This objection of the appellant is not, therefore, tenable. The Full Bench of the High Court has referred to one general aspect which appears to have considerably influence it in preferring a narrower interpretation of section 3(o). It referred to the increasing difficulties faced even by Government and other public bodies in securing proper accommodation for their functioning and the nearimpossibility, even for them, of securing alternative accommodation at comparative and non exorbitant rates once they are compelled to vacate their existing tenancies. The Court posed to itself the question whether the Legislature can be said to have intended to exclude them from the benefits of the Act and throw them open to eviction by suits 959 following a mere termination of tenancy by notice section 106 of the Transfer of Property Act, at the mere whim and caprice of their landlords. This, the Court thought, was unlikely particularly when, prior to the Amendment Act of 1976, as well as subsequent to 1983, they could have been evicted only on one or other of the grounds available under section 20 or section 21 of the Act and more so because the Amendment manifests an intention to extend to public corporations benefits previously available only to a Government and to a local authority. The object of the exclusion in section 2(1)(a), it is said, was to remove, in respect of buildings where the government or local authority was the landlord either as a owner or principal lessee or requisitioning authority the shackles imposed on other landlords but not to deprive these bodies, when they are mere tenants, of the protection available to other tenants under Act. Having regard to these considerations, the Full Bench of the High Court has invoked a line of decisions of this Court and others which advocate that, in certain situations, importance should be attached to the "thrust of the statute" rather than to the literal meaning of the words used to justify their refusal to give the words of section 3(o) full effect. It is true that there are situations in which Courts are compelled to subordinate the plain meaning of statutory language. Not unoften, Courts do read down the plain language of a provision or give it a restricted meaning, where, to do otherwise may be clearly opposed the object and scheme of the Act or may lead to an absurd, illogical or unconstitutional result. But we think that this mode of construction is not appropriate in the context of the present legislation for a number of reasons. In the first place, such an interpretation does not fit into the legislative history we have traced earlier. It does not explain why the legislature should have, while enacting the 1976 amendment, omitted certain operative words and used certain wider words instead. As we have pointed out earlier, if the idea had only been to add to the exclusion buildings owned or let out by public sector corporations, that result could have been achieved by a minor amendment to section 2(1)(a) as it stood earlier. A conscious and glaring departure from the previous language must be given its due significance. Secondly, the Rent Act is a piece of legislation which imposes certain restrictions on a landlord and confers certain protections on a tenant. It could well have been intention of the legislature that the Government, local bodies and public sector corporations should be free not only from the restrictions they may incur as landlords but also that they need not have the protection given to other ordinary tenants. To say that the legislature considered the Government qua landlord to be in a class of its own and 960 hence entitled to immunity from the restrictions of the Act but that, qua tenant, it should be on the same footing as other tenants will be an interpretation which smacks of discrimination. The legislature could have certainly intended to say that the Government, whether landlord or tenant, should be outside the Act. Thirdly, while it is true that the result of the interpretation we favour would be to facilitate easy eviction of Government, local authorities and public corporations, there is nothing per se wrong about it because, with their vast resources or capacity augment their resources, these bodies would not be in as helpless a position as ordinary tenants for whose benefit the legislation is primarily intended. On the other hand, the ultimate result of the interpretation accepted by the Full Bench will be to practically deny a landlord, who has given his premises on rent to these bodies, any remedy to get back possession of his premises. The contingencies for which eviction is provided for in section 20 are hardly likely to arise in the case of such tenants; section 21(1)(a) is taken out by s.21(8); and, virtually, the only ground on which eviction can be sought by a landlord of such a building against such a tenant, on the interpretation urged by the petitioner, would be the one contained in section 21(1)(b). It is debatable whether the legislature could have contemplated such a situation either. Fourthly, in this case, the legislature has applied its mind to the situation more than once subsequently. If its intention in carrying out the amendment had been misunderstood by the High Court or found ambiguous, the legislature was expected to rectify the situation by a piece of retrospective or declaratory legislation. The 1977 Ordinance was, but the later Ordinances and the 1985 Act, are not, of this nature. They neither are, nor purport to be, declaratory or retrospective from 5.7.76. At least, if the 1985 Act had been made retrospective from 5.7.76, one could have thought it was a clarificatory piece of legislation. But the Legislature has advisedly given these enactments effect only from 18.5.1983. This means that the amendment of 1976 was intended to be effective between 5.7.75 and 18.5.83 and it also means that the amendment of 1983 onwards is not intended to be read back for that period. Lastly, in any event, the interpretation given by us will create no lasting difficulties for the Government and other organisations which are tenants only, since after 18.5.1983 they will be in a position to claim all the immunities available to other tenants under the Act. For the reasons discussed above, we overrule the decision of the Full Bench of the Allahabad High Court in Punjab National Bank vs Sugan Chand, on this point. In the result, this appeal is dismissed. We, however, make no order regarding costs. N.V.K. Appeal dismissed. [/INST]% large number of teachers working in the educational institutions governed by the Uttar Pradesh Intermediate Education Act, 1921, were appointed or promoted on an ad hoc basis. The question of regularisation of their services engaged the attention of the State Government and it was decided to amend the Act by an Ordinance. Section 16 GG was accordingly introduced on April, 21, 1977. The Ordinance was replaced by the Uttar Pradesh Education Laws Amendment Act, 1977. The appellant and respondent No. 1 were both appionted as Assistant Teachers in an Intermediate College with effect from July 8, 1967. Respondent No. 1 was promoted by the management as Lecturer in Hindi on an ad hoc basis with effect from March 1, 1976. The District Inspector of Schools approved of it on October 5, 1976. Subsequently on November 20, 1976 he again made an order promoting both the appellant and respondent No. 1 as Lecturers in Civics and Hindi respectively on an ad hoc basis. Their services came to be regularised by virtue of the new provision. section 16 GG, with effect from April 21, 1977. After their services were so regularised, dispute arose regarding the seniority. While the first respondent claimed seniority over the appellant on the basis of his appointment/promotion made on March 1, 1976, the appellant claimed that he being older than the first respondent was entitled to be treated as senior by virtue of the second part of clause (b) of regulation 3(1) of the Regulations framed under the Act. The District Inspector of Schools came to the conclusion that the fortuitous appointment/promotion of the first respondent on March 1, 1976 could not have any effect on the question of seniority between 1050 them, and held that since the appellant and the first respondent had been accepted to be promoted in substantive capacity on the same day, and since the appellant was older than respondent No. 1, the appellant should be considered as senior by virtue of the second sentence in clause (b) of regulation 3(1) of the Regulations. Aggrieved by the aforesaid decision the first respondent filed a writ petition before the High Court, which was allowed, the order of the Disctrict Inspector of Schools was set aside and it was declared that the first respondent was senior to the appellant on the ground that the first respondent had been promoted to the post of lecturer on March 1, 1976, pursuant to certain orders issued under the Act which continued to be in operation until section 16GG was brought into force. Allowing the appeal by Special Leave. ^ HELD: 1. The appellant is senior to the first respondent. [1056E] 2.1 What is crucial for the purposes of the case is the date from which the appellant and the first respondent should be deemed to be holding their posts in substantive capacity. Section 16GG of the Act clearly lays down that any teacher whose services are regularised should be deemed to have been appointed in a substantive capacity with effect from the date of its commencement. It does any say that the services of such teachers should be deemed to have been regularised with effect from the date from which they were continuously officiating in the post in question. The date of commencement of the section being April, 21, 1977 both the appellant and the first respondent, who were by then holding the posts of Lecturers on an ad hoc basis are to be deemed to have been appointed in a substantive capacity on the same date, that is, April 21, 1977. [1055G H; 1056A] 2.2 On the question of seniority, cl. (b) of Regulation (3)(1) of the Regulations provides that the seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade and if two or more teachers were so appointed on the same date seniorty should be determined on the basis of age. [1056C] In the instant case, the appellant is older in age than the first respondent. He should, therefore, be treated as senior to the first respondent by reason of the second sentence in cl. (b) of Regulations 3(1).[1056E F] 1051 3. The High Court omitted to consider the effect on the words 'with effect from the date of the commencement of this section ' in subs. (1) of section 16GG of the Act and also sub section (2) of that section which provides that every teacher deemed to have been appointed in a substantive capacity under sub s.(1) should be deemed to be on probation from the date of the commencement of the section. [1056B C] </s>

<s>[INST] Summarize the judgementAppeals 'Nos. 455 to 457 and 656 to 658 of 1957. Appeals from the judgment and order dated April 29, 1957, of the Bombay High Court in Misc. Applications Nos. 48 to 50 of 1957. G. section Pathak, section K. Kapur, P. N. Bhagwati and Ganpat Rai, for the appellant in C. A. No. 455 of 1957 & respondent in C. A. No. 656 of 1957. Sachin Choudhry, R. J. Joshi, J. B. Dadachanji, Rameshwar Nath and St N. Andley, for the appellants in C. As. Nos. 456 & 457 of 1957 and respondents in C. As. Nos. 657 & 658 of 1957. C. K. Daphtary, Solicitor General for India, G. N. Joshi, K. H. Bhabha and R. H. Dhebar, for respondent No. 4 in C. As. 455 to 457 of 1957 and appellant in C. As. 656 to 658 of 1957. March 28. The Judgment of the Court was delivered by DAS C. J. These six several appeals are directed against a common judgment and order pronounced on 36 282 April 29, 1957, by a Division Bench of the Bombay High Court in three several Miscellaneous Applications under article 226 of the Constitution, namely, No. 48 of 1957 filed by Shri Ram Krishna Dalmia (the appellant in Civil Appeal No. 455 of 1957), No. 49 of 1957 by Shri Shriyans Prasad Jain and Shri Sital Prasad Jain (the appellants in Civil Appeal No. 456 of 1957) and No. 50 of 1957 by Shri Jai Dayal Dalmia and Shri Shanti Prasad Jain (the appellants in Civil Appeal No. 457 of 1957). By those Miscellaneous Applications the petitioners therein prayed for an appropriate direction or order under article 226 for quashing and ,setting aside notification No. section R. 0. 2993 dated ]December 11, 1956, issued by the Union of India in exercise of powers conferred on it by section 3 of the Commissions of Enquiry Act (LX of 1952) and for other reliefs. Rules were issued and the Union of India appeared and showed cause. By the aforesaid judgment and order the High Court discharged the rules and dismissed the applications and ordered that the said notification was legal and valid except as to the last part of cl. (10) thereof from the words " and the action" to the words " in future cases " and directed the Commission not to proceed with the inquiry to the extent that it related to the aforesaid last part of cl. (10) of the said notification. The Union of India has filed three several appeals, namely, Nos. 656, 657 and 658 of 1957, in the said three Miscellaneous Applications complaining against that part of the said judgment and order of the Bombay High Court which adjudged the last part of el. (10) to be invalid. The (hereinafter referred to as the Act), received the assent of the President on August 14, 1952, and was thereafter brought into force by a notification issued by the Central Government under section 1 (3) of the Act. As its long title states, the Act is one " to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers ". Sub sec tion (1) of section 3, omitting the proviso not material for our present purpose, provides: The appropriate Government may, if it is of 283 opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the, People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly." Under sub section (2) of that section the Commission may consist of one or more members and where the Commission consists of more than one member one of them may be appointed as the Chairman thereof. Section 4 vests in the Commission the powers of a civil court while trying a suit under the Code of Civil Procedure in respect of the several matters specified therein, namely, summoning and enforcing attendance of any person and examining him on oath, requiring discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or officer, issuing commissions for examination of witnesses or documents and any other matter which may be prescribed. Section 5 empowers the appropriate Government, by a notification in the Official Gazette, to confer on the Commission additional powers as provided in all or any of the sub sections (2), (3), (4) and (5) of that section. Section 6 provides that no statement made by a person in the course of giving evidence before the commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement provided that the statement is 'made in reply to a question which he is required by the Commission to answer or is relevant to the subject matter of the inquiry. The appropriate Government may under section 7 issue a notification declaring that the Commission shall cease to exist from such date as may be specified therein. By section 8 the Commission is empowered, subject to any rules that may be made, to regulate its own procedure including the time and place of its 284 sittings and may act notwithstanding the temporary absence of any member or the existence of any vacancy among its members. Section 9 provides for indemnity to the appropriate Government, the members of the Commission or other persons acting under their directions in respect of anything which is done or intended to be done in good faith in pursuance of the Act. The rest of the sections aye not material for the purpose of these appeals. In exercise of the powers conferred on it by section 3 of the Act the Central Government published in the Gazette of India dated December 11, 1956, a notification in the following terms: MINISTRY OF FINANCE (Department of Economic Affairs) ORDER New Delhi, the 11th December, 1956 section R. O. 2993 Whereas it has been made to appear to the Central Government that: (1) a large number of companies and some firms were promoted and/or controlled by Sarvashri Ramakrishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, Shital Prasad Jain or some one or more of them and by others being either relatives or employees of the said person or persons, closely connected with the said persons; (2) large amounts were subscribed by the investing public in the shares of some of these companies; (3) there have been gross irregularities (which may in several respects and materials amount to illegalities) in the management of such companies including manipulation of the accounts and unjustified transfers and use of funds and assets; (4) the moneys subscribed by the investing public were in a considerable measure used not in the interests of the companies concerned but contrary to their interest and for the ultimate personal benefit of those in control and/or management; and (5) the investing public have as a result suffered considerable losses. 285 And Whereas the Central Government is of the opinion that there should be a full inquiry into these matters which are of definite public importance both by reason of the grave consequences which appear to have ensued to the investing public and also to determine such measures as may be deemed necessary in order to prevent a recurrence thereof; Now, therefore, in exercise of the powers conferred by section 3 of the Commissions of Inquiry Act (No. 60 of 1952), the Central Government hereby appoints a Commission of Inquiry consisting of the following persons, namely : Shri Justice section R. Tendolkar, Judge of the High Court at Bombay, Chairman. Shri N. R. Modi of Messrs A. F. Ferguson & o., Chartered Accountants, Member. Shri section C. Chaudhuri, Commissioner of Income tax, Member. 1.The Commission shall inquire into and report on and in respect of: (1) The administration of the affairs of the companies specified in the schedule hereto; (2) The administration of the affairs of such other companies and firms as the Commission may during the course of its enquiry find to be companies or firms connected with the companies referred to in the schedule and whose affairs ought to be investigated and inquired into in connection with or arising out of the inquiry into the affairs of the companies specified in the schedule hereto; (3)The nature and extent of the control, direct and indirect, exercised over such companies and firms or any of them by the aforesaid Sarvashri Ram Krishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain, their relatives, employees and persons connected with them; (4)The total amount of the subscription obtained from the investing public and the amount subscribed by the aforesaid persons and the extent to which the funds and assets thus obtained or acquired were misused, misapplied or misappropriated; (5) The extent and nature of the investments by 286 and/or loans to and/or the use of the funds or assets by and transfer of funds between the companies aforesaid; (6)The consequences or results of such investments, loans transfers and/or use of funds and assets ; (7)The reasons or motives of such investments, loans transfers and use and whether there was any justification for the same and whether the same were made bona fide, in the interests of the companies concerned ; (8) The extent of the losses suffered by the investing public, how far the losses were avoidable and what steps were taken by those in control and/or management to avoid the losses; (9) The nature and extent, of the personal gains made by any person or persons or any group or groups of persons whether herein named or not by reason of or through his or their connection with or control over any such company or companies; (10) Any irregularities frauds or breaches of trust or action in disregard of honest commercial practices or contravention of any law (except contraventions in respect of which criminal proceedings are pending in a Court of Law) in respect of the companies and firms whose affairs are investigated by the Commission which ma come to the knowledge of the Commission and the action which in the opinion of the Commission should be taken as and by way of securing redress or punishment or to act as a preventive in future cases. (11) The measures which in the opinion of the Commission are necessary in order to ensure in the future the due and Proper administration of the funds and assets of companies and firms in the interests of the investing public. SCHEDULE 1. Dalmia Jain Airways Ltd. 2. Dalmia Jain Aviation Ltd., (now known as Asia Udyog Ltd.) 3. Lahore Electric Supply Company Ltd., (now known as South Asia Industries Ltd.) 4. Sir Shapurji Broacha Mills Ltd. 287 5. Madhowji Dharamsi Manufacturing Company Ltd. 6. Allen Berry and Co. Ltd. 7. Bharat Union Agencies Ltd. 8. Dalmia Cement and Paper Marketing Company Ltd., (now known as Delhi Glass Works Ltd.) 9. Vastra Vyavasaya Ltd. Ordered that the Order be published in the Gazette of India for public information. (No. F. 107 (18INS/56)). H.M. Patel Secretary. It should be noted that the above notification did not specify the time within which the Commission was to complete the inquiry and make its report. On January 9, 1957, the Central Government issued another notification providing that all the provisions of sub sections (2), (3), (4), and (5) of section 5 should apply to the Commission. As the notification of December 11, 1956, did not specify the time within which the Commission was to make its report, the Central Government on February 11, 1957, issued a third notification specifying two years from that date as the time within which the Commission of Inquiry should exercise the functions conferred on it and make its report. On February 12, 1957, three several Miscellaneous Applications were filed under article 226 of the Constitution questioning the validity of the Act and the notification dated December 11, 1956, on diverse grounds and praying for a writ or order for quashing the same. It will be convenient to advert to a few minor objections urged before us on behalf of the petitioners in support of their appeals before we come to deal with their principal and major contentions. The first objection is that the notification has gone beyond the Act. It is pointed out that the Act, by section 3, empowers the appropriate Government in certain eventualities to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and for no other purpose. The contention is that the conduct of an individual person 288 or company cannot possibly be a matter of public importance and far less a definite matter of that kind. We are unable to accept this argument as correct. Widespread floods, famine and pestilence may quite easily be a definite matter of public importance urgently calling for an inquiry so as to enable the Government to take appropriate steps to prevent their recurrence in future. The conduct of villagers in cutting the bunds for taking water to their fields during the dry season may cause floods during the rainy season and we can see no reason why such unsocial conduct of villagers of certain villages thus causing floods should not be regarded as a definite matter of public importance. The failure of a big bank resulting in the loss of the life savings of a multitude of men of moderate means is certainly a definite matter of public importance but the conduct of the. persons in charge and management of such a bank which brought about its collapse is equally a definite matter of public importance. Widespread dacoities in parti cular parts of the country is, no doubt, a definite matter of public importance but we see no reason why the conduct, activities and modes operandi of particular dacoits and thugs notorious for their cruel depredations. should not be regarded as definite matters of public importance urgently requiring a sifting inquiry. It is needless to multiply instances. In each case the question is: is there a definite matter of public importance which calls for an inquiry ? We see no warrant for the proposition that a definite matter of public importance must necessarily mean only some matter involving the public benefit or advantage in the abstract, e. g., public health, sanitation or the like or some public evil or prejudice, e. g., floods, famine or pestilence or the like. Quite conceivably the conduct of an individual person or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well being as to make such conduct a definite matter of public importance urgently calling for a full inquiry. Besides, section 3 itself authorises the appropriate Government to appoint a Commission 289 of Inquiry not only for the purpose of making an inquiry into a definite matter of public importance but also for the purpose of performing such functions as, may be specified in the notification. Therefore, the notification is well within the powers conferred on the appropriate Government by section 3 of the Act and it cannot be questioned on the ground of its going beyond the provisions of the Act. Learned counsel for the petitioners immediately replies that in the event of its being held that the notification is within the terms of the Act, the Act itself is ultra vires the Constitution. The validity of the Act is called in question in two ways. In the first place it is said that it was beyond the legislative competency of Parliament to enact a law conferring such a wide sweep of powers. It is pointed out that Parliament enacted the Act in exercise of the legislative powers conferred on it by article 246 of the Constitution read with entry 94 in List I and entry 45 in List III of the Seventh Schedule to the Constitution. The matters enumerated in entry 94 in List 1, omitting the words not necessary for our purpose, are " inquiries. . for the purpose of any of the matters in this List ", and those enumerated in entry 45 in List III, again omitting the unnecessary words, are " inquiries. . for the purposes of any of the matters specified in List II or List 111. " Confining himself to the entries in so far as they relate to " inquiries ", learned counsel for the petitioners urges that Parliament may make a law with respect to inquiries but cannot under these entries make a law conferring any power to perform any function other than the power to hold an inquiry. He concedes that, according to the well recognised rule of construction of the provisions of a Constitution, the legislative heads should be construed very liberally and that it must be assumed that the Constitution intended to give to the appropriate legislature not only the power to legislate with respect to the particular legislative topic but also with respect to all matters ancillary thereto. Indeed the very use of the words " with respect to in article 246 supports this principle 37 290 of liberal interpretation. He, however, points out that the law, which the appropriate legislature is empowered to make under these entries must be with respect to inquiries for the purposes of any of the matters in the relevant lists and it is urged that the words " for the purpose of " make it abundantly clear that the law with respect to inquiries to be made under these two entries must be for the purpose of future legislation with respect to any of the legislative heads in the relevant lists. In other words, the argument is that under these two entries the appropriate legislature may make a law authorising the constitution of a Board or Commission of Inquiry to inquire into and ascertain facts so as to enable such legislature to undertake legislation with respect to any of the legislative topics in the relevant lists to secure some public benefit or advantage or to prevent some evil or harm befalling the public and thereby to protect the public from the same. But if an inquiry becomes necessary for, say, administrative purposes, a law with respect to such an inquiry cannot be made under these two entries. And far less can a law be made with respect to an inquiry into any wrongs alleged to have been committed by an individual person or company or a group of them for the purpose of punishing the suspected delinquent. This argument has found favour with the High Court, but we are, with great respect, unable to accept this view. To adopt this view will mean adding words to the two entries so as to read " inquiries for the purpose of future legislation with respect to any of the matters in the List or Lists mentioned therein. The matter, however, does not rest here. A careful perusal of the language used in entry 45 in List III does, in our view, clinch the matter. Entry 45 in List III, which is the Concurrent List, speaks, inter alia, of " inquiries for the purpose of any of the matters in List II or List 111. Under article 246 read with this entry, Parliament as well as the Legislature of a State may make a law with respect to " inquiries for the purpose of any of the matters in List II. " Parliament, under article 246, has no power to make a law with respect to any of the 291 matters enumerated in List 11. Therefore, when Parliament makes a law under article 246 read with. , entry 45 in List III with respect to an inquiry for the purposes of any of the matters in List 11, such law can never be one for inquiry for the purpose of future legislation by Parliament with respect to any of those matters in List 11. Clearly Parliament can make a law for inquiry for the purpose of any of the matters in List 11 and none the less so though Parliament cannot legislate with respect to such matters and though none of the State Legislatures wants to Legislate on such matters. In our opinion, therefore, the law to be made by the appropriate legislature with respect to the two legislative entries referred to above may cover inquiries into any aspect of the matters enumerated in any of the lists mentioned therein and is not confined to those matters as mere heads of legislative topic. Quite conceivably the law with respect to inquiries for the purpose of any of the matters in the lists may also be for administrative purposes and the scope of the inquiry under such a law will cover all matters which may properly be regarded as ancillary to such inquiries. The words " for the purposes of " indicate that the scope of the inquiry is not necessarily limited to the particular or specific matters enumerated in any of the entries in the list concerned but may extend to inquiries into collateral matters which may be necessary for the purpose, legislative or otherwise, of those particular matters. We are unable, therefore,to hold that the Inquiry which may be set up by a law made under these two entries is, in its scope or ambit, limited to future legislative purposes only. Learned counsel then takes us through the different heads of inquiry enumerated in the notification and urges that the inquiry is neither for any legislative nor for any administrative purpose, but is a clear usurpation of the functions of the judiciary. The argument is that Parliament in authorising the appointment of a Commission and the Government in appointing this Commission have arrogated to themselves judicial powers which do not, in the very nature 292 of things, belong to their respective domains which must be purely legislative and executive respectively. It is contended that Parliament cannot convert itself into a court except for the rare cases of dealing with breaches of its own privileges for which it may punish the delinquent by committal for contempt or of proceedings by way of impeachment. It cannot, it is urged, undertake to inquire or investigate into alleged individual wrongs or private disputes nor can it bring the supposed culprit to book or gather materials for the purpose of initiating proceedings, civil or criminal, against him, because such inquiry or investigation is clearly not in aid of legislation. It is argued that if a criminal prosecution is to be launched, the preliminary investigation must be held under the Code of Criminal Procedure and it should not be open to any legislature to start investigation on its own and thereby to deprive the citizen of the normal protection afforded to him by the provisions of the Code of Criminal Procedure. This line of reasoning also found favour with the High Court which, after considering the provisions of the Act and the eleven heads of inquiry enumerated in the notification, came to the conclusion that the last portion of el. (10) beginning with the words " and the action " and ending with the words ',in future cases" were ultra vires the Act and that the Government was not competent to require the Commission to hold any inquiry or make any report with regard to the matters covered by that portion of cl. (10), for such inquiry or. report amounts to a usurpation of the judicial powers of the Union or the State as the case may be. While we find ourselves in partial agreement with the actual conclusion of the High Court on this point, we are, with great respect, unable to accept the line of reasoning advanced by learned counsel for the petitioners, which has been accepted by the High Court for more reasons than one. In the first place neither Parliament nor the Government has itself undertaken any inquiry at all. Parliament has made a law with respect to inquiry and has left it to the appropriate Government to set up a Commission of Inquiry under 293 certain circumstances referred to in section 3 of the Act. The Central Government, in its turn, has, in exercise of the powers conferred on it by the Act, set up this Commission. It is, therefore, not correct to say that Parliament or the Government itself has undertaken to hold any inquiry. In the second place the conclusion that the last portion of cl. (10) is bad because it signifies that Parliament or the Government had usurped the functions of the judiciary appears to us, with respect, to be inconsistent with the conclusion arrived at in a later part of the judgment that as the Commission can only make recommendations which are not enforceable proprio vigore there can be no question of usurpation of judicial functions. As has been stated by the High Court itself in the latter part of its judgment, the only power that the Commission has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case and the elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by and under the American Constitution appears to us, with respect, wholly inappropriate and unnecessary and we do not feel called upon, on the present occasion, to express any opinion on the question whether even in the absence of a specific provision for separation of powers in our Constitution, such as there is 294 under the American Constitution, some such division of powers legislative, executive and judicial is, nevertheless implicit in our Constitution. In the view we have taken it is also not necessary for us to consider whether, had the Act conferred on the appropriate Government power to set up a Commission of Inquiry with judicial powers, such law could not, subject, of course, to the other provisions of the Con stitution, be supported as a law made under some entry in List I or List III authorising the setting up of courts read with these two entries, for a legislation may well be founded on several entries. Learned Counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957, goes as far as to say that while the Commission may find facts on which the Government may take action, legislative or executive, although he does not concede the latter kind of action to be contemplated, the Commission cannot be asked to suggest any measure, legislative or executive, to be taken by the appropriate Government. We are unable to accept the proposition so widely enunciated. An inquiry necessarily involves investigation into facts and necessitates the collection of material facts from the evidence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the consideration of the appropriate Government in order to enable it to take such measure as it may think fit to do. The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government 295 for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Inquiry recommending the imposi tion of some. form of punishment which will, in its opinion, be sufficiently deterrent to delinquents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is, under section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action " as and by way of securing redress or punishment " which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law, properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be. Having regard to all these considerations it appears to us that only that portion of the last part of cl. (10) which calls upon the Commission of Inquiry to make recommendations about the action to be taken " as and by way of securing redress or punishment ", cannot be said to be at all necessary for or ancillary to the purposes of the Commission. In our view the words in the latter part of the section, namely, " as and by way of securing redress or punishment ", clearly go outside the scope of the Act and such provision is not covered by the two legislative entries and should, therefore, be deleted. So deleted the latter portion of cl. (10) would read and the action which in the opinion of the Commission 296 should be taken to act as a preventive in future cases ". Deletion of the words mentioned above from cl. (10) raises the question of severability. We find ourselves in substantial agreement with the reasons given by the High Court on this point and we hold that the efficacy of the notification is in no way affected by the deletion of the offending words mentioned above and there is no reason to think that the Government would not have issued the notification without those words. Those words do not appear to us to be inextricably wound up with the texture of the entire notification. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on article 14 of the Constitution. In Budhan Choudhry vs The State of Bihar (1) a Constitution Bench of seven Judges of this Court at pages 1048 49 explained the true meaning and scope of article 14 as follows: " The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, Chiranjit Lal Choudhuri vs The Union of India (2) , The State, of Bombay vs F. N.Balsara(3),The state of west Bengal vs Anwar Ali Sarkar (4 ), Kathi Baning Rawat vs The State of Saurashtra(5) Lachmandas Kewalram Ahuja vs The State Of Bombay (6), Qasim Razvi vs The State of Hyderabad (7) and Habeeb Mohamad vs The State of Hyderabad (8). it is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, filled namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together (1) ; (3) ; (5) ; [1952] S.C.R. 433.(6) (7) ; (8) ; 297 from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there 'Must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. " The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f)that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the 38 298 law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws. A close perusal of the decisions of this Court in which the above principles have been enunciated and applied by this Court will also show that a statute which may come up for consideration on a question of its validity under article 14 of the Constitution, may be placed in one or other of the following five classes: (i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in Chiranjitlal Chowdhri vs The Union of India (1), The State of Bombay vs F. N. Balsara (2), Kedar Nath (1) ; (2) ; , 299 Bajoria vs The State of West Bengal (1), V. M. Syed Mohammad & Company vs The State of Andhra (2) and Budhan Choudhry vs The State of Bihar (3). (ii)A statute may direct its provisions against one individual person or thing or to several individual persons or things but, no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum vs Mahboob Begum (4) and Ramprasad Narain Sahi vs The State of Bihar (3). (iii)A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no Classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal vs Anwar, Ali Sarkar (6), Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh(7) (1) ; (2) [1954] S.C.R. I 117. (3) (4) (5) ; (6) ; (7) ; 300 and Dhirendra Krishna Mandal vs The Superintendent and Remembrancer of Legal Affairs (1). (iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional, as it did in Kathi Raning Rawat vs The State of Saurashtra (2). (v) 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, it has been held by this Court, e. g., in Kathi Raning Rawat vs The State of Saurashtra (2) that in such a case the executive action but not the statute should be condemned as unconstitutional In the light of the foregoing discussions the question at once arises: In what category does the Act or the notification impugned in these appeals fall ? It will be apparent from its long title that the purpose of the Act is to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers. Section 3 empowers the appropriate Government, in certain circumstances therein mentioned, to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions within such time as may be specified in the notification. It seems clear and it has not been controverted that on a proper construction of this (1) (2) ; 301 section, the functions the performance of which is contemplated must be such as are ancillary to and in aid of the inquiry itself and cannot be read as a function independent of or unconnected with such inquiry. That being the position, as we conceive it to be, the question arises as to the scope and ambit of the power which is conferred by it on the appropriate Government. The answer is furnished by the statute itself, for section 3 indicates that the appropriate Government .can appoint a Commission of Inquiry only for the purpose of making an inquiry into any definite matter of public importance and into no other matter. In other words the subject matter of the inquiry can only be a definite matter of public importance. The appropriate Government, it follows, is not authorised by this section to appoint a Commission for the purpose of holding an inquiry into any other matter. Learned Solicitor General, in the premises, submits that the section itself on the face of it, makes. a classification so that this statute falls within the first category mentioned above and contends that this classification of things is based on an intelligible differentia which has a reasonable relation to the object sought to be achieved by it, for a definite matter of public importance may well call for an inquiry by a Commission. In the alternative the learned Solicitor General urges that in any case the section itself quite clearly indicates that the policy of Parliament is to provide for the appointment of Commissions of Inquiry to inquire into any definite matter of public importance and that as there is no knowing when, where or how any such matter may crop up Parliament considers it necessary or expedient to leave it to the appropriate Government to take action as and when the appropriate moment will arrive. In the tempo of the prevailing conditions in modern society events occur which were never foreseen and it is impossible for Parliament or any legislature to anticipate all events or to provide for all eventualities and, therefore, it must leave the duty of taking the necessary action to the appropriate Government. This delegation of authority, however, is not unguided or uncontrolled, 302 for the discretion given to the appropriate Government to set up a Commission of Inquiry must be guided by the policy laid down, namely, that the executive action of setting up a Commission of Inquiry must conform to the condition of the section, that is to say, that there must exist a definite matter. of public importance into which an inquiry is, in the opinion of the appropriate Government, necessary or is required by a resolution in that behalf passed by the House of the People or the Legislative Assembly of the State. If the preambles or the provisions of the statutes classed under the first category mentioned above could be read as making a reasonable classification satisfying the requirements of article 14 and if the preamble to the statute considered in the case of Kathi Raning Rawat (1) could be construed as laying down sufficiently clearly a policy or principle for the guidance of the executive, what objection can there be to construing section 3 of the Act now under our consideration as also making a reasonable classification or at any rate as declaring with sufficient clarity the policy of Parliament and laying down a principle for the guidance of the exercise of the powers conferred the appropriate Government so as to bring this statute at least in the fourth category, if not also in the first category ? On the authorities, as they stand, it cannot be said that an arbitrary and uncontrolled power has been delegated to the appropriate Government and that, therefore, the law itself is bad. Learned counsel for the petitioners next contends that if the Act is good in the sense that has declared its policy and laid down some principle for the guidance of the Government in the exercise of the power conferred on it, the appropriate Government has failed to exercise its discretion property on the basis of a, reasonable classification. Article 14 protects all persons from discrimination by the legislative as well as by the executive organ of the State. "State" is defined in article 12 as including the Government and "law " is defined in article 13 as including any notification or order ' It has to be conceded, therefore, that (1) ; 303 it is open to the petitioners also to question the consti tutionality of the notification. The attack against, the notification is that the Government has not properly implemented the policy or followed the principle laid down in the Act and has consequently transgressed the bounds of the authority delegated to it. It is pointed out that in March, 1946, one Shri Tricumdas Dwarkadas, a solicitor of Bombay, had been appointed an officer on Special Duty to indicate the lines on which the Indian Companies Act was to be revised. He made a report which was, however, incomplete in certain particulars. Thereupon the Government appointed Shri Thiruvenkatachari, the Advocate General of Madras, to make further inquiry. The last mentioned gentleman submitted his report and on the basis of that report, it is said, a memorandum containing tentative proposals was prepared and circulated to elicit the opinions of various organisations. On October 28, 1950, a Committee called the Indian Company Law Committee popularly known as the Bhaba Committee was appointed. That Committee went round and collected materials and made its comprehensive report on the basis of which the new Indian Companies Act has recently been remodeled. As nothing new has since then happened why, it is asked ', should any further inquiry be made ? The conclusion is pressed upon us that there can, in the circumstances, be no definite matter of public importance which can possibly call for an inquiry. We find no force in this argument. In the first place the Bhaba Committee at p. 29 of its Report recommended that further inquiries may, in future, have to be made regarding some matters relating to Companies and, therefore, the necessity for fresh inquiry cannot be ruled out. In the next place the appropriate Government is empowered to appoint a Commission of Inquiry if, in its opinion, it is necessary so to do. The preambles to the notification recite that certain matters enumerated under five heads had been made to appear to the Central Government in consequence of which the Central Government had come to the conclusion that there should be a full inquiry into those matters which, 304 in its opinion, were definite matters of public importance both by reason of the grave consequences which appeared to have ensued to the investing public and for determining such measures as might be deemed necessary in order to prevent a recurrence thereof. Parliament in its wisdom has left the matter of the setting up of a Commission of Inquiry to the discretion of the appropriate Government and if the appro priate Government has formed the opinion that a definite matter of public importance has arisen and calls for an inquiry the court will not lightly brush aside the opinion. Learned counsel for the petitioners argues that granting that the question as to the necessity for constituting a Commission of Inquiry has been left to the subjective determination of the appropriate Government the actual setting up of a Commission is conditioned by the existence 'of some definite matter of public importance. If there be no such definite matter of public importance in existence then no question of necessity for appointing a Commission can arise. Reference is then made to the first preamble to the notification and it is pointed out that all the matters alleged to have been made to appear to the Central Government relate to some supposed act or conduct of the petitioners. The contention is repeated that the act and conduct of individual persons can never be regarded as definite matters of public importance. We are unable to accept this argument as sound, for as we have already stated, the act or conduct of individuals may assume such dangerous proportions as may well affect the public well being and thus become a definite matter of public importance. We do not, therefore, agree that the notification should be struck down for the absence of a definite matter of public importance calling for an inquiry. The point which is next urged in support of these appeals and which has given us considerable anxiety is that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The provisions of article 14, 305 it is contended, protect every person against discrimination by the State, namely, against the law as well as the executive action and this protection extends to State action at all its stages. The petitioners ' grievance is that the Government had started discrimination even at the earliest stage when it conceived the idea of issuing the notification. Reference is made to the Memorandum filed by the Bombay Shareholders ' Association before the Bhaba Committee showing that the same or similar allegations had been made not only against the petitioners and their companies but against other businessmen and their companies and that although the petitioners and their companies and those other persons and their companies were thus similarly situate, in that allegations had been made against both, the Government arbitrarily applied the Act to the petitioners and their companies and issued the notification concerning them but left out the others from its operation. It is true that the notification primarily or even solely affects the petitioners and their companies but it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind the appropriate Government has of necessity to act upon the information available to it. It is the best judge of ' the reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an inquiry with a view to devise measures for preventing the recurrence of such evil, this Court, not being in possession of all the facts will, 39 306 we apprehend, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred on the Government and, indeed, the contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the court to deny the existence of the powers. It cannot be overlooked that Parliament has confided this discretion, not to any petty official but to the appropriate Government itself to take action in conformity with the policy and principle laid down in the Act. As this Court 'has said in Matajog Dobey vs H. C. Bhari (1), " a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official. " We feel sure, however, that if this law is administered by the Government " with an evil eye and an unequal hand " or for an oblique or unworthy purpose the arms of this Court will be long enough to reach it and to strike down such abuse with a heavy hand. What, then, we inquire, are the salient facts here ? The Central Government appointed investigators to scrutinise the affairs of three of the petitioners ' concerns. Those investigators had made their reports to the Central Government. The Central Government had also the Bhaba Committee Report and all the Memoranda filed before that Committee. It may also have had other information available to it and on those materials it formed its opinion that the act and conduct of the petitioners and the affairs of their companies constituted a definite matter of public importance which required a full inquiry. Up to this stage there is no question of legal proof of the allegations against the petitioners as in a court of law. The only question is: do those allegations if honestly believed, constitute a definite matter of public importance ? We are unable to say that they do not. (1) , 932. 307 Reference is again made to the several matters enumerated in the five clauses set out in the first, preamble to the notification and it is urged that those matters do not at all disclose any intelligible differentia on the basis of which the petitioners and their companies can be grouped together as a class. On the part of the Union of India reference is made to the affidavits affirmed by Shri H. M. Patel, the Principal Secretary to the Finance Ministry of the Government of India purporting to set out in detail as the background thereof, the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. Learned counsel for the petitioners take the objection that reference cannot be made to any extraneous matter and that the basis of classification must appear on the face of the notification itself and reliance is placed on certain observations in the dissenting judgments in Chiranjitlal Chowdhury 's case (1) and in item (2) of the summary given by Fazl Ali J. in his judgment in F. N. Balsara 's case (2). In Chiranjitlal Chowdhury 's case (1) the majority of the Court read the preamble to the Ordinance which was replaced by the Act which was under consideration there as part of the Act and considered the recitals, reinforced as they were by the presumption of validity of the Act, as prima facie sufficient to constitute an intelligible basis for regarding the company concerned as a class by itself and held that the petitioner there had not discharged the onus that was on him. The dissenting Judges, after pointing out that the petition and the affidavit did not give any indication as to the differentia on the basis of which the company had been singled out, went on to say that the statute also did not on the face of it indicate any basis of classification. This was included in cl. (2) of the summary set out in the judgment in F. N. Balsara 's case (2). Those observations cannot, therefore, be read as meaning that the classification must always appear on the face of the law itself and that reference cannot be made to (1) (2) ; 308 any extraneous materials. In fact in Chiranjitlal Chowdhury 's case (1) parliamentary proceedings, in so far as they depicted the surrounding circumstances and furnished the background, were referred to. In Kathi Raning Rawat 's case (2) the hearing was adjourned in order to enable the respondent to put in an affidavit setting forth the material circumstances. In Kedarnath Bajoria 's case (3) the situation brought about by the war conditions was taken notice of The same may be said of the cases of A. Thanyal Kunju Musaliar vs V. Venkitachulam Potti (4) and Pannalal Binjraj vs Union of India (5). In our judgment, therefore, there can be no objection to the matters brought to the notice of the court by the affidavit of Shri H. M. Patel being taken into consideration along with the matters specified in the notification in order to ascertain whether there was any valid basis for treating the petitioners and their companies as a class by themselves. Learned counsel for the petitioners next urges that even if the matters referred to in Shri H. M. Patel 's affidavits and those appearing on the face of the notification are taken into consideration one cannot deduce therefrom any differentia which may be taken to distinguish the petitioners and their companies from other persons and their companies. The qualities and characteristics imputed to the petitioners and their companies are not at all peculiar or exclusive to them but are to be found equally in other persons and companies and yet they and their companies have been singled out for hostile and discriminatory treatment leaving out other persons and companies which are similarly situate. There is no force in this argument. Parliament has confided the task of the selective application of the law to the appropriate Government and it is, therefore for the appropriate Government to exercise its discretion in the matter. It is to be expected and, until the contrary is proved, it is to be presumed that the Government, which is responsible to Parliament, will act honestly, properly and in conformity with the (1) ; (2) ; (3) ; (4) ; (5) ; 309 policy and principle laid down by Parliament. It may well be that the Central Government thought that even if one, or more of the particular qualities and characteristics attributed to the petitioners and their companies may be found in another person or company, the combination of those qualities and characteristics which it thought were present in the petitioners and their companies was of a unique nature and was not present in any other person or company. In its appreciation of the material facts preparatory to the exercise of the discretion left to it by Parliament the Central Government may have thought that the evil was more pronounced in the petitioners and their concerns than any other person or concern and that the need for an inquiry was more urgent and clear in the case of the petitioners and their companies than in the case of any other person or company. What is the gist and substance of ' the allegations against the petitioners and their companies ? They are that a small group of persons had from before 1946 acquired control over a number of companies including a blanking company and an insurance company ; that some of these companies were private companies and the others were public companies in which the public had invested considerable moneys by buying, shares; that the financial years of some of these companies were different from those of the others; that the funds of ' the limited companies were utilised in purchasing shares in other companies having large reserve funds with a view to get control over them and to utilise those funds for acquiring shares in other companies or otherwise utilise those funds for the personal benefit of these individuals; that the shares were acquired on blank transfer deeds and were not registered in the names of the companies with whose funds they were purchased so as to permit the same shares to be shown in the balance sheets of the different companies having different financial years; that after 1951 several of these companies were taken into voluntary liquidation or their assets were transferred to another company under some pretended scheme of ' arrangement or re organisation; that after getting control of 310 a company they appointed some of themselves as managing director or selling agent on high remuneration and after a while cancelled such appointment on paying fabulous amounts as and by way of compensation; that funds of one company were transferred to another company to cover up the real financial position. It is needless to add other allegations to explain the matter. The question before us is not whether the allegations made on the face of the notification and in the affidavits filed on behalf of the Union of India are true but whether the qualities and characteristics, if honestly believed to be found in the petitioners, are so peculiar or unique as to constitute a good and valid basis on which the petitioners and their companies can be regarded as a class by themselves. We are not of opinion that they do not. It is not for us to say on this application and we do not in fact say or even suggest that the allegations about the petitioners and their concerns are at all well founded. It is sufficient for our present purpose to say that the facts disclosed on the face of the notification itself and the facts which have been brought to our notice by the affidavits afford sufficient support to the presumption of constitutionality of the notification. There being thus a presumption of validity in favour of the Act and the notification, it is for the petitioners to allege and prove beyond doubt that other persons or companies similarly situate have been left out and the petitioners and their companies have been singled out for discriminatory and hostile treatment. The petitioners have, in our opinion, failed to discharge that onus. Indeed nowhere in the petitions is there even an averment that there are other persons or companies similarly situate as the petitioners and their companies. It has to be remembered that the allegations set forth in the memorandum submitted by the Bombay Shareholders ' Association to the Bhaba Committee have not been proved by legal evidence. And further that report itself contains matters which may be taken as calculated to lend support to the view that whether regard is had to the combination of a variety of evils or to their degree, the petitioners may quite conceivably 311 be grouped as a class by themselves. In our judgment the plea of the infraction of the equal protection, clause of our Constitution cannot be sustained. The next contention is that the notification is bad, because the action of the Government in issuing it was mala fide and amounted to an abuse of power. Learned counsel appearing for the petitioner, who is the appellant in Civil Appeal No. 455 of 1957, makes it clear that no personal motive or illwill against the petitioners is imputed to any one, but he points out that the Bhaba Committee had been set up and the Companies Act has been remodelled and, therefore, the present Commission was not set up for any legitimate purpose. The main idea, according to learned counsel, was to obtain information which the Government could not get by following the ordinary procedure under the Code of Criminal Procedure and this ulterior motive clearly makes the governmental action mala fide. This point has been further emphasised by learned counsel appearing for the petitioners, who are appellants in Civil Appeals Nos. 456 and 457 of 1957. He has drawn our attention to the affidavits filed by his clients and contends that it was well known to the Government that none of them was concerned in promoting or managing any of the companies and their position being thus well known to the Government, their inclusion in the notification was both outside the power conferred by the Government and also constituted a mala fide exercise of the power conferred on it. No substantial ground in support of this point has been brought before us and we are not satisfied that the circumstances referred to in the notification and the affidavits filed on behalf of the Union of India, may not, if true, be the basis of a further inquiry into the matter. It will be for the Commission to inquire into the allegations and come to its own findings and make its report containing its recommendations. It is not desirable that we should say anything more on this point. All that we need say is that the charge of mala fides has not been brought home to the Government. 312 A point was taken that the original notification was defective in that it did not fix the time within which the Commission was to complete its report and that a subsequent notification fixing a time could not cure that defect. We do not think there is any substance in this too. The third notification quoted above amended the original notification by fixing a time. There was nothing to prevent the Government from issuing a fresh notification appointing a Commission and fixing a time. If that could be done, there was no reason why the same result could not be achieved by the combined effect of two notifications. In any case the amending notification taken together with the original notification may be read as a fresh notification within the meaning of section 3 of the Act, operative at least from the date of the later notification. It is feebly argued that the notification is bad as it amounts to a delegation of essential legislative function. Assuming that there is delegation of legislative function, the Act having laid down its policy, such delegation of power, if any, is not vitiated at all, for the legislation by the delegates will have to conform to the policy so laid down by the Act. Lastly a point is raised that the notification is bad because it violates article 23 of the Constitution. It is frankly stated by the learned counsel. that this point is rather premature at this stage and that he desires to reserve his client 's right to raise it in future. No other point has been urged before us and for reasons stated above the appeals Nos. 455, 456 and 457 of 1957 are dismissed with costs. Appeals Nos. 656, 657 and 658 of 1957 succeed only in part, namely, to the extent that only the word , " by way of redress or punishment " occurring in the latter portion of el. (10) will be deleted so that the latter portion of cl. (10) will read as: " and the action which in the opinion of the Commission should be taken. . . to act as a preventive in future cases " as indicated above. We make no order as to the costs of these three appeals. C. A. Nos. 455, 456 and 457 of 1957 dismissed. C. A. Nos. 656, 657 and 658 of 1957 Partly allowed. [/INST]The respondent company was engaged in the manufacture of Carbon Paper. It was served with a notice demanding central excise duty on carbon papers cleared from its factory during the period 25.3.1979 to 24.9.1979 under section 11 B of the . The respondent stated in reply that the notice was without jurisdiction because it was only after 28.2.1982 that the product was subjected to duty under sub item (3) of item 17 of the Central Excise Tariff. The Assistant Collector of Central Excise, confirmed the demand. The appellate Collector, however, accepted the respondent 's contention. The Collector (Appeals) and the Appellate Tribunal dismissed the Revenue 's appeals. The Tribunal upheld the contention of the respondent that for the period before its amendment in 1982, carbon paper fell under Tariff item 68 and not under Tariff Item 17(2), as was contended by the Revenue. Before this Court the Revenue contends that (I) carbon paper being akin to coated paper was covered since 1976 under sub item (2) of item 17 of the Central Excise Tariff which included paper which had been subjected to coating; (2) the introduction of specific name `carbon paper ' as sub item (3) of item 17 in 1982 was with a view to subject it to a different rate of duty; and (3) the amendment so far as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela. The respondent, on the other hand, contends that if carbon paper was already included then there was no purpose of introducing these subsequent amendments. Disposing of the appeal, it was, PG NO 12 PG NO 13 HELD: (1) Where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe. The correct guide is the context and the trade meaning, which is prevalent in that particular trade where that goods is known or traded. [21D E] (2) If a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it. The ordinary words in every day use are, therefore, to be construed according to their popular sense. [23F G] (3) Paper simpliciter cannot include ' carbon paper because that would not be in consonance with the popular understanding of the expression "paper". [23G H; 24A] (4) Where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding. [24A] (5) There is authority of the Indian Standards Institute 's publication "Glossary of Terms used in Paper Trade and Industry" to the effect that carbon paper is understood as a coated paper in trade. [23A C] (6) The trade notices and the tariff advices issued by the Board are not relevant, as such, in construing items in Tariff Schedule. [24E F] (7) Understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standards Institute and in the absence of any other evidence to the contrary, on the basis of the definition of paper or it was in the year 1976, carbon paper would come within item 17(2) of the Tariff Items, and would not fall into the residuary entry. [23B C] Sai Giridhara Supply Co. vs Collector vs Collector of Central Excise, Bombay, Tribunal; Commissioner of Sales Tax, U.P. vs M.S.N. Brothers, Kanpur, PG NO 14 ; ; King vs Planters Nut and Chocolate Company Ltd., [1951] C.L.R. exhibit 122; Union of India and Anr. vs Delhi Cloth and General Mills Co. Ltd., AIR 1963 S.C. 791; Grenfell vs I.R.C., ; Porritts & Spencer (Asia) Ltd. vs State of Haryana, [1979] I S.C.C. 82; Kores (India) Ltd. Thane vs Collector of Central Excise, Thane. ; State of Uttar Pradesh vs M/s. Kores (India) Ltd., ; ; Attorney General vs Winstar lay. ; ; Khoday Industries Ltd. vs Union of India, ; Orient Paper Mills Ltd. vs Union of India; , ; M/s Colgate Palmolive (India) P. Ltd., [1979] E.L.T. J. 567; Dunlop India Ltd. vs Union of India, AIR 1977 S.C. 597; Md. Qasim Larry, Factory Manager, Sasamusa Sugar Works vs Muhammad Samsuddin, ; , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 2322 of 1968. Appeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968. N. N. Keswani, for the appellant. R. B. Datar and section N. Prasad, for respondent No. 1. section P. Nayar, for respondents Nos. 2 to 4. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under articles 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967. The facts are as follows. On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act. The counting 968 of votes took place with regard to Ward No. 25 on June 4, 1967. According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967. The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in paragraph 3 of the petition. The first of these was to the effect that the appellant bad, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments. Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition. Charges of terrorising voters and securing votes by false personation were also levelled therein. Statements were made in the petition that the appellant 's name as councillor had been declared in the Official Gazette on June 15, 1967 and the petitioner 's cause of action bad arisen on that date. The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged. The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets. Of the four issues framed at the hearing of the petition, the first was : "whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets?" The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him. The appellant examined himself to contradict the said evidence. It appears that the petitioner had in the list of witnesses filed by him, mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined. On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application. The appellant 's case was closed on the same day and the arguments started on August 22, 1968. On that date the court adjourned the hearing of the case to August 24, 1968 for 969 recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day. The order exhibit 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants. He however recorded that the ends of justice required that these witnesses should be examined. He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons. These two persons were examined on the 24th August as court witnesses and thereafter the argument of counsel was resumed and concluded. By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue. The appellant before us presented an application to the High Court under articles 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has now come up before this Court by special leave. Learned counsel for the appellant raised five points before us. The first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968. It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quasbing the order of the Judge based on the evidence of these witnesses. The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable. The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant. The fourth point was that in any event there was no evidence of corrupt practice of which the appellant could be found guilty. The fifth point was that the order of the Judge disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside. With regard to the first point it is to be noted that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and conduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment. The appellant was found guilty of publication of the first pamphlet only. This was. signed by 970 six persons. There was no evidence as to where it was printed or who got it printed. The evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had come across the first pamphlet during the process of distribution. There can be no two opinions about the contents of the pamphlet being defamatory of the election petitioner 's character. The pamphlet read : "H. K. Kadlaskar, who contests the election from Ward No. 25 is an independent candidate, has been ostracized from the Muslim community and he has no support of the Muslim community and therefore nobody should vote for him." While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim community to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there. He turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was convicted. Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private character of Mohmad Umar and Moulana Innan and nobody should vote for this mean minded and anti social person. In a meeting of the Muslim workers held on 29 4 1967 in the Madina Masjid Hall under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past. So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of bullocks. (1) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee. (2) Shaik Abdul Sattar Rahimanbhai Bidiwale, Treasurer, Idgah Fund Committee. (3) Moulana Hannan, manager of Madrasa e Hidayatul Islam, and member of Madina Masjid (4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa e Hidayatul Islam and Idgah Committee. (6) Jalaloddin Allabus Sayyad, B.A.LLB., member of Madrasa e Hidayatul Islam. " The appellant who led evidence on his own behalf denied the publication of the pamphlet and the distribution of it by him as alleged by the petitioner. Nothing came out in cross examination of the appellant to substantiate the election petitioner 's averment 971 that he was responsible for its distribution. Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant. He merely said that he had seen people reading the pamphlet but he did not know who had distributed it. The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to how he came to receive it. He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellant had read over the pamphlet and one Moulana Hannanlent support to the appellant. In cross examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he could give no details thereof i.e. either about the person who distributed them or the dates when that was done. In cross examination of this witness serious accusations were made against his character and probably no exception could have been taken if the Judge hearing the matter had refused to believe him. However that may be, the learned Judge accepted his testimony and came to the conclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a corrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next.five years. It was strenuously argued by learned counsel for the appellant that the recepition of evidence of the two witnesses called as court witnesses vitiated the whole trial and therefore the High Court was not right in refusing to quash the order. Our attention was drawn to the provisions of O. XVI r. 14 of the Code of Civil Procedure and particularly to the conditions under which the court may examine any person other than a party to the suit and not called as a witness by a party to the suit but of its own motion to give evidence therein. It was argued that after having turned down the application of the election petitioner on the 21st August for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as court witnesses. In this connection we. may note the provisions of section 21 sub section 7 of the Maharashtra Municipalities Act, 1965. It provides as follows (7) For the trial of such petition, the Judge shallhave all the powers of a civil court including power in respect of the following matters : (a) discovery and inspection; 972 (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence on affidavit; and (g) issuing commissions for the examination of witnesses; and the Judge may summon suo motu any person whose evidence appears to him to be material. The Judge shall be deemed to be a Civil Court, within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. " It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure under 0. 16 r. 14 inasmuch as the section does not prescribe any prerequisite to the examination of a person as court witness as envisaged by the Code of Civil Procedure. In our view, the learned Judge had jurisdiction to call these two persons as witnesses under the provisions of the Act. We may note that even under the Representation of the People Act, 1951 which does not contain a similar provision it has been held by this Court that "although. . the trial court should be at arms length and the court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice has in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice." (see R. M. Seshadri vs G. Vasanta Pai(1). In that case, the corrupt practice with which the appellant was charged was having used a large number of motor vehicles for the free conveyance of voters at an election. The trial Judge examined two witnesses as court witnesses and it is quite clear that but for the evidence of these two persons, it would have been very difficult. if not impossible, for the Judge to have come to the conclusion he did and find the appellant guilty of corrupt practice. Although one of the two witnesses so examined had been cited earlier as a witness by one of the parties, he was not (1) ; 973 examined but during the course of the evidence led before the rial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice. There, this Court had to deal with the provisions of 0. 16 r. 14 and the quotation from that judgment shows that the powers of the court in this respect are of wide amplitude, specially when investigation is being made into allegations about the commission of a corrupt practice. It may be that in the instant case, if the two persons had not been examined, the Judge might well have decided the issue the other way. But the Act certainly gave him the power to do so and no exception can be taken to the course adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the first instance when asked to do so on the 21st August was hardly justifiable. Probably the learned Judge realised that his order of the 21st August needed recalling. The appellant would have had a real cause for grievance if he had asked for an opportunity to rebut the evidence of these two witnesses and had been denied the same but this has nowhere been alleged. On the evidence no exception can be taken to the course adopted by the Judge in deciding the issue against the appellant on the facts and circumstances of this case. It may be that the evidence which was adduced was not so immaculate that another learned Judge deciding the petition might not have taken a different view. But it cannot be said that there was no evidence on which the Judge could have come to the conclusion he did, The first point therefore fails. With regard to the second point, the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967 that the first publication having taken place on the 8th June the time limit of ten days fixed under section 21 sub section (1) of the Act began to run from that date and the petition which was filed on the 24th June was beyond time and should not have been entertained. It is difficult for us to see why two ' Gazette notifications had become necessary. One seems to be the verbatim reprint of the other. The first publication dated 8th June is headed "Maharashtra Government Gazette Extraordinary Official Publication" while the other is headed "Maharashtra Government Gazette Official Publication". The first bears the date 8th June and the second bears the date 15th June and both start with the sentence "in accordance with section 19(1) of the Maharashtra Municipalities Act, 1965 it is declared that in respect of the Sangh Municipal Council General Elections held on 3rd June 1967, the below mentioned candidates are elected from. the below mentioned 974 wards for the seats mentioned as against their names". As a matter of fact, it does not appear that there is any difference between the two Gazettes with regard to the names of the successful councillors. The appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judge would have been required to go into the matter. But the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragrapbs 1 and 2 of the petition. If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for computation of the period of limitation prescribed by section 21 (1) of the Act. There was no error apparent on the face of the record before the High Court and consequently the jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari. Neither could the High Court have set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act. On the facts of the case the High Court was not called upon to go into this question. There is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading. Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge, framed the issue in a manner which leaves much to be desired. For instance he should have framed separate issue with regard to each of the pamphlets. The issues should further have specified the different heads of corrupt practice committed in respect of each of the pamphlets. We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated. The appellant knew exactly what points he had to meet. Evidence was adduced about the publication and distribution of the pamphlets by the election petitioner and contradicted by the appellant. As we have already stated, although the evidence about the distribution of the pamphlet was meagre and not beyond reproach it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence. It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon. There is much that can be said against him but this does not mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the High Court 975 which was not hearing an appeal could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and for ourselves, we see no reason to interfere with the order of the High Court. The fourth point too is not one of substance. If the distribution of the pamphlet be accepted, there can be no doubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims. The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim community. If this statement was true, naturally any right thinking Muslim would think twice before casting his vote in favour of such a person. There was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been convicted. In our view, there is no merit in this point raised by the learned counsel. As regards the last point, it was for the learned Judge to have come to his own conclusion as to the period of disqualification. The maximum penalty which the Act allowed him to impose was disqualification for six years and we see no reason to take any exception to the disqualification actually imposed. As noted above, the allegations of corrupt practice were of a serious nature and if the appellant was found guilty of the commission thereof, the period of five years ' disqualification would certainly not be inappropriate. In the result, therefore, the appeal fails; but in the circumstances of this case, we make no order as to costs. R.K.P.S. Appeal dismissed. [/INST]The respondent filed suits against the Collector of Customs and the Union of India claiming refund of excess customs duty levied on spindle oil imported into India. The trial court granted decrees against the Union of India for the amounts charged in excess. As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him. The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super tax due from the respondent. He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment of the decree by this amount. This was refused by a single Judge as well as in appeal by a division bench. It was held that the decrees were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor. Furthermore the amounts were held by the Collector on behalf of the Union of India and not on behalf of the Firm. The High Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty, while the receipts which were granted to the Firm stated that the amount paid was against super tax due. On appeal to this Court, HELD : The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered the amount and held it from the respondent. Collector paid the amount on behalf of the Union of India. [126 A] A notice under section 46(5A) is no more than a kind of garnishee order issued to the person holding money and the money is due to an assessee. The amount which was held. by the Collector of Customs could properly be asked to be deposited with the income tax authorities under section 46(5A). [127 B D] Super tax is also a kind of income tax and therefore, the notice could issue in the form it did. There was no force in the contention that the amount, which could be adjusted under O. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary payment at all. Order No. 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree 124 sufficient for being certified by the Court. Payment by virtue of section 46(5A) is in the nature of a garnishee payment and must, therefore, be subject to the same rule. [127 G 128 B] In re Beckitt, [1933].T.R. 1, Bidhoo Beebee vs Keshub Chunder Baboo & Ors. , Mahiganj Loan Office Ltd. vs Behari Lal Chaki, I.L.R. , A. P. Bagchi vs Mrs. F. Morgan A.I.R. 1935, AU 513, Thomas Skinner vs Ram Rachpal I.L.R. [1938] All 294, distinguished. </s>

<s>[INST] Summarize the judgementAppeal No. 30 of 1957. Appeal by special leave from the judgment and order dated September 1, 1955, of the Bombay High Court in Income tax Reference No. 37 of 1952. N. A. Palkhivala and I. N. Shroff, for the appellant. K. N. Rajagopala Ayyangar and D. Gupta, for the respondent. December 7. The Judgment of the Court was delivered by HIDAYATULLAH, J. The Raghuvanshi Mills Ltd., Bombay (a public limited Company), has filed this appeal by special leave against the judgment and orders of.the High Court of Bombay dated March 10, 1953, and September 1, 1955. By the first order, the Bombay High Court directed the Income tax Tribunal to submit a supplementary statement in the case in the light of its judgment, giving the parties liberty to lead further evidence, if any. By the second order, the High Court re framed the question, and answered it against the assessee. The assessee Company 's issued and subscribed capital was, at the material time, Rs. 10,00,000 divided into 10,000 shares of Rs. 100 each. Prior to 980 November 14, 1941, one Maganlal Parbhudas, who was a Director of the Company, held 6,344 shares. On November 14, 1941, he made a gift of 1,000 shares to each of his five sons, Ravindra, Surendra, Bipinchandra, Hareshchandra and Krishnakumar. We are concerned with the account year of the Company, April 1, 1942, to March 31, 1943, the assessment year being 1943 44. In that year, the dividend which was declared at the Annual General Meeting held on December 17, 1943, was less than what was required under section 23A of the Indian Income tax Act. The question, therefore, arose whether the Company could be said to be one to which section 23A(1) of the Act was applicable, regard being had to the third proviso and the Explanation under it. During the accounting period, the Company had eight Directors, whose names along with the shares respectively held by them are given below: Shares (1) Shri Maganlal Parbhudas 1,344 (2) Ravindra Maganlal 1,168 (3) Surendra Maganlal. 1,100 (4) Amritlal Chunilal (jointly with Babulal Chunilal). 833 (5) Babulal Chunilal. 100 (6) Bhagwandas Harakchand. 50 (7) Haridas Purshottam. 50 (8) Sir Chunilal B. Mehta (jointly with Lady Tapibai Chunilal) 50 Total 4,695 Out of the balance of the shares, 4,754 shares were held by the relatives of some of the above named Directors, as stated below: Shares (1) Shrimati Kantabai Maganlal (wife of a Director) 771 (2) Shri Bipinchandra Maganlal 1,000 (3) Shri Hareshchandra Maganlal (son of a Director) 1,000 (4) Shri Krishnakumar Maganlal (do) 1,000 981 (5) Shrimati Dhanlaxmi Mohanlal (6) Srimati Prabhavati Nanalal Harilal (5 and 6 daughters of a Director) 50 (7) Shri Hirjibhai Purshottam and Haridas Purshottam (brothers of a Director) 25 (8) Shri Dhanjibhai Purshottam and Haridas Purshottam (brothers of a Director) 25 (9) Shri Chimanlal Vithaldas (cousin of a Director) 833 Total 4,754 The remaining 551 shares were held by the members of the public, who were not connected with the Directors of the Company in any way. Before March, 1942, Messrs. Ravindra Maganlal and Bros. were the Managing Agents of the Company. Maganlal Parbhudas was the sole proprietor of that firm. On March 7, 1942, the Company appointed Ravindra Maganlal & Co. Ltd. as the Managing Agents for. a period of 20 years. The Managing Company had a total issued and subscribed capital of Rs. 5,000 and the five sons of Maganlal Parbhudas who have been named before had subscribed that capital equally. During the account year, Maganlal Parbhudas and two of his sons, Ravindra Maganlal and Surendra Maganlal, were three of the Directors of the Company. Ravindra, Surendra and Bipinchandra were Directors of the Managing Company. On these facts, the Income tax Officer applied section 23A (as it stood prior to its amendment by the Finance Act, 1955) to the Company, holding that this was not a Company in which the public were substantially interested. The order of the Income tax Officer was confirmed on appeal, both by the Appellate Assistant Commissioner and the Tribunal. The Tribunal also refused to state a case under section 66(1) of the Incometax Act, but the High Court of Bombay acting under section 66(2) called for a statement of the case on the question: "Whether on the facts and circumstances of the 124 982 case the provisions of section 23A of the Indian Income tax Act (XI of 1922) are applicable to the petitioners?" In stating the cases the Tribunal pointed out that probably the question ought to have been: "Whether on the facts and circumstances of the case 1,000 shares each held by Bipinchandra, Haresh chandra and Krishnakumar in the capital of the assessee Company are held by members of the public within the meaning of the Explanation to the third proviso to section 23A?" The members of the Tribunal in deciding the appeal before them, gave slightly different reasons. According to the Accountant Member, the shares held by persons interested in the Managing Company were under the control of the Directors of the appellant Company, and those persons could not be considered to be members of the public. The Judicial Member held that the Directors were controlling the shareholders of the Company, that their relatives were mere nominees, whose voting power was controlled by the Directors, and that the public could not, therefore, be said to be substantially interested, as required by the Explanation to the third proviso to the section. When the High Court heard the case, the learned Judges addressed themselves to the question, what was the proper meaning of the expression "held by the public" in the Explanation. They came to the conclusion that the object of the third proviso and the Explanation was that the voting power to be exercised by the public should be independent of the control of the Directors, and that the word "Public" was used in contradistinction to the Directors. They apparently thought that a holding by a Director could not be described, in any event, as a holding by the public. The High Court came to the tentative opinion that both the tests stated by the Accountant Member and the Judicial Member were incorrect, and held that what the law required was de facto control, 4 c a control which is, in fact, exercised," and that no finding appeared to have been given on that point by the Tribunal. The case was accordingly remitted to 983 the Tribunal for submission of a fresh statement of the case whether the Directors were exercising de facto control. over any of the other shareholders, who belonged to the second category mentioned by us above. The Tribunal thereupon re stated the case, and after examining further evidence, gave the finding that the Directors, particularly the three sons of Maganlal Parbhudas who formed the Directors of the Managing Company were under the de facto control of their father. At no stage in the case did the Tribunal alter the finding reached by the Department that the shares of the Company were not, in fact, freely transferable by the holders to members of the public. The High Court then reheard the case, and came to the conclusion that there was evidence on which the Tribunal could hold that Maganlal Parbhudas exercised de facto control over his three sons. In view of this finding, the High Court held that the order made by the Tribunal was correct, and answered the question in the negative, re framing it as follows: "Whether on the facts and circumstances of the case the shares held by Bipinchandra, Harishchandra and Krishnakumar can be considered to be shares held by members of the public within the meaning of the explanation to the third proviso to Section 23A?" The High Court refused to grant a certificate; but the Company has obtained special leave from this Court, and has filed this appeal. It is first contended that the test that the shares held by the Directors of a company are not shares in which the public are substantially interested is incorrect. According to learned counsel, all the authorities, the Tribunal and the High Court have proceeded on this wrong assumption, and have failed to apply the proper test laid down by the Explanation to the third proviso. It may be pointed out that there is no dispute that 551 shares, were, in fact, held by the public. The total shares of the Company being 10,000, the Company can only avoid the application of section 23A, if the public hold shares carrying not less than 25 per cent. of the voting power, that is to say, 2,500 shares. The Directors between them hold 4,695 shares. These 984 have been held by the High Court to be shares, which cannot be said to be beneficially held by the public. Even so, if the rest of the shares can be said to be held by the public, then the minimum 25 per cent. would still be reached. It was in this context that the shares of the sons of Maganlal, Bipinchandra, Harishchandra and Krishnakumar, were considered. If those shares can be said to fall outside the category of shares beneficially held by the public, then those shares along with the shares held by the Directors reduced the number of shares held by the remaining shareholders to less than 25 per cent. It was on this view that the case was remitted to the Tribunal by the High Court to obtain a further statement whether Maganlal Parbhudas was de facto controlling these three shareholders. Two questions, therefore, arise in this appeal. The first is whether the shares held by the Directors must always be regarded as not held by the public. The second is what is the meaning of the provision: "a company shall be deemed to be a company in which the public are substantially interested, if its shares carrying not less than twenty five per cent. of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public. " In this connection, we may point out that a ruling of the Privy Council appears to take a different view from that taken by the High Court, in regard to an Uganda Ordinance in pari materia with the proviso and the Explanation. We shall refer to that case as also to a case of the House of Lords, where also a different conclusion in law from that of the High Court has been reached. Section 23A (as it stood prior to its amendment in 1955), omitting the portions not material, read as follows: "23A. Power to assess individual members of certain companies. Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts for that 985 previous year are laid before the company in general meeting are less than sixty per cent. of the assessable income of the company of that previous year, as reduced by the amount of income tax and super tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a divi dend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income tax purposes and reduced by the amount of income tax and super tax payable by the company in respect thereof shall be deemed to have been distributed as dividends amongst the shareholders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income: . . . . . . . Provided further that this sub section shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary company is held by the parent company or by the nominees thereof. Explanation. For the purpose of this sub section a company shall be deemed to be a company in which the public are substantially interested if shares of the company carrying not less than twentyfive per cent. of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public. and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange or are in fact freely transferable by the holders to other members of the public. " It is clear from the third proviso that the sub section 986 does not apply to a company in which the public are substantially interested. The Explanation lays down, among the tests, the minimum interest which can be called substantial ' by saying that shares of the company carrying not less than 25 per cent. of the voting power must be allotted unconditionally to, or acquired unconditionally by, the public and they must be beneficially held by the public. The essence of the Explanation lies not in the percentage which only shows the limit of the minimum holding by the public, but lies in the words "unconditionally" and "beneficially". These words underline the fact that no person who holds a share or shares not for his own benefit but for the benefit of another and who does not exercise freely his voting power, can be said to belong to that body, which is designated 'public '. The word 'Public ' is used in contradistinction to one or more persons who act in unison and among whom the voting power constitutes a block. If such a block exists and possesses more than seventy five per cent. of the voting power, then the company cannot be said to be one in which the public are substantially interested. In Sardar Baldev Singh vs The Commissioner of Income tax, Delhi and Ajmer (1), this Court took the following view: "The section thus applies to a company in which at least 75 per cent. of the voting power lies in the hands of persons other than the public, which can only mean, a group of persons allied together in the same interest. The company would thus have to be one which is controlled by a group. The group can do what it likes with the affairs of the company, of course, within the bounds of the Companies Act. It lies solely in its hands to decide whether a dividend shall be declared or not. " judged from the test we have indicated, it is clear that such a group may be formed by the Directors of a company acting in concert, or by some Directors acting in concert with others or even by some , shareholder or shareholders, none of whom may be a Director. Such a group which may, for convenience, be (1) ; 987 designated a block, must hold a controlling interest, and if the voting power of the block is 75 per cent. or more, then obviously it can do anything at a meeting, whether general or special. When a company starts, the promoters may subscribe a portion of its capital and release the other unconditionally to the public. This is a case of unconditional allotment of shares to the public. The public may also unconditionally acquire a portion of the shares which were previously held by the group which promoted the company. If at the end of the previous year 25 per cent. or more of the voting power is so held by the public, the company can take the benefit of the third proviso. But if more than 75 per cent. of shares have again passed into the hands of a group which acts as a block, the third proviso ceases to apply. In deciding if there is such a controlling interest, there is no formula applicable to all cases. Relationship and position as Director are not by themselves decisive. If relatives act, not freely, but with others, they cannot be said to belong to that body, which is described as 'public ' in the Explanation. But it would be otherwise if they were free. Similarly, if Directors or some of them do not act as a body or in concert with others, the fact that they are Di rectors is of no significance. The case of Tatem Steam Navigation Co., Ltd. vs Commissioners of Inland Revenue (2) illustrates the first proposition. There, the assessing Commissioners had made directions under section 21 of the Finance Act, 1922, against which the Company appealed on the ground that it was a Company in which the public were substantially interested, inasmuch as shares of the Company carrving not less than 25 percent. of the voting power had been allotted unconditionally to or acquired unconditionally by, and were, at the end of the relevant periods, beneficially held by the public and the decision of the Special Commissioners that 16,000 shares given by Lord Glanely to his niece were not allotted to or acquired by the public and that the Company was, therefore, not (1) 988 a Company in which the public were "substantially interested" was erroneous. It was held by Lawrence, J., that merely because she was a niece of Lord Glanely did not make her cease to be a member of the public. The Court of Appeal agreed with Lawrence, J. No doubt, there were other provisions which laid down the kind of relationship which would lead to the inference that the holder was controlled by another, and a niece was not such a relative. The Act we are considering did not lay down the kind of relationship which would show such a control, and the same principle will apply. Mere relationship thus is not of consequence, unless control of the voting power held by such a relative, by another relative, is proved. The other test adopted in the case by the Bombay High Court that Directors stand outside the 'public ' is also not decisive. In Commissioner of Income tax vs H. Bjordal (1), the Judicial Committee dealt with section 21(1) of the Income Tax Ordinance No. 8 of 1940 (Uganda), as amended by section 5 of the Income Tax (Amendment) Ordinance, 1943. That provision of law is completely in pari materia with section 23A. Two brothers, H. Bjordal and section Bjordal, held 73.96 and 25.09 per cent. of the voting power. Five others held 04 per cent. of the voting power. The shares held by section Bjordal were purchased for full value by him from his brother. There was no suggestion that he was a nominee of the respondent or that he was acting in concert with his brother. Both brothers were Directors of the Company. It was held by the Judicial Committee that shareholders in a company who are members of the 'public ' do not cease to be so, because they become Directors. In the Uganda Ordinance also, like our Act, there was no guidance as to the meaning of the word 'public ', as there was in the English statute considered in Tatem 's case (2). It is significant that in Jubliee Mills Ltd. vs Commissioner of Income tax (3), Chagla, C. J., and section T. Desai, J., speaking of the judgment under appeal and (1) (2) (3) , 41. 989 taking into consideration the Privy Council case, observed: "It may be that our view is erroneous; and it may be and very probably it is that the view taken by the Privy Council is the right one. " In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to be.long to that group, be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word 'public '. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlal 's holding of 1,344 shares, makes up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The, question to be determined still is whether more than per cent. of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz.: "Whether on the facts and circumstances of the 125 990 case the provisions of section 23A of the Indian Income tax Act, XI of 1922, are applicable to the petitioners?" The High Court may call for a supplemental statement of the case from the Tribunal, if it finds it neces sary. The appeal is allowed. The respondents shall bear the costs of this appeal. The costs in the High Court shall abide the result. Appeal allowed. [/INST]By article 20(2) of the Constitution "No person shall be prose cuted and punished for the same offence more than once. " Section 26 of the , provides, "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. " The respondents were both convicted and sentenced by the Magistrate under section 409 Of the Indian Penal Code and section 105 Of the Insurance Act. The Sessions judge on appeal upheld the conviction and sentence under section 409 of the Indian Penal Code, but set aside the conviction and sentence under section 105 of the Insurance Act on the ground that no sanction under section 107 of the Insurance Act had been obtained. Sanction was thereafter obtained and a fresh complaint was filed against the respondents under section 105 of the Insurance Act. The trial ended in an acquittal by the Magistrate who held that article 20(2) Of the Constitution and also section 26 of the were a bar to conviction. The State appealed to the High Court against the 108 order of acquittal but the appeal was dismissed. On further appeal by the State, Held, that the crucial requirement to attract article 202) Of the Constitution is that the two offences should be identical. it is, therefore, necessary to analyse and compare the ingredients of the two offences, and not the allegations made in the two complaints, to see whether their identity is established. So judged, there can be no doubt that in spite of the presence of certain common elements between the two, the offences under section 409 of the Indian Penal Code and section, 105 of the Insurance Act are distinct in their ingredients, content and scope and cannot be said to be identical. Om Prakash Gupta vs State of U. P., ; and State of Madhya Pradesh vs Veereshw ar Rao Agnihotry; , , referred to. A similar view of the scope of the rule as to double jeopardy has always been taken by the American Courts. Albrecht vs United States, ; 71 Law Ed. 505, referred to. In section 26 of the also the emphasis is not on the facts alleged in the two complaints but on the ingredients of the two offences charged. This construction of article 20(2) of the Constitution and section 26 of the , is precisely in line with section 403(2) of the Code of Criminal Procedure. Consequently, it could not be said, in the instant case, that the respondents were being sought to be punished for the same offence so as to attract either article 20(2) Of the Constitution or section 26 of the . </s>

<s>[INST] Summarize the judgementAppeal No.793 of 1957. Appeal by special leave from the judgment and order dated September 20, of the Patna High Court in M.J.C. No. 392 of 1955. C. K. Daphtary, Solicitor General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant. section P. Varma, for respondents Nos. 1,2,6 8 and 10 23. 1958. November 4. The Judgment of the Court was delivered by BHAGWATI, J. This appeal with special leave is directed against the judgment of the High Court of Judicature at Patna dismissing the writ application of the appellant seeking to quash the proceedings in Miscellaneous Cases Nos. 26 and 27 of 1955 before the Industrial Tribunal, Bihar, Patna. Gaya Sugar Mills Ltd., a Company incorporated in 1934 owned a Sugar Factory at Guraru, District Gaya. An order for the compulsory winding up of the Company was passed on November 4,1951, and by a subsequent order dated February 1, 1952, one Dhansukh Lal Mehta was appointed liquidator of the Company. In order to preserve the aforesaid Sugar Mills at Guraru in proper running order and also for the beneficial 256 winding up of the Company the liquidator obtained under section III (b) of the Indian Companies Act sanction of the Court to lease out the said Mills with all the lands, factory and residential buildings and machineries etc. The Guraru Cane Development and Cane Marketing Union Ltd., were the former lessees of the said mills but on the expiration of their lease, the liquidator obtained from the Court an order on December 3, 1954, sanctioning the lease in favour of Shri Krishna Gyanody sugar Ltd .; the appellant herein, for the period December 5,1954 up to and inclusive of November 14,1955. The liquidator executed in favour of the appellant lease of the said Mills on December 6, 1954, and handed over possession of the same to the appellant the same day. The terms and conditions of the lease, in so far as they are material for our purposes provided that the appellant would be put into possession of the leasehold properties in a proper working order and would work and run the factory without any interference or obstruction by or on behalf of the lessor and would appropriate the entire income and profit thereof and the lessor would have no concern with profit or loss made by the lessee in running the said factory and would not be entitled to any sum or amount over and above the rent therein reserved. The appellant was not to be in any way liable or responsible for any of the liabi lities of the Company or of the liquidator or of the out going lessees incurred whether before or after the appellant entered into possession except those mentioned therein. The appellant was at its own cost entitled always to install 'any additional or other machinery or machineries and erect god owns or structures for the Purposes of and in connection with the running of the said Mills after intimation to the lessor. The appellant was not bound to engage any or all of the employees of the lessor or of the" Outgoing lessees or any of the persons who had been working from before except the 18 employees who were mentioned in Cl. 11 of the lease and the appellant also agreed not to retrench any staff already employed at that date in the Factory at Guraru (vide cl. 13(v),of the lease). The 257 properties demised by the said lease were deemed to be in the control of the Patna High Court and any dispute between the lessor and the appellant in respect of the said lease was to be placed before the said Court for decision and the decision made by the said Court was to be binding on all the parties. It appears that on December 2, 1954, i.e., 4 (lays before, the execution of the said lease and delivery of possession of the said Mills by the liquidator to the appellant, the; Government of Bihar issued a notification referring certain disputes between the Managements of the, Sugar factories specified in Appendix I thereto and their workmen represented by the Unions specified in Appendix It for adjudication to an Industrial Tribunal of which Shri Ali Hassan, the respondent No. 1 herein, was to be tile sole member. The terms of the reference stated : " Whereas the State Government is of opinion that ail Industrial dispute exists or is apprehended between the Management of the Sugar factories as specified in Appendix I and their workmen represented by the Unions as specified in Appendix 11 regarding the matters specified in Annexure A ; Now, therefore, in exercise of the powers conferred by section 7 read with sub section (1) of section 10 of the (XIV of 1947) and in supersession of Notification No. III/ DI 14020/54L15146 dated the 1st October, 1954, the Governor of Bihar is pleased to constitute an Industrial Tribunal of which Mr. Ali Hussan shall be the sole member and to refer the said dispute to the said Tribunal for adjudication. Annexure "A" 1. Retaining allowance to seasonal employees in Sugar factories in Bihar. Leave and holidays to the employees including seasonal employees in Sugar factories. Whether the deduction made in leave and holidays of the employees of the Management of the Sugar factories is unjustified and if so what compensation or relief, the workmen are entitled to 33 258 There were as many as 28 Sugar factories specified in Appendix I and as many as 38 Labour Unions specified in Appendix 11. The Gaya Sugar Mills Ltd., Guraru was the second item in Appendix I and the Chini Mazdoor Sangh Guraru was mentioned at the third item in Appendix 11. The respondent No. 1 entered upon the said reference. Even though Gaya Sugar Mills Ltd., Guraru which was then in liquidation was not specifically described as such in Appendix 1, notice was given to the, liquidator by the respondent No. 1 for January 11, 1955, which was the date fixed for hearing before him. The said letter however reached the liquidator on January 13, 1955, whereupon by his letter dated January 14, 1955, he informed respondent No.1 about it. Respondent No. 1 however satisfied himself by merely endorsing on the letter of the liquidator that the hearing had already concluded and nothing further than inquiring of the post office as to the reason of the delay in the delivery of the letter could be done. Respondent No.1 made his award on February 17, 1955, and it was published in the Official Gazette on February 23, 1955. The adjudication proceedings which had thus commenced on the date of the reference viz., December 2, 1954, came to a conclusion on the expiry of 30 days of the publication of the award viz., on March 25, 1955, under section 20(3) of the . It appears that an appeal was taken to the Labour Appellate Tribunal against this award and the appeal was decided on August 31, 1956. Even though the appellant was in possession of the said Mills under the terms of the lease dated December 6, 1954, no notice was given by respondent No. 1 to the appellant and the appellant therefore could not and did not appear before respondent No. 1. So far as the appellant was concerned the proceedings before respondent No. 1 were ex parte. Two applications were, however, made on March 23, 1955, under section 33A of the , one by 15 persons alleging that the appellant had without any reason and without any notice discharged them from employ one by one during the months of January and February 259 1955 and the other by 5 persons alleging that the appellant had changed their conditions of service without any reason, contending that the said discharges and the change in conditions of service had been effected by the appellant during the pendency of the disputes before the Industrial Tribunal aforesaid without the permission of the Industrial Tribunal having been obtained under section 33 of the Act. These applications were numbered as Miscellaneous Cases Nos. 26 and 27 of 1955 and the appellant received on April 7, 1955, two notices from respondent No. 1, both dated March 25, 1955, informing the appellant about the filing of the two miscellaneous cases and calling upon the appellant to file statements showing cause by April 19, 1955. The appellant accordingly filed before respondent No. 1 two applications or statements contending inter alia that the application under section 33 A of the , filed by those persons (respondents Nos. 4 to 23 herein) were not maintain. able and were otherwise fit to be rejected. It was asserted on behalf of the appellant that the appellant as lessee of the said Mills had strictly complied with the terms and conditions of the lease and there had been no contravention on its part of section 33 of the Act, in regard to any of the workmen concerned in the aforesaid two miscellaneous cases. It was pointed out that none of the persons who had filed the said applications was comprised in the 18 persons who were specifically mentioned in Cl. 11 of the lease and who were specifically exempted from the operation of the said clause nor were they comprised in the category of members of the staff whom the appellant as lessee, was not entitled to retrench under Cl. 13(v) of the lease, with the result that none of the said clauses of the lease could be said to have been violated by the appellant. On July 13, 1955, the appellant filed in the High Court of Judicature at Patna a writ application under articles 226 and 227 of the Constitution being Miscellaneous Judicial Case No. 392 of 1955 impleading the Chairman, Industrial Tribunal, Bihar as respondent No. 1, the State of Bihar as respondent No. 2, the liquidator as respondent No. 3 and the applicants in 260 the said miscellaneous cases Nos. 26 and 27 of 1955 pending before the Industrial Tribunal as respondents 'Nos. 4 to 23 for a writ of certiorari quashing the said Miscellaneous Cases Nos. 26 and 27 of 1955, a writ of Mandamus restraining the respondent No. 1 from proceeding with or otherwise dealing with the said miscellaneous cases costs and further and other reliefs. The main Contentions urged by the appellant in the said petition were: (1) that under each one of the points referred for adjudication, considerable burden was sought to be imposed on the sugar factories concerned ; that all the properties and effects of the Gay Sugar Mills Ltd., were in the custody of the Court as from the date of the order for Winding up viz., November 14,1951 ; that ,the said notification did not purport to include Gaya Sugar Mills Ltd., in that light and did not describe the company as having already gone into liquidation ; that no leave of the Court was obtained before commencing or continuing the proceedings before the Tribunal and in fact the liquidator was neither named as a party nor was any notice given to him of the commencement of the proceedings and that therefore go far as the Gava Stugar Mills Ltd., (In Liquidation) was concerned there was no proceedingly in the eye of the law before respondent No. 1 and as such the Miscellaneous Cases Nos. 26 and 27 of 1955 of which notices had been sent to the appellant were not maintainable; and (2) that no notice of the adjudication proceedings arising out of the aforesaid Notification dated December 2, 1954, " as at any stage given to the appellant who was in possession under the terms of the lease granted by the Court ; that the appellant being lessee under orders and under terms of the lease approved by the Court was liable for breach of the terms of the lease, if any, and that also to the Court alone; that there was no violation of section 33 of the , if the appellant bona fide acted up to the terms of the lease and being itself no party to any adjudication proceedings before any Tribunal or before respondent No. 1 there could be no breach of section 33 of 261 the Act and as such no application under section 33A.of the, Act could be maintained against the appellant. No affidavit in reply was filed by or on behalf of any of the respondents and the application came up for hearing before Ramaswami, C. J. and Raj Kishore Prasad, J. who delivered the judgment of the Court on September 20, 1956, dismissing the application with costs. Assuming but without, expressing any opinion that the reference made by the State Government under section 10(1) of the Industrial Disputes Act was a legal proceeding within the meaning of section 171 of the Indian Companies Act the High Court held that section 10(1) of the Industrial , Disputes Act, was not controlled by section 171 of the Indian Companies Act and therefore no leave of the Court was necessary before making a reference of the Industrial Disputes under section 10 (1) of the Industrial Disputes, Act. It was also of opinion that even though the reference under section 10(1) of the Industrial Dispute Act was made by the State Government on December 2, 1954, and the applicant had taken the lease of the said Mills subsequently i. e., on December 6, 1954, the applicant was an " employer " within the meaning of the term used in sections 33 and 33A of the Act, and that it was not necessary for the application of either of those sections that the employer who discharges or punishes the workmen or who alters the conditions of service of the workmen should be the identical employer concerned in the industrial dispute which is the subject matter of adjudication. It was sufficient for invoking the provisions of either of those sections that there is the relationship of employer and employee at the time the workman is discharged or punished or at the time his conditions of service are altered to his prejudice. It was further of opinion that even though the liquidator was not made a party to the reference made by the State Government under section 10(1) of the , the Gaya Sugar Mills Ltd., Guraru was specifically mentioned as one. of the parties in Appendix I, that the Gaya Sugar Mills Ltd., continued to be a legal personality though an order for winding up had been made and that there 262 fore the Company was properly made a party to the reference under section 10(1) of the Act. The fact that the notice given to the liquidator on January 11, 1955, might have been received late by the liquidator did not, in the opinion of the Court, make any difference to the position inasmuch as the award of the Industrial Tribunal was made on February 17, 1955, i. e., long after the date of the notice and there was no lack of jurisdiction in the Industrial Tribunal to make the award valid and binding on the Gaya Sugar Mills Ltd., Guraru. The High Court accordingly rejected the application as stated above. The applicant applied for leave to appeal to this Court on November 9, 1956, but the High Court refused to grant the certificate on the ground that the proceeding for grant of a writ of certiorari under article 226 is not a civil proceeding within the meaning of article 133 of the Constitution. The applicant thereupon applied for and obtained from this Court on April 1, 1957, special leave to appeal and the appeal has now come up for hearing and final disposal before us. The two main contentions which were urged before us by the learned Counsel for the appellant were: (1) that the Gaya Sugar Mills Ltd., Guraru had been taken into liquidation and respondent No. 3 had been appointed the liquidator thereof; that the reference made by the State Government to the Industrial Tribunal on December 2, 1954, involved considerable financial burden on the said Mills and the State Government ought to have obtained the sanction of the Court under section 171 of the Indian Companies Act before making a reference of the industrial disputes to the Industrial Tribunal under section 10(1) of the , qua the said Mills and that not having been done, the reference was bad in law and there was no question of the applicability of either section 33 or section 33A of the Act, and (2) that on a true construction of sections 33 and 33A of the Act, the " employer " therein mentioned could only be the " employer " concerned in the industrial dispute which was the subject matter of reference, that the applicant had taken the lease of the said: 263 sugar Mills on December 6, 1954, 4 days after the date of reference made by the State Government under, section 10(1) of the Act, and that therefore the applicant was not an " employer " within the meaning of the terms as used in section 33 or section 33A of the Act, and even if the allegations made by the applicants in Miscellaneous Cases Nos. 26 and 27 of 1955 before respondent No. 1 were correct, it was not necessary for the applicant to have obtained the permission of the Industrial Tribunal under a. 33 of the Act, and therefore the said applications under section 33A of the Act, filed by res pondents 4 to 23 were not maintainable. It will be appropriate at this stage to set out the relevant sections of the Indian Companies Act and the (as they then stood) which fall to be considered by us in this appeal. section 171 (Indian Companies Act): " Suits stayed on winding up order: When a winding up order has been made or a provisional liquidator has been appointed no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose. " S.10(1) (Industrial Disputes Act, 1947):Reference of disputes to Boards, Courts or Tribunals: Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry or (c) refer the. dispute or any matter appearing to be connected with or relevant to, the dispute to a Tribunal for adjudication: Provided that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so 264 to do, make a reference under this subsection not withstanding that any other proceedings under this Act in respect of the dispute may have commenced," section 33 (Ibid): Conditions of service etc., to remain unchanged during pendency of proceedings During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall (a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable, to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be." 33 A (Ibid): Special provisions for adjudication as to whether conditions of service etc., changed during pendency of proceedings: " Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provision of this Act shall apply accordingly. " As to (1): Section 171 of the Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leave.of the winding up Court and subject to such terms as the Court may impose. The Court is in custody of all. the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets: and, the equitable, 265 distribution thereof amongst the creditors of the Company. No suit or other legal proceeding can therefore be proceeded with or, commenced against the ' Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding. In order to decide the question of the applicability of section 171 of the Indian Companies Act it has to be ascertained (a) whether the reference in question is a proceeding against the Company, and, if So (b) whether such reference can be said to be a legal proceeding within the meaning of section 171 of the Indian Companies Act. There has been unfortunately a considerable confusion of thought in the court below and the facts have not been properly appreciated. The first question to determine was who was the party to the reference. It appears to have been assumed that the Gay a Sugar Mills Ltd., was a party to the reference and that the only defect in the order of reference was that the liquidator was not made a party to the refer ence. This difficulty was sought to be got over by holding that the Gaya Sugar Mills Ltd., continued to be a legal personality though an order for winding up had been made, that the Company had not ceased to exist as a legal. entity, and, therefore, the Company was properly made a party to the reference under section 10(1) of the . This was, however, not the correct position on a true interpretation of the terms of reference. The reference was between the managements of the Sugar factories specified in Appendix I and their workmen represented by the Unions specified in Appendix 11. Gaya Sugar Mills Ltd., Guraru was mentioned as item 2 in Appendix I but it is quite clear that what was intended to be made a party to the reference under this item was the: management of the Sugar factory which belonged to the Company called the Gaya Sugar Mills Ltd., whoever. that management may be. The mention of the Company was to indicate and to point out the particular factory whose management for the time being was to be one of the parties to the reference and 34 266 it required to be ascertained who was comprised within the " management " of the Mills. The State Government could not have been oblivious of the fact that the Company had gone into liquidation and a liquidator of the Company had been appointed by the court and was leasing out the factory to different lessees. If the Company itself were a party to the reference the liquidator ought to have been mentioned there as such but that apparently was not done for the simple reason that the factory was being worked by the lessees under the terms of the leases duly sanctioned by the court. The liquidator was therefore not in management of the factory and the only persons who were in management were the then lessees to whom leases were granted by the liquidator with the sanction of the court. The Industrial Tribunal was obviously in error when it gave notice of the proceedings to the liquidator. The liquidator was no more in management of the factory and was therefore not entitled to be served with any notice; the then lessees were in management and they were the only parties to whom notice of the proceedings should have been given. The liquidator no doubt wrote to the Industrial Tribunal that he had received the notice too late for him to attend. This letter of the liquidator was treated with scant courtesy by the Industrial Tribunal who merely endorsed at the foot of the letter that the hearing had already concluded and nothing further than enquiring of the Post Office as to the reason of the delay in the delivery of the letter could be done. The Industrial Tribunal proceeded to make its award on February 17, 1955, without having before it the management of the factory, viz., the lessees who had obtained the lease of the said Mills from the liquidator and for all practical purposes the said award was ex parte so far as the lessees who were at the date of the reference in management of the factory and were obviously intended to be a party to the reference were concerned. The appellant came into management of the factory after the reference and could not at the date of the reference be in contemplation of the State Government as a party and in any 267 event, no notice whatever was given to the appellant ' of the proceedings before the Tribunal. By no stretch of imagination could it be said that the Company (In Liquidation) was a party to the reference, the said Mills having been given on lease to the lessees who worked the Mills thereafter not for and on behalf of the Company but on their own account, they being responsible for the profit and loss in the working of the Mills. The Company thus not being a party to the reference the proceedings which were commenced on December 2, 1954, before the Tribunal were not proceedings against the Company (In Liquidation). This being the position on a true construction of the terms of the notification by which the reference was made the question whether the reference was a legal proceeding within the meaning of section 171 Of the Indian Companies Act does not arise for our decision and we prefer not to express any opinion on that part of the question. As to (2): The next question to consider is the connotation of the term " employer " as used in sections 33 and 33A of the . These sections postulate the pendency of a proceeding of an industrial dispute. It requires two to raise a dispute. An Industrial Dispute is thus defined in section 2(k) of the Act:,, Industrial dispute " means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with conditions of labour, of any person. If this definition is bodily lifted from section 2 (k) and substituted for the expression " industrial dispute " ,occurring in section 33 and sections 33 and 33A of the Act are then read, it will at once become clear that the employer can be no other than the employer with whom the workers had the industrial dispute and cannot mean merely an employ who discharges or punishes or who alters the conditions of service of the workmen concerned. If the interpretation adopted by the High Court was correct it would mean that the Industrial 668 dispute which is referred for adjudication to the Industrial Tribunal may have arisen between employer A and his workmen but during the pendency of those proceedings employer B who had nothing to do with employer A would be prevented from discharging or punishing the workmen or altering their conditions of service, provided only that the workmen concerned happened to be interested in the industrial dispute which was pending before the Industrial Tribunal. If there is no connection at all between the employer A and the employer B in the illustration given above, one fails to see how a mere identity of the establishments or the identity of the workmen could be enough to bring the employer B within the purview of these sections. The very purpose of the enactment of as. 33 and 33A of the is, as observed by this Court in the Automobile Products of India Ltd. vs Bukmaji Bala (1). " to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. " The scope of the enquiry under section 33 of the has also been the subject matter of adjudication by this Court and it was held in Atherton West & Co., Ltd. vs Suti Mill Mazdoor Union (2) that the authority: " concerned would institute an enquiry and come to the conclusion whether there was a prima facie case (1) [1955] i S.C.R. 1241, 1256. (2) ; , 787. 269 made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. " A similar ratio would apply where an employer changes the conditions of service of the workmen concerned. If this be the criterion for determining whether an employer was entitled to discharge or punish the workmen or alter their conditions of service without the permission in writing of the authority concerned that employer cannot be any other than the one who is concerned in the industrial dispute which is the subject matter of adjudication. If employer B has nothing to do at all with employer A who is really the party concerned in such industrial dispute which is the subject matter of adjudication, there will be no question of attributing any improper motives or unfair practice or victimization to the employer B in regard to the action which he proposed to take against the workmen. Whether the employer B would be entitled to such action or not would have to be determined in other proceedings which may be taken in the matter of industrial disputes which may subsequently arise between himself and his workmen after such action was taken. But he would certainly not be bound before taking such action to seek the permission in writing of the Industrial Tribunal before which an industrial dispute was pending as between those workmen and another employer with whom he had no concern. The latter interpretation is therefore more in consonance with the principle underlying the enactment of section 33 of the and it must be held that the employer contemplated by sections 33 and 33A of the must be the identical employer concerned in the industrial dispute which is the subject matter of adjudication. In other words, the employer contemplated by sections 33 and 33A of the must be the employer with whom the workmen mentioned as aggrieved under section 33 had a subsisting relationship of employer 270 and employees at the commencement of the proceedings referred to in those sections. The identity of the employer at the commencement of the reference with the employer who intends to take proceedings within the ban of section 33 of the Act must be established and if the latter has no concern with or relationship with the former sections 33 and 33A of the Act do not dome into operation at all. Such identity could in the event of change in the employers be established by showing that the latter employer was merely a nominee or Benamidar of the former or that on the analogy of section 18(3)(c) of the he came with in the description of " his heirs, successors or assigns in respect of the establishment to which the dispute relates, in which event the award made by the Indus. trial Tribunal would be binding on him just as much as on the former employer of the workmen concerned. These are, however, the only cases in which according to the provisions of the the identity of the employers at the commencement of the proceedings and the intended discharge or punishment or change in the conditions of service of the workmen concerned could be established and unless the employer who intended to discharge or punish or change the conditions of service of the workmen was in this sense identical with the employer who was concerned in the industrial dispute which is the subject matter of adjudication no question could arise of the operation of section 33 or section 33A of the . What then was the position of the appellant under the reference in question ? It does not appear from the record as to who was the management of the said Mills on December 2, 1954. The lease in favour of the old lessees, Guraru Cane Development and Cane Marketing Union Ltd., had apparently come to an end by efflux of time, the period of the lease presumably being up to the end of the crushing season which would end some time in the month of November, 1954. An application had been made by the liquidator to grant a lease in favour of the appellant and this application was granted by the Court on December 3, 1954, so that in any event before December 3, 1954, the appellant could 271 not be said to be in management of 'the said Mills. As a matter of fact, the lease was executed in favour of the appellant on December 6, 1954, and the possession of the said Mills was also given to the appellant by the liquidator on the same day. It could not, therefore, be said that the appellant was comprised within the description of the management of the Gaya Sugar Mills Ltd., at the date when the reference was made by the State Government. If that was so, a reference Of a previous date, without anything more, could not comprise the appellant within its scope and that appears to have been the position as understood even by the Industrial Tribunal which gave no notice to the appellant but gave notice of the proceedings erroneously as we hold to the liquidator of the Company. The appellant was not in management of the said Mills and it could not be bound by the reference because at no stage was any attempt made either to amend the terms of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal. Under the Industrial Disputes (Central) Rules, 1947, enacted by the Central Government in exercise of the powers conferred upon it by section 38 of the , intimation of the place and time of hearing had got to be given to the parties to the reference (Rule 10); and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case (Rule 11) the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown (Rule 19) ; and the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination, cross examination and of addressing the Tribunal when evidence had been called (Rule 24) : The 'whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the Industrial Tribunal and taking part therein either by themselves or through, their authorised representatives. The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circum 272 stances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on December 2, 1954, that the appellant, which came into existence as the lessees of the said Mills on December 6, 1954, was a party to the said reference. If the old lessees were in management of the said Mills on December 2 1954, there was no identity of employers as between them and the appellant, the appellant certainly did not claim under the old lessees nor could it be described as their " heirs, successors or assigns " in respect of the establishment to which the dispute related within the meaning of section 18(3) (c) of the , There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees. In no event could the appellant therefore be held to be, bound either by the reference or the award made by the Industrial Tribunal, the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under section 33 A of the were purported to be done by them not having been established. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under section 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, section 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 we 're not maintainable. The result is no doubt unfortunate ; because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd., at all relevant times. The appellant came in management of the said Mills from and after December 6, 1954, and it was certainly intended that these, disputes which had either existed or were apprehended between the appellant on the one hand and the workmen 273 working in the said Mills on the other should be adjudicated upon under the terms of that reference. If the appellant could be comprised within the description of the " management " of the said Mills at the date of the reference, viz., December 2, 1954, the object and the purpose of the reference qua the workmen of the said Mills would be accomplished. The difficulty, however, is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term "managements of the Sugar factories specified in Appendix I" even though the Gaya Sugar Mills Ltd., Guraru is mentioned as item 2 therein. Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued, fresh statements of case to be furnished, fresh hearing to be granted, to each of the successive lessees under the Industrial Disputes (Central) Rules, 1947, a result which certainly could not have been contemplated by the State Government when the reference was made. It, therefore, follows that the appellant was not by any count a party to the reference dated December 2, 1954, and not being such a party was not an "employer" within the meaning of sections 33 and 33 A of the qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under section 10(1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under section 33 A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the 35 274 Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under section 33 A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct. The result, therefore, is that the proceedings in Mis cellaneous Cases Nos. 26 and 27 of 1955 before the res pondent No. 1, Industrial Tribunal, Bihar, Patna are without jurisdiction and liable to be quashed. The appeal of the appellant will therefore be allowed, the order made by the High Court on September 20, 1956, will be set aside and a writ of certiorari will issue against respondent No. 1 quashing the proceedings in the said Miscellaneous Cases Nos. 26 and 27 of 1955. The appellant will be entitled to its costs throughout against the contesting respondents. Appeal allowed. [/INST]The contract workers engaged by the management of the Tata Iron and Steel Company Ltd., Jamshedpur in the perma nent and regular nature of work before February 11, 1981 in (1) transportation of materials within the plant which was not dependent on outside supply, (2) processes connected with manufacturing process, (3) removal and handling of waste products, and (4) sweeping and cleaning of machines etc., sought permanent employment under the principal em ployer. The dispute was referred by the State Government under section 10 of the to the Industrial Tribunal. The Tribunal held that the workmen constituted the contract labour and, therefore, the reference was not main tainable. It further held that action, if any, had to be taken under section 10 of the , power to take steps for which vested in the State Government and not in the Tribunal. The writ petition challenging the award was dismissed by the High Court in limine. In the appeal by special leave it was brought to the notice of the Court on behalf of the management that con tract labour was now confined to item 3 only. Disposing of the appeal, the Court ordered: 1. The reference to the Tribunal shall now read: "Wheth er the contract workers engaged by the management of the Tata Iron and Steel Company Ltd., Jamshedpur in the perma nent and regular nature of work before 11.2.1981 are enti tled to permanent employment in 978 regard to items 1, 2 and 4 under the principal employer". [980B C] 2. The State Government to take its own decision within three months under the provisions of the in regard to item No. 3 as to whether the contract labour employment should be terminated. [980D] 3. The Tribunal to dispose of the dispute within six months. [980F] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1068 of 1987. From the Judgment and Order dated 16.5.86 of the Patna High Court in Civil Writ Jurisdiction Case No. 2523 of 1981. A.K. Sil and S.K. Sinha for the Appellants. D.N. Goburdhan for the Respondents. The following Order of the Court was delivered: O R D E R The 1st respondent Subodh Chandra is working as an operator grade III under the Hindustan Fertilizer Corporation Ltd. at Sindhri. The date of birth recorded in the register maintained by the Hindustan Fertilizer Corporation Ltd. was 1.6.1931 and in the usual course he has to retire from service on 1.6.1989 on completion of 58 years of age. He, however, filed a writ petition in the High Court of Patna claiming that his date of birth should be altered to 20th October, 1938. In support of his case he relied on a certificate issued by the Chief Medical Officer, Sindhri. The petition was contested by the Hindustan Fertilizer Corporation of India Ltd. After hearing the learned counsel for the parties, the learned Judge who heard the petition held that it was not possible to accept the case of the 1st respondent that he was born in the year 1938 and he further found that the date of birth as recorded in the register of the Corporation should not be interfered with. The learned Judge, however, passed the following order: "section Shamsul Hasan, J.: After the matter had been heard at great length and legal and factual pros and cons had been examined it appeared that the year of the birth of the petitioner being 1931 cannot be assailed nor interfered with. Consequently, Mr. Ojha felt that since the petitioner has his problem domestic or otherwise and he in 1971 was in fact given to understand that his year of birth would be 1938, some compassionate endowment may be made in his favour. I am entirely in agreement with Mr. Ojha. I, therefore, dispose of this application with an expression of my desire, which may be treated as a mandate, that the petitioner may be given three more years of service as a 864 special case after his due date of retirement, which could be done by reappointing him for that period. It is made clear that this may not be treated as a precedent for any other employee of the Institution or in any other case. " We are of opinion that the learned Single Judge having found that the date of birth of the 1st respondent as recorded in the register of the appellant Corporation should not be interfered with, committed a serious error in making an order directing the appellant Corporation 'as a special case ' to reappoint the 1st respondent for a period of three more years after his 'due date of retirement ', which is 1.6.1989. There was hardly any justification for passing such an order under Article 226 of the Constitution. The reason given by the High Court is wholly untenable. This appeal filed by the Corporation against the order passed by the learned Single Judge before this Court has, therefore, to be allowed. We set aside the judgment of the High Court and dismiss the writ petition filed by the 1st respondent. The appeal is disposed of accordingly. No order as to costs. N.P.V. Appeal allowed. [/INST]The appellant was charged under section 120 B of the Indian Penal Code and section 167(8i) of the Sea Customs Act, i878, which were bailable offences, and was released on bail by the Chief Presidency Magistrate under section 496 of the Code of Criminal Procedure. An application made subsequently by the complainant for cancellation of the bail was dismissed by the Magistrate on the ground that under section 496 he had no jurisdiction to cancel the bail. The complainant invoked the inherent power of the High Court under section 561A of the Code and the High Court took the view that under that section it had inherent power to cancel the bail,and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large, it cancelled the bail. On appeal to the Supreme Court: Held, that though under section 496 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release is found to be prejudicial to a fair trial, he forfeits his right to be released on bail and such forfeiture can be made effective by invoking the inherent power of the High Court under section 561A of the Code. But the inherent power has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. Lala jairam Das & Others vs King Emperor, (1945) L.R. 72 I.A. 120, distinguished. </s>

<s>[INST] Summarize the judgementivil Appeal Nos. 1856 61 of 1974 etc. From the Judgment and order dated 16.1.1974 of the Andhra Pradesh High Court in Case Referred No 2 of 1977 V.S. Desai, Ms. A. Subhashini and B.B. Ahuja for the Appellant. Y.Ratnakar and D.N. Misra for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals have been preferred by the Revenue against the common judgment of the High Court of Andhra Pradesh answering the following questions in favour of the assessee: "(1) Whether, on the facts and in the circumstances of the case, the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed dated s 10.5.1950 can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66? (2) If the answer to the above question is in the affirmative, whether the assessments made under section 148 of the Act for the assessment years 1960 61 and 1961 62 were legal and valid?" By a Deed of Trust dated May 10, 1950 the Nizam of Hyderabad created a Family Trust. A corpus of nine crores in Government securities was transferred to the trustees under that Deed. The corpus was notionally divided into 175 equal units. Five units were to constitute a fund called the 'Reserve Fund ', and 3 1/2 units were to constitute the 'Family Trust Expenses Account". The remaining 166 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein, the number of units allocated to each individual relative being specified there. Two clauses of the Trust Deed hold the centre of the stage in 976 these appeals~. Clause 6 creates a Reserve Fund comprising five equal units of the corpus of the Trust Fund. The trustees hold the Reserve Fund upon trust to apply the income or corpus thereof for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the Settlor 's family specified in the Schedule. Additionally, if the income of the Family Trust Expenses Account is insufficiently meet the charges of collection of the income of the Trust Fund and the remuneration of the trustees and of the Committee of Management and the other costs, charged, expenses and outgoings relating to the Trust, the trustees are enjoined to make good such deficit out of the income or corpus of the Reserve Fund, and for that purpose they may transfer to the Family Trust Expenses Account such sums as may be required. It is further provided that on the death of any of the Settlor 's relatives specified in the Schedule the trustees must set apart out of the Reserve Fund a certain portion calculated in accordance with the directions contained in the clause and to add such portion to the units of the corpus of the Trust Fund allocated to the member specified in the Schedule and to amalgamate the same, and to hold it upon the same trusts as those hereinafter declared and contained of and concerning the unit or units of the corpus of the Trust Fund allocated to such relative of the settlor as aforesaid. ' Clause 7 directs the trustees to hold 3 1/2 equal units of the corpus of the Trust Fund allocated to the Family Trust Expenses Account, and to apply the net income of that Fund to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the Trust. There is a further provision. After all the other Trusts constituted under the Deed have been fully administered and carried out and the corpuses of all such units have been handed over and transferred to the ultimate respective beneficiaries the trustees are enjoined to transfer and hand over the 3 1/2 units comprising the Family Trust Expenses Account to the Settlor 's successor who may be describe as the Nizam of by any other title or rank or designation, and failing such person, to the eldest male descendant in the direct male line of succession of the Settlor accordmg to the rule of primogeniture. For the assessment year 1959 60 and the assessment years prior thereto the incomes accruing to the Reserve Fund and the Family Trust Expenses Account were aggregated in a single assessment made on the trustees of the Nizam 's Family Trust. But thereafter the asses 977 see 's appeals having been allowed by the Appellate Assistant Commissioner of Income tax against the assessments for the years 1955 56 to 1959 60, the incomes of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62, the assessee being described in the one case as the trustees of the Nizam 's Family Trust Reserve Fund, and in the other as the trustees of the Nizam 's Family Trust Expenses Account. Subsequently, the Income tax officer being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. Following the same line, he made separate original assessments for the assessment years 1962 63 to 1965 66. On appeal by the assessee, the Appellate Assistant Commissioner relied on an order of the Appellate Tribunal in the Wealth Tax Appeals pertaining to the same trust arrangements and cancelled the assessments for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the Appellate Assistant Commissioner was upheld by the Appellate Tribunal and the appeals were dismissed. Upon that, the Revenue obtained a reference to the High Court of Andhra Pradesh on the two questions of law set forth earlier for the assessment years 1960 61 to 1965 66. By its judgment dated January 16, 1974 the High Court answered both the questions in the negative. And hence these appeals. For the subsequent assessment years 1967 68 to 1970 71 the High Court adopted the same view in regard to the first question. The second question did not arise for those assessment years. Special Leave Petition Nos. 4171 to 4174 of 1978 have been filed against the judgment of the High Court in those cases. We grant special leave, and the consequent appeals are also being disposed of by this judgment. The primary question in these appeals is whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizam 's Family Trust can be assessed separately or must be aggregated in a single assessment. It seems to us clear that by the Deed of Trust dated May 10, 1950 the Nizam created a number of separate and distinct Trusts. They were created for specific and distinct purposes, and although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund 978 under those separate trusts. That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be treated as notionally divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule, 166 1/2 units being apportioned between the relatives in the proportion set out, five equal units to constitute the Reserve Fund and the last 3 1/2 equal units to constitute the Family Trust Expenses Account. There is no doubt that separate funds were thus created, even though the division of the original Trust Fund may have been notional. There is also no denying that it is open to a Settlor to constitute two or more distinct trusts by a single document. See Commissioner of Income tax, Bombay vs Manilal Dhanji, , 886. The entire position becomes absolutely clear if regard is had to clause 10 of the Trust Deed which permits the trustees to have separate Trust Deeds made and executed in respect of the different funds carved out of the 175 equal units of the corpus of the Trust Fund. It is also apparent that the objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication. There is also no intermingling of the Funds. It is true that if there is a deficit in the Family Trust Expenses Account, a definite portion of the income or corpus of the Reserve Fund has to be transferred to the Family Trust Expenses Account. But the two Funds, remain distinct from each other at all times, The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts. A further indication evidencing the creation of two distinct Trusts is the completely different manner of disposal of the corpus of the two Funds. As regards the Reserve Fund we have seen that on the death of any of the Settlor 's relatives a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such members, and the amounts so amalgamated are to be applied in accordance with the terms of the Trust Deed mentioned earlier. In the case of the Family Trust Expenses Account, the corpus of that Fund has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and failing him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture. We agree with the High Court that the Settlor intended to create 979 separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately. The first question in these Appeals is therefore answered in the negative, in favour of the assessee and against the Revenue. Inasmuch as the answer to the first question is in the negative, the second question does not arise and we need not consider that question in these Appeals. The Appeals are dismissed with costs. M.L.A. Appeals dismissed. [/INST]Respondents I and 2 filed a suit against the petitioners/defendants claiming damages of Rs.1000 crores from the petitioners for causing loss to movable and immovable properties of the various Gurdwaras being administered and managed by respondent No. 1 under the provisions of the Punjab Sikh Gurdwaras Act, 1925 during the period from June to September 84. They also sought mandatory injunction directing the petitioners and their principal functionaries to tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and also for causing deep sense of injury to the honour and self respect of Sikhs who are law abiding citizens. Besides, an application to sue as indigent persons under order 33, Rule l and 2 of the Code of Civil Procedure was filed. It was alleged in the plaint that on 3rd June, 1984 the Martyrdom day of Shri Guru Arjun Devji, when a large number of devotees came to the Golden Temple complex at Amritsar to commemorate the said occasion the various units of the Armed Forces under the employment of the petitioners as well as Police units under the employment of petitioners and the Government of Punjab with malice launched an attack in the Golden temple complex by resort to indiscriminate and barbaric firing. The defence of the petitioners was that it was an Act of State necessary for the security and integrity of the State and that the action taken was an exercise of sovereign power in respect of sovereign acts. The petitioners in view of the extra ordinary situation prevailing in the State of Punjab in general and in Amritsar in particular moved the present transfer petition under section 25 of the Code of Civil Procedure, aver 473 ring that it is not possible to have a fair trial of the case in Amritsar or other parts of Punjab since the suit is an unusual one and tiled at a critical time in Punjab. The question is whether the ends of justice requires the transfer of the suit from the State of Punjab to any other State. Allowing the petition, the Court, ^ HELD: 1. The power of the Supreme Court to transfer a suit or proceeding from one State to another State is a power which should be used with circumspection and caution but if the ends of justice so demand in an appropriate case, the Court should not hesitate to act. One of the highest principles in the administration of law is that justice should not only to be done but should be seen to be done. [476D E;C] 2. In this case, in view of the nature of allegations regarding some of the respondents who have been added. strong feelings are likely to be roused in some section of community. In such an atmosphere to meet the ends of justice it would be desirable to have the case transferred to a calmer and quieter atmosphere. Justice would be done in such a way. To contend that no extra ordinary atmosphere exist in Punjab would be to contend for an unreality. The suit is also unusual and sensitive and the time is critical. Therefore, the Supreme Court should act by transfering the case outside the State of Punjab to meet the ends of justice. That is an absolute imperative in this case. [476D F] G.X. Francis & ors. vs Banke Bihari Singh & Anr., AIR 1958 SC 309; Hazara Singh Gill vs The State of Punjab, [1964] (4) SCR l; and State of Assam vs Atul Vohra, Transfer Petition No. 21/80 referred to. (The Court directed the case to be transferred to Delhi High Court to be tried by a learned Single Judge on the original side.) [477D] </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 1866 68 of l988. PG NO 861 From the Judgment and Order dated 25.7.1986 of the Allahabad High Court in C.M.W.P. Nos. 149, l5l and 172 of 1976. R.C. Misra, B.B. Singh for the Appellant. R.K. Jain, R.K. Khanna and R.P. Singh for the Respondents. The Judgment of the Court was delivered by OZA, J. These appeals have been filed by the U.P. Bhooden Yagna Samiti, Kanpur against the judgment of the High Court of Allahabad delivered in Misc. Writ Petition No. 149/76, 151/76 and 172/76. By the impugned order the High Court quashed the Order passed By Additional Collector, Kanpur dated 1.1.76 quashing the Pattas granted in favour of the respondent. In the month of April and May, 1968 the Petitioner before the High Court i.e. present respondent obtained grant under Sec. l4 of the U.P. Bhoodan Yagna Act in respect of various plots of land situated in Village Jahangirabad Paragana Ghatampur, District Kanpur from Bhoodan Yagna Samiti on 17.5.1972. Tehsildar Ghatampur submitted a report to Collector. kanpur and on the basis thereof the Additional Collector, Kanpur issued notices to these respondents under Sections of the U.P. Bhoodan Yagna Act requiring them to how as to why the settlement obtained by them be not cancelled On following grounds: (i) As the petitioners did not reside in the village where the plots were situated they had obtained the grant fraudulently and by misrepresenting facts. (ii) As the petitioners did not fall in the category of land less persons it was not proper to make the grant in their favour. (iii) The grants had not been approved by the Government of U.P." After considering the objections filed by the respondents. the Additional Collector came to the conclusion that the Order of the Bhoodan Yagna Samiti settling the land could not be justified as it could only be made in favour of poor landless agricultural labourers and not in favour of persons like the respondents who were quite well off and who reside in the city of Kanpur, owned propery there and carried on business. In his opinion such persons did not PG NO 862 fall in the category of landless persons as contemplated under the Act and the grants made in their favour in the year 1968 were irregular and liable to be set aside and on the basis of these reasons the Additional Collector by his order dated 1.1.76 quashed all the grants made in favour of the three respondents against which the writ petitions were filed before the High Court of Allahabad and by the impugned judgment, the Division Bench of the High Court quashed the order passed by the Additional Collector and maintained the grants in favour of the respondents and against this order of the High Court by grant of leave the present appeals are before us. Before the High Court two questions were raised. First was about the jurisdiction of the Additional Collector as under the Act the duties were cast on the Collector to enquire into these matters and therefore on that ground it was contended before the High Court that Additional Collector has no jurisdiction. The other ground which was raised before the High Court was that the view taken by the Additional Collector is not in accordance with law. So far as the first ground is concerned, even the High Court held against the respondents and before us learned counsel for parties conceded that to that part of the High Court Judgment there is no challenge and this now is not in dispute that the Additional Collector has jurisdiction to enquire into the matter and therefore on that ground it is not necessary for us to dilate any more. We are therefore mainly concerned with as to whether the settlement made by the Bhoodan Yagna Samiti in favour of the respondent was in accordance with law or which was not in accordance with law and therefore Additional Collector was right in setting aside those allotments. As regards the second question, the facts in this case are not in dispute. The respondents are businessmen residing in Kanpur. It is not in dispute that they have their trade in Kanpur and have properties also and are income tax payers. It is also not in dispute that they are not agriculturists and they had at the time of allotment nothing to do with agriculture. Apart from it their source of livelihood was not agriculture at all but trade and business. It is also not in dispute that they did not fall into any of the categories of persons depending on agriculture who did not have land in their name. On this ground, it was contended before the Additional Collector that in fact the allotment was obtained by the respondents PG NO 863 by misrepresenting that they are landless persons and on the basis of this the allotments were made which could not be justified. Before the High Court it was contended that Sec. 14 of the U.P. Bhoodan Yagna Act which provides for allotment of land only talks of landless persons. 14 as it stood in the year 1968 enabled the Samiti to settle the land vested in it with landless persons. Section neither specifies that such landless persons should also be agricultural labourers nor it provided that they have to be residents of a place in which the concerned lands were located. It was also not provided that the persons must be such whose source of livelihood is agriculture. The High Court on the basis of its earlier decision felt that Section 14 as it stood in 1968 did not provide any one of these qualifying clauses and therefore the respondents who admittedly had no land in that village and the district, they were covered by the definition of landless persons, in spite of the fact that they may be traders and paying income tax, may have properties in the City of Kanpur, still the learned Judges of the High Court felt that they fell within the ambit of the definition of landless persons as it stood in 1968 and therefore settlement made in their favour was justified. High Court relied on Sec. 14 as it stood in 1968. It reads: "Grant of land to landless persons The Committee or such other authority or person as the Committee may, with the approval of the State Government specify either generally or in respect of any area, may in the manner prescribed, grant lands which have vested in it to the landless persons, and the grantee of the land shall (i) where the land is situate in any estate which has vested in the State Government under and in accordance with Section 4 of the U.P. Zamindari Land Abolition and Reforms Act, 1950, enquire in such land the rights and the liabilities of a sirdar, and (ii) where it is situate in any other area, acquire therein such rights and liabilities and subject to such conditions, restrictions and limitations as may be prescribed and the same shall have effect, any law to the contrary notwith standing. It is not disputed that these allotments were made in accordance with Sec. 14 but had not been approved by the Government and it was even before that the Additional PG NO 864 Collector took notice of the complaint and issued notice to the respondents and on the basis of his enquiry he cancelled the allotments made in their favour by the Order in 1976 which has been quashed by the High Court. It was contended by learned counsel appearing for the petitioner (Bhoodan Yagna Samiti) that although Sec. 14 quoted above does not clearly indicate what the law meant by landless persons but in view of the scheme of Bhooden Yagna the movement which Acharya Vinoba Bhave and later Jaya Prakash Narain carried out and the purpose of the movement clearly indicated that when in Sec. 14 allotment was contemplated in favour of landless persons it only meant those landless persons whose main source of livelihood was agriculture and who were agriculturists residing in the village where the land is situated and who has no land in their name at that time. It never meant that all those rich persons who are residing in the cities and have properties in their possession but who are technically landless persons as they did not have any agricultural land in their name in the tehsil or the village where the land was situated or acquired by the Bhoodan Samiti that it could be allotted in their favour. This was not the purpose or the philosophy of Bhoodan Yagna and therefore it was contended that such a view which has been taken by the learned Judges of the High Court is contrary to law and the interpretation put by the High Court on the language of Sec 14 could not be justified. It was contended that landless person has to be interpreted in the background of the law which was enacted and the movement and the philosophy behind the movement which was the basis of the enactment of this law and it is only in that background that these words landless persons could be properly interpreted. It was also contended that if there was any doubt left. 15 makes the things still clearer. 15 reads: Grants to be made in accordance with Bhoodan Yagna Scheme All grants shall be made as far as may be in accordance with scheme of the Bhoodan Yagna. 15 provides that all grants shall be made so far as may be in accordance with the scheme of the Bhoodan Yagna, and it could not be disputed that Bhoodan Yagna scheme only contemplated allotment of lands in favour of those landless agricultural labourers who were residing in the villages concerned and whose source of livlihood was agriculture and who were landless and in that context only the landless person could be understood as contemplated PG NO 865 under Sec. It appears that in 1975 by an amendment in place of landless persons in Sec. 14 landless agricultural labourers was substituted and the objects and reasons when this Amendment Bill was moved, clearly go to show that it was because of such errors committed that it became necessary to make this amendment. The Objects and Reasons of the Uttar Pradesh Bhoodan Yagna (Amendment) Act, 1975 reads: Prefatory Note Statement of Objects and Reasons The Uttar Pradesh Bhoodan Yagna Act, 1952 provides for distribution of Bhoodan land to the landless persons by the Uttar Pradesh Bhoodan Samiti. It has come to the notice of Government that in certain cases persons other than land less persons have also received by fraud the land donated under the said Act. It has also come to the notice of Government that in many cases, for various reasons, the land vested in the Committee is not actually distributed. It has, therefore, been considered necessary to empower the Collector to cancel the grants received by misrepresentation or fraud, and further, where the committee does not grant the land within a period of three years to authorise him to distribute the land according to the provisions of the Act. By this Amendment Act in Sec. 14 in place of landless person landless agricultural labourers was substituted, and this clearly shows that it became necessary only because such errors were committed in under standing the meaning of words landless persons . The rule of interpretation which had been generally accepted in later part of 19th century and the first half of 20th century was that the word should be given its plain ordinary dictionary meaning and it is clear that learned Judges of the High Court in the impugned judgment interpreted the words landless persons on that basis and in so doing they followed their earlier judgment. But if the scheme of Bhoodan Yagna which has to be looked into because of Sec. l5 has been looked into or the purpose of the movement of Bhoodan Yagna which was started by late Acharya Vinoba Bhave and followed by Shri Jaya Prakash Narain was understood, this interpretation would not have been possible. In India we have yet another problem. The movement and the problems which are debated at all levels is not in the language in which ultimately the law to meet those PG NO 866 situations was enacted. The Bhoodan Yagna movement used generally a term Bhoomihin Kissan and it is this term which gained momentum and virtually was understood to mean those agricultural labourers whose main source of livlihood is agriculture but Who have no lands of their own or who have no lands (agricultural) recorded in their names in the revenue record and it is this problem of Bhoomihin Kissan that this movement went on to to settle and this Act was enacted to remedy that problem but our draftsman while drafting the law borrowed the phrase landless person in place of Bhoomihin Kissan and this unfortunately led to the present interpretation put by the High Court in the impugned judgment as the High Court followed the rule of interpretation which in my opinion has become obsolete. At the time when Acharya Vinoba Bhave started his movement of Bhoodan Yagna our rural society had a peculiar diversity. There were some who owned or had leasehold rights in vast tracks of agricultural lands whereas on the other hand there were those who were working on agriculture as labourers in the fields and depending on what little they got from their masters. Sometimes they were even bound down to their masters and therefore had to lead miserable life. It was this problem in rural India which attracted the attention of Acharya Vinoba Bhave followed by Shri Jaya Prakash Narain and they secured large donations of land from big land holders and the scheme of the Bhoodan Yagna movement was to distribute this land to those Bhoomihin Kissan who were living on agriculture but had no land of their own and it was to make this effective and statutory that this law was enacted and in this context it is clear that if one had noticed even the slogan of the Acharya Vinoba Bhave s movement or its basis and the purpose it would have clearly indicated the problem which was to be remedied by this enactment and if this was looked into for the purpose of interpretation of the term landless persons no Court could have come to the conclusion which has been arrived at in the impugned judgment. In this country we have a heritage of rich literature, it is interesting to note that literature of interpretation also is very well known. The principles of interpretation have been enunciated in various Shlokas which have been known for hundreds of years. One such Shlok (Verse) which describes these principles with great precision is: "UPKRAMOP SANHARO ABHYASO UPPURWATA PG NO 867 FALAM ARTHWADOPPATTI CH LINGAM TATPARYA NIRNAYE" This in short means that when you have to draw the conclusion from a writing you have to read it from beginning till end. As without doing it, it is difficult to understand the purpose, if there is any repetition or emphasis its meaning must be understood. If there is any curiosity or a curious problem tackled it should be noticed and the result thereof must be understood. If there is any new innovation (Uppurwatta) or something new it should be taken note of. Then one must notice the result of such innovation. Then it is necessary to find what the author intends to convey and in what context. This principle of interpretation was not enunciated only for interpretation of law but it was enunciated for interpretating any piece of literature and it meant that when you have to give meaning to anything in writing then you must understand the real meaning. You can only understand the real meaning by understanding the reference, context, the circumstances in which it was stated and the problems or the situations which were intended to be met by what was said and it is only when you take into consideration all this background, circumstances and the problems which have to be tackled that you could really understand the real meaning of the words. This exactly is the principle which deserves to be considered. When we are dealing with the phrase landless persons these words are from English language and therefore I am reminded of what Lord Denning said about it. Lord Denning in The Discipline of Law at Page No. 12 observed as under: Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were PG NO 868 drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament. And it is clear that when one has to look to the intention of the Legislature, one has to look to the circumstances under which the law was enacted. The Preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at Page No. 10, observed as under: At one time the Judges used to limit themselves to the bare reading of the Statute itself to go simply by the words, giving them their grammatical meaning and that was all. That view was prevalent in the l9th century and still has some supporters today. But it is wrong in principle. The Statute as it appears to those who have to obey it and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the eccentrics cut off from all that is happening around them. The Statute comes to them as men of affairs who have their own feeling for the meaning of the words and know the reason why the Act was passed just as if it had been fully set out in a preamble. So it has been held very rightly that you can enquire into the mischief which gave rise to the Statute to see what was the evil which it was sought to remedy. " It is now well settled that in order to interpret a law one must under stand the background and the purpose for which the law was enacted. And in this context as indicated earlier if one has bothered to under stand the common phrase used in the Bhoodan Movement as Bhoomihin Kissan which has been translated into English to mean landless persons there would have been no difficulty but apart from it even as contended by learned counsel that it was clearly indicated by Sec. 15 that the allotments could only be made in accordance with the scheme of Bhoodan Yagna. In order to understand the scheme of Bhoodan and the movement of Shri Vinoba Bhave, it would be worthwhile to quote from Vinoba And His Mission by Suresh Ram printed with an introduction by Shri Jaya Prakash Narain and foreword by Dr. section RadhaKrishnan. In this work, statement of annual Sarvodya Conference at Sevapuri has been quoted as under: PG NO 869 The fundamental principle of the Bhoodan Yagna movement is that all children of the soil have an equal right over the Mother Earth, in the same way as those born of a mother have over her. It is, therefore, essential that the entire land of the country should be equitably redistributed anew, providing roughly at least five acres of dry land or one acre of wet land to every family. The Sarvodaya Samaj, by appealing to the good sense of the people, should prepare their minds for this equitable distribution and acquire within the next two years at least 25 lakhs of acres of land from about five lakhs of our villages on the rough basis of five acres per village. This land will be distributed to those landless labourers who are versed in agriculture, want to take to it, and have no other means of subsistence. " (Underlining for emphasis by us) This would clearly indicate the purpose of the scheme of Bhoodan Yagna and it is clear that Sec. 15 provided that all allotments in accordance with Sec. 14 could only be done under the scheme of the Bhoodan Yagna. In the light of the discussion above therefore, the judgment of the High Court could not be maintained. The appeals are therefore allowed. The judgment of the High Court is set aside and the orders passed by the Additional Collector are restored. Appellant shall be entiled to costs of the appeals, counsel fee Rs. l,500 in each of these three appeals. G.N. Appeals allowed. [/INST]The Government of India set up a Wage Board for the port and dock workers at major ports on November 13, 1964(1) to determine the categories of employees who should be brought within the scope of proposed wage fixation, and (2) to work out a wage structure for those employees on the basis of the guidelines laid down by the Government. The Wage Board submitted its final report on November 29, 1969. The Wage Board did not choose to make any recommendation in respect of bargemen, i.e., Dandees and Majhis at the Port of Calcutta. According to the Wage Board, the bargemen were engaged more in the transport of cargo rather than its handling and they therefore did not fit in with the definition of 'dock worker '. Thereupon, the bargemen raised an industrial dispute claiming the benefit of the Wage Board recommendations. Accordingly, the Central Government on August 22, 197o constituted a National Tribunal at Calcutta for adjudication whether the recommendations of the Wage Board were applicable. to the bargemen, and if not, to what relief with regard to wages and allowances were they entitled. The National Tribunal held that the bargemen were entitled to be paid wages and allowance at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of the definition of 'dock worker ' and thus the recommendations of the Wage Board were applicable to them, and alternatively, on the ground that PG NO 1034 PG NO 1035 they were entitled to the same rates of wages and allowances even independently~ having regard to the financial capacity of the management and all other relevant considerations governing the determination of the wages. Aggrieved by the award of the National Tribunal, the managements filed two writ petitions before the High Court at Calcutta questioning its validity on the ground that it was beyond the scope of the reference. The learned Single Judge observed: (1) that the scope of the reference was to find out from the report of the Central Wage Board itself whether the recommendations were applicable to the bargemen or not, and it was not for the National Tribunal to criticise the report of the Central Wage Board and to establish that the bargemen were dock workers within the meaning of the Act; (2) the National Tribunal, in a round about way, made the recommendations of the Central Wage Board applicable to the bargemen although apparently the recommendations were not applicable to them, and (3) the National Tribunal having held that the recommendations of the Central Wage Board were applicable to the bargemen, there was no scope for it to decide independently the pay structure of the bargemen. The learned Single Judge accordingly quashed the award as beyond the jurisdiction of the National Tribunal. The Division Bench, on appeal, agreed with the Single Judge and further held that the National Tribunal had failed to fix the wages in accordance with the settled principles. Allowing the appeal, it was, HELD: (l) The object of enacting the and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication In all such cases an attempt should be made by Courts exercising power of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper technical grounds.[1042B C] PG NO 1036 (2) In order to decide the question whether the bargemen were dock workers or not the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question, and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the Award could, therefore, be considered to be outside the scope of the reference made to the National Tribunal. The finding recorded by the National Tribunal may be right or wrong but it could not be considered as one recorded without jurisdiction. [1048B D] (3) The National Tribunal while holding that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board had observed that it would not be beyond the capacity of the employers to pay. The criticism of the award in this regard by the High Court was wholly unjustified. [1048E F; 1049A] (4) The wages and allowances fixed by the National Tribunal were just and not at all excessive. [1049E] Express Newspapers (Private) Ltd. and Anr. vs The Union of India and Others, referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 1212 of 1974. From the Judgment and Order dated 26 4 74 of the Madhya Pradesh High Court in Election Petition No. 4/72. 526 Hardayal Hardy and S.K. Gambhir, for the Appellant. D.V. Patel, B. Jindal, M.M.L. Srivastava and E.C. Agarwa la, for the respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal under section 116 A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the judgment and order dated April 26, 1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appel lant to the Madhya Pradesh Legislative Assembly from Kha chrod Assembly Constituency No. 247 at the general elections of 1972 has been set aside under section 100(1)(b) of the Act on the election petition filed by Vimal Kumar Choudhury, respondent herein, who Was an elector in the said constituency. Pursuant to the notifications issued under section 30 of the Act calling upon the aforesaid constituency to elect a member to the M.P. Legislative Assembly, nomination papers by the appellant and some others were filed on February 8, 1972. On scrutiny of the nomination papers held by the Returning Officer on February 9, 1972, nomination of 8 candidates was found valid. Out of the said 8 candidates, 3 withdrew their candidature with the result that only five candidates including the appellant who was set up by Bhar tiya Jan Sangh and Rajendra Jain (p.W. 39) who was set up by the Indian National Congress contested the election. The poll took place on March 8, 1972. On March 12, 1972, the appellant was declared elected as a result of counting of the polled votes which showed that he had secured 23,572 votes as against 22,327 secured by Rajendra Jain (P.W. 39), his nearest rival. On April 24, 1972, the respondent herein presented an election petition challenging the elec tion of the appellant alleging commission by the latter of various acts of corrupt practices. The particulars of cor rupt practices alleged to have been committed by the appel lant were set out by the respondent in Paragraphs 13, 14 and 15 of his election petition. In paragraph 13 of the elec tion petition, it was inter alia stated as under : "(13). That the respondent has committed the corrupt practice of publication of false statement of fact in relation to the personal character and/or conduct of Shri Rajendra Jain (hereinafter referred to as the 'Congress Candidate ') falling in the purview of section 123(4) of the Act as per the facts and particulars mentioned hereinafter. Leaflet (13)(xi). That the Congress candidate is the follower of the Jainism wherein the eating of cow meat is absolutely prohibited. Shri Rajendra Kumar Jain does not eat meat at all. Amongst Hindus who form a majority of the voters in the Constituency, cow is regarded as a sacred animal and worshipped like God. Persons who eat cow meat are looked with hatred by the Hindus and are discarded from the society. 527 (13) (xii).That the respondent/Election Agent got printed and distributed a leaflet enti tled: "Beware, understand the Congress Candidate." (Leaflet is attached hereto and marked as Annexure 'A '). (13)(xiii). That the leaflet Annexure 'A ' contains the following statement of facts which are false, which the respondent either believed to be false or did not believe to be true in relation to the personal character and for conduct of the Congress Candidate, being the statement reasonably calculated to prejudice the prospects of Congress candidate 's election: " . What to speak of other things, Rajendra Jain went on tour to those countries where beef is prepared and served in Hotels and there he took beef even. Do you want to cast your vote in favour of a person who is atheist who is a beef eater and is devoid of Dharma . " (13) (xiv) . That the pararticulars re garding the date, place, time and name regarding the distributors of Annexure 'A ' are given herein below : Sr. Date Place Name of Time Distribution (a) 5.3. 72 Khachrod (Shukar Rampartap s/o About variya Chouk)in Ramsukh 3.00 P.M. the meeting of Jan Khachrod Sangh at which the respondent and his election age nt Shri Amrudda Heda were also present. (b) 6. 3.72 Ramsingh 9.00 A.M. to R/o Ganesh 11.00 A.M. Chowk, Birlagram, Nadga. The election petition was vigorously contested by the appellant. In the course of the written statement filed by him, the appellant denied to have any concern with or knowledge of the aforesaid leaflet and averted that during the election time, he never saw any such leaflet; that it was only in the course of the election petition that he came to know of the leaflet and that he had no knowledge of the truth or falsity of the contents thereof. The appellant further averred that it was only after the defeat of Rajen dra Jain that the story of the leaflet was manouvred and manufactured for the purpose of the election petition. The appellant further averred that he did not do anything to prejudice the prospects of the election of Rajendra Jain. On the pleadings of the parties, the learned Judge (to whom the election petition was .assigned for trial and disposal by the Chief Justice of the High Court) framed a number of issues but it is only with the following issues with which we are concerned in this appeal: 528 "4) (a). Whether the leaflet Annexure 'A ' was published by or with the consent of the respondent by the persons and on the dates mentioned in para (13)(xiv) of the petition ? (b) If so, whether the said leaflet contained false statements in relation to the personal char acter and conduct of the congress candidate Rajen dra Jain which the respondent did not believe to be true or believed to be false ?" On consideration of the evidence adduced by the parties during the course of the regular trial of the petition, the learned trial Judge allowed the election petition and set aside the election of the appellant under section 100(1)(b) of the Act. The findings arrived at by the learned Judge in so far as they are relevant for the purpose of this appeal are as follows : "Though the findings on most of ,the issues are against the petitioner yet it has been found that the pamphlet exhibit P 10 which was a false state ment with regard to the personal conduct and char acter of the candidate Rajendra Jain was got print ed by the respondent at the printing press of P.W.34 Ramprasad. The defence raised by the re spondent with regard to this pamphlet has been found to be not established. It has been held that it was the respondent who himself by letter exhibit P 20 got this pamphlet printed in the printing press of P.W. 34. Ramprasad. The evidence given by the petitioner about its distribution by Ram Singh (P.W. 21) and Rampratap Dhakad (not examined) with the consent of the respondent has been disbelieved. However, it has been found as a fact that it was the respondent himself who got 2000 copies of this pamphlet printed and published. This is, therefore, a clear case where the respondent is guilty of getting this pamphlet printed and published against the congress party candidate Rajendra Jain. The respondent is, in the light of the aforesaid finding clearly guilty of committing the corrupt practice as mentioned in sub section (4) of section 123 of the Representation of the People Act. When such a pamphlet is published by the returned candi date the only inference that can be drawn is that the publication was reasonably calculated to prejudice the prospects of the election of the other contesting candidate Rajendra Jain; Conse quently under section 100(1)(b) the election of the respondent is liabIe to be declared void and set aside. " The trial Judge, however, left the parties to pay and bear their own costs of the petition. It is against this judgment and order that the present appeal has been pre ferred. Mr. Hardy, who has taken great pains to present the case of the. appellant has, in the first instance, attempted to lead us to the realm of hyper technicalities. He has tried to pick up faults in the verifica 529 tion on the election petition and the affidavit accompanying the petition and has urged that the petition ought to have been dismissed by the High Court in limine under section 86 of the Act in view of the fact that the verification and the affidavit ,did not contain sufficient particulars of the corrupt practices attributed to the appellant and did not at all give particulars ,of printing of the offending leaflet. He has further urged that the petition was also liable to be dismissed as the copy of the petition meant to be served on the appellant was not accom panied by a copy of annexure 'A ' i.e. Exh. We find ourselves unable to accede to these contentions. The alle gations of corrupt practice and particulars thereof as given in paragraph 13 of the election petition reproduced above are sufficiently clear and precise. The affidavit accompanying the petition in support of the allegations of corrupt practice and the particulars thereof also conform to the form prescribed for the purpose. The appellant had an easy access to the court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leaflet (Exh. P 10) which formed an annexure to the election petition. It is also now well settled that failure to give pariculars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition. (See Prabhu Narayan vs A. K. Srivastava) (1). That apart, the petition could also not have been dismissed in view of section 99 of the Code of Civil procedure which clearly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision. The preliminary con tentions of Mr. Hardy cannot, therefore, be sustained. Continuing his arguments, Mr. Hardy, while fairly. and rightly conceding that the contents of the aforesaid leaflet (Exh. P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such fall within the mischief of section 123(4) of the Act, has vehemently assailed the aforesaid findings of the trial Judge with regard to the printing and publication of the leaflet (Exh. P 10) by the appellant. He has contended that the evidence adduced in the case does not at all establish that it was the appellant or his election agent or any one of his sup porters who got the offending leaflet (Exh. P 10) printed or published or that the leaflet was distributed to the members of the public of Khachrod Constituency with the consent of the appellant or his election agent to prejudice the election prospects of Rajendra Jain (P.W.39). In view of the concession made by Mr. Hardy that the contents of the aforesaid leaflet (Exh. P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such would fail within the mischief of section 123(4) of the Act, the only point that survives for decision in this appeal is whether the High Court was right in setting aside the election of the appellant on the ground of 'publication ' by him or with his consent: of the leaflet which according to the respondent contained false statement of facts as to the personal character and conduct of Rajendra Jain (P.W. 39) and was reasonably calculated to prejudice the prospects of the latter 's election to the State Legislative Assembly in the general elections of 1972. (1)[1975] 3 S.C.C. 788. 530 The first and foremost question which is required to be determined in this connection is whether it was the appel lant who got the offending leaflet printed. It is necessary to go into the question of printing of the leaflet (Exh. P 10) as the finding in respect thereof is bound to have as held by this Court in Prabhu Narayan 's case (supra), an important bearing on the question of its distribution either by the appellant or with his consent and a discussion of the evidence regarding printing provides a satisfactory method of assuring oneself as to whether the distribution was made, as alleged, by the appellant or with his consent. Now the proof regarding printing of the leaflet (Exh. P 10) consists of the evidence of Ramprasad (P.W.24) who is the Manager of Kamla Printing Press, Ujjain, which is owned by his wife. Mr. Hardy has stressed that the statement of Ramprasad is untrustworthy; that his conduct does not inspire confidence and that his statement being that of an accomplice cannot be relied upon without independent corrob oration. Though Mr. Hardy his levelled trenchant criticism against the evidence of Ramprasad (P.W. 24,), we are not inclined to agree with him. There is nothing strange about the conduct or behaviour of Ramprasad which may impel us to discard his testimony. Despite the searching cross examina tion to which he was subjected, his credit has remained unshaken. The mere fact that he printed the offending leaflet cannot clothe him with the character of a guilty associate or partner in the crime of corrupt practice within the meaning of ,section 123 (4) of the Act, which consists in the publication by the candidate or his agent or by any other person with the consent of the candidate or. his election agent, of any statement of fact which is false or which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate which is reasonably calculated to prejudice the prospects of that candidate 's election. In the instant case, Ramprasad (P.W. 24) was neither the election agent of the appellant nor is there any allegation that he published the offending leaflet. Section 127 A of the Act on which Mr. Hardy has placed strong reliance in support of his contention that Ramprasad (P.W. 24) was in the position of an accomplice has no relevance. It has nothing to do with the offence in question. The ommission on the part of Ramprasad to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by sub section (2) of section 127 A of the Act may lay him open to prosecution for an offence under sub section (4 ) of section 127 A of the Act but would not make him an accomplice or render his statement untrustworthy. Ramprasad (P.W. 24) has affirmed that on February 22, 1972, Rajaram from Khachrod .came to him and made inquiries from him regarding the printing charges of a leaflet, and that he turned up again on the following day with letter (Exh. P 20) from the appellant and told him that he had been sent by him. The witness has further deposed that Rajaram departed after handing over to him the letter (Exh. P 20), the draft or manuscript of the leaflet (Exh. P 21) which had to be printed and the printing charges amounting to Rs. 45/ . He has further stated that the charges were acknowledged by him the same day by means of a receipt of the even date; that on February 24, 531 1972, when he had completed the composition of draft of the leaflet, Anirudh Hada (R.W. 1), an advocate of Ujjain, came to him and after telling him that he was the representative and worker of the appellant, went through the printed proof (Exh. P .23) of the leaflet (Exh. P 10) and advised him that the name of Rajaram Parmar appearing at one place on the first sheet and at two places on the second sheet in the proof should be removed and replaced by the words 'a citizen of Khachrod '. The witness has further stated that 2,000 copies of the leaflet were printed by him on February 25, 1972 and handed over to Rajaram. The state ment of Ramprasad (P.W. 24) receives strong corroboration not only from the various documents viz. the draft (manu script) (Exh. P 21), carbon copy of receipt (Exh. P 22), proof (Exh. P 23) of the offending leaflet, carbon copy of the bill (Exh. P 24), entry (Exh. P 25) in his cash book dated February 24, 1972 regarding the payment of the print ing charges of Rs. 45/ and entry (Exh. P 26) in his Order Book Register in respect of the leaflet produced by him but also from the letter (Exh. P 20) which admittedly bears the signatures of the appellant and contents whereof are in the handwriting of his brother, Surendra Singh. The letter runs as follows : " 23.2.72 Shri Ramprasadji, KamaIa Press, Ujjain. Please print 2000 pamphlets of the matter which I have sent through Rajaram. I need this pamphlet early. Hence print it within a day or two. I am sending Rs. 45/ with Rajaram, which please accept. The proof will be seen by Hadaji, who will come to you. Sd/ Kunwar Virendra singh, Member, Legislative Assembly, M.P. Constituency Khachrod, District Ujjain. " The above letter, it would be seen, contains intrinsic evidence which goes a long way to support the testimony of Ramprasad (P.W. 24). It clearly establishes (i) its own despatch to the witness by the appellant through Rajaram; (ii) the despatch to the witness by the appellant through Rajaram of the draft or manuscript of the matter to be printed, (iii) the placing of the order by the appellant for printing of 2,000 copies of the manuscript (Exh. P. 2.1) in the form of leaflets; (iv) the remittance by the appellant through Rajaram of Rs. 45/ to defray the printing charges; and (v) the advice by the appellant to the witness that the proof would be seen by Mr. Anirudh Hada. Although Mr. Hardy has tried hard to persuade us to hold that the letter could not have been written by or at the instance of the appellant, we are not inclined to agree with him. There is nothing unusual in the contents of the letter being in the hand of 532 Surendra Singh in view of the statement of Chander Singh (R.W. 25) (corroborated as it is by the clear admission of the appellant himself that the relations between the two brothers i.e. Surendra Singh and the appellant remained cordial from the time of the wedding of the appellant 's daughter which took place in August, 1967 to nearly four months after the general elections of 1972. and that in the said general elections, Surendra Singh worked with the appellant and also accompanied him sometimes. That Ramprasad 's (P.W. 24 's) statement possesses a ring of truth and he was not trumped up by any of the arch ene mies of the appellant including Surendra Singh and Rajendra Jain (P.W. 39) as Mr. Hardy would have us believe is mani fest from another telling circumstance viz. the significant omission on the Part of the appellant to contradict Rampra sad (P.W. 24) by examining Rajaram who was no other than his own polling agent as is evident from Exhibit P 30 which admittedly bears the signatures of the appellant. It can, therefore, be safely presumed that Rajaram was not prepared to support the appellant by refuting the statement of Ram prasad (P.W.24). The assertion of the appellant that he deputed his brother, Surendra Singh alongwith Chander Singh (R.W. 25) to go to Ranasan in the State of Gujarat to bring his jeep from his relative, Thakur Harish Chander Singh, who was not returning, the same despite several demands made from him through letters and telegrams; that while so deputing his brother he handed over to him six blank official letter heads which were used by him as a Member of the State Legis lative Assembly after putting his signatures and affixing the rubber stamp of his designation thereon so that they might be utilized for making reports/complaints to the Police or other officials of the Transport Department in case his relative refused to return his jeep and that Surendra Singh misused one of the aforesaid letter heads and fabricated Exh. P 20 as his relations with him became strained over the demand for division of the landed property which was got mutated by his father during his lifetime in the name of Surendra Singh 's son is nothing but a tissue of lies woven to escape the grave consequences of addressing the letter (Exh. P 20) to Ramprasad (P.W. 24). The contents of the letter (Exh. P 26) being, therefore, in the hand of Surendra Singh is not a circumstance which can rea sonably arouse suspicion regarding its genuineness. On the contrary, it is consistent with the normal course of human conduct. It may well be that the appellant being otherwise busy, dictated the contents of the letter (Exh. P 20) to his brother,Surendra Singh and thereafter put his own signature thereon. It cannot also be overlooked that the appellant has been shifting his stand from time to time with regard to the aforesaid blank sheets to suit his own convenience. Whereas at one place in the complaint (Exh. P 33) filed by him on July 31,1973, in the Court of Magistrate 1st Class, Khahrod, he averted that he delivered those forms 533 to Chand Singh Raghubanshiand Berulal, Driver, at another place in the same complaint, he made a veiled averment to the effect that the letter heads were handed over by him to his brother, Surendra Singh. The plea taken by the appellant that he gave six blank letter heads with his signatures thereon to his brother, Surendra Singh, is also falsified by the .First Information Report (Exh. R 79) made by him to the station House Officer, Police Station, Chhatripura, Indore, on September 26, 1973 wherein he appears to have stated that Surendra Singh sold his Fiat car No. MPO. 1241 by forging his signatures on a document. If the appellant had in fact handed over. six blank letter heads with his signatures thereon to Surendra Singh, as asserted by him, the latter could have easily used one of those letter heads. It is also worthy of note that whereas at the foot of the complaint (Exh. P 33), the appellant cited Chand Singh, s/o Saman Singh Raghubanshi, resident of Mosi Gate, Khachrod as his witness, in the instant election petition he has produced Chander Singh, s/o Chandrabhansingh of Khachrod as his witness in proof of the handing over of the afore said six letter heads bearing his signatures to Surendra Singh. It is also difficult to believe that the appellant would hand, over half a dozen blank letter heads bearing his signatures to his brother, Surendra Singh specially when his wife, according to his own admission in the report (Exh. R 84) dated July 26, 1973 accompanied his brother to Ranasan. All these circumstances furnish a proof positive of the falsity of the statement of the appellant in regard to the circumstances in which letter (Exh. P.20) came into existence. The foregoing discussion leaves no room for doubt that it was the appellant who got the offending leaflet printed at the Kamla Printing Press, Ujjain. This takes us to the crucial question of the distribu tion of the offending leaflet by the appellant or his election agent or by some other person with the consent either of the appellant or his election agent. Though the appellant and his election agent, Anirudh Hada, advocate (R.W. 1) have asserted that they had no connection with the distribution of the leaflet and the learned counsel for the appellant has also sought to make capital out of the High Court 's observation at one place that the distribution of the, leaflet was not by the appel lant or with his consent and at another place that the appellant himself was responsible for the publication of the leaflet (which according to the decision of this Court in Prabhu Narayan 's case (supra) means distribution of the printed material). We shall show by reference to the unim peachable direct and circumstantial evidence which the High Court has failed to consider in its proper perspective that the only conclusion which could reasonably have been arrived at was that the distribution of the leaflet (which has not been disbelieved by the High Court to have been made) was by and with the consent of the appellant or his election agent. 534 As already stated the respondent had alleged in the election petition that the leaflet was distributed on two different dates and at two different places in his constit uency (1) on March 5, 1972 at Shukravariya Bazar, Khachrod at the meeting of Jan Sangh at which the appellant and his election agent, Anirudh Hada, Advocate were seated on the dais and (ii) on March 6, 1972 at Nagda. The distribution of the leaflet on March 5, 1972 is alleged to have been made by Rampratap and on March 6, 1972 by Ram Singh (P.W. 21). We propose to discuss the evidence with regard to these two distributions separately. That a public meeting was organised and held on the afternoon of March 5, 1972 by the Jan Sangh Party in Shukravariya Bazar, Khachrod, at which the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada, advocate (R.W. 1 ) were seated on the dais and which was addressed by the Rajmata of Gwalior admits of no doubt as the same is admitted by both the appellant and his election agent, Anirudh Hada, (R. W. 1) as also by the appellant 's witness, Ramdas (R.W. 24). It is only the distribution of the leaflet (Exh. P 10) at this meeting which is denied by them. The denial cannot, however, be sustained in view of clear and convincing evidence of Badri lal (P.W. 15), Nanalal (P.W. 27) Khursheed Ahmed (P.W. 35) and Shaitanmal Sisodia (P.W. 38). All these witnesses have categorically stated that at the aforesaid meeting at which besides others the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada (R.W. 1) were seated on the dais, they saw leaflet (Exh. P 10) which appeared to have been issued in the name of a Nagrik of Khachrod being distributed to the persons who had assembled to attend the meeting by Rampratap Dhaked of Khachrod. The witnesses have further stated that in the aforesaid leaflet (Exh. p 10) it was inter alta written that Rajendra Jain "while touring abroad had taken cow meat. " If the appellant or Anirudh Hada had nothing to do with the distribution of the leaflet, there was nothing to stop them from restraining Rampratap from distributing the same or admonishing him for doing so. It is no doubt true that the respondent has not been able to produce Rampratap in proof of his allegation but it cannot be lost sight of that the former did summon the latter as his witness but he did not appear despite serv ice. the course of the statement made by him as his own witness, the respondent has explained that on Rampratap 's omission to appear before the Court as his witness despite service, he contacted the latter to enquire about the reason for his non appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30,), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daugh ter of Rampratap. It is also significant that though Ram pratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non appearance of Rampratap as a witness for the 535 respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P 10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukravariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P 10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37). Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P 10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know him. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/ were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organ isation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellant 's own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress sup ported Maheshchandra Lala who was an independent candidate. The statement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news paper hawker distributed copies of leaflet (Exh. P 10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Even if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of =circum stantial evidence to establish the distribution of the leaflet (Exh. P 10) by the 536 appellant or with his consent which cannot be easily ignored. These circumstances are (i) it was the appellant who as already observed caused the election leaflet (Exh. P 10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain; (ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distri bution of the leaflet (Exh. P 10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf . let (Exh. P 10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the elector ate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the elect iion campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P 10) emanated from a source which had no connection with the appellant or his election agent. Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election. In the result, the appeal fails and is hereby dismissed with costs. P.B.R. Appeal dismissed. [/INST]The appellant booked rice for being transported by train, from Bareilly railway station to Trivandrum railway station. On delivery, the rice was found to be damaged and short in quantity. The appellant claimed damages from the respondent, who resisted the claim on the grounds that the suit was not maintainable as the Union of India had not been impleaded as a defendant, and that a suit by a State against the Union of India could only be instituted in the Supreme Court under article 131 of the Constitution. The suit was dismissed by the Trial Court, and an appeal from it was dismissed by the High Court. Dismissing the appeal, the Court, HELD: The Southern Railway is owned by the Union of India. As such, a suit dealing with the alleged liability of that railway should have been brought against the Union of India. Section 80 of the C.P.C. contemplates institution of a suit against the Central Government even though it relates to a railway. [422 E FI] Sukhanand Shamlal vs Oudh Rohilkhand Railway AIR 1924, Born. 306; Hirachand Succaram Gandhy & Ors. G.I.P. Rail way Co., AIR 1928 Born. 421; Shaikh Elahi Bakhsh vs E.I. Railway Administration, AIR 1941 Patna 326: Chandra Mohan Saha & Ant. vs Union of India & Anr. and P.R. Narayanaswami lyer & Ors. vs Union of India AIR 1960 Madras 58, Approved. (2) Neither the definition of the "railway administra tion" in Section 3(6) of the Indian Railways Act, nor the language of sections 72 to 80 of the Act, lends support for the view that the railway administrations are to be treated as separate personalities, entries or separate juridical persons. [423 B C] Dominion of India vs Firm Musaram Kishunprasad AIR 1950 Nagpur 85. overruled. (3) The demarcation of the different State owned rail ways as distinct units for administrative and fiscal pur poses cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1763 (NT) of 1974 From the Judgment and Order dated 2.2.1973 of the Andhra Pradesh High Court in Case Reference No. 67 of 1971. Y. Ratnakar, Mrs, A.K. Verma and D.N. Misra for the Appellant. S.C. Manchanda, Ms. A. Subhashini and B.B. Ahuja for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by Special leave arises from the decision of the High Court of Andhra Pradesh and it seeks answers to two questions: 1079 "(i) Whether, on the facts and in the circumstances of the case, the properties in respect of which registered sale deeds had not been executed, but consideration had been received, belonged to the assessee for the purpose of inclusion in his net wealth within the meaning of section 2(m) of the ? (ii) Whether, on the facts and in the circumstances of the case, the assessee 's right to receive the sum of Rs.25 lakhs O.S. from the State Government was an asset for the purposes of inclusion in his net wealth under the ?" The year involved in this case is the assessment year 1957 58 under the (hereinafter called the 'Act '). It may be mentioned that the valuation date is the first valuation date after coming into operation of the Act which came into force on 1st April, 1957. The assessee was the Nizam of Hyderabad, an individual. There were several questions involved in the assessment with all of which the present appeal is not concerned. So far as the first question indicated hereinbefore which was really question No. (ii) in the statement of case before the High Court, it may be mentioned that the Wealth tax Officer had included a total sum of Rs.4,90,775 representing the market value of certain immovable properties in respect of which, although the assessee had received full consideration money, he had not executed any registered sale deeds in favour of the vendees. The Wealth tax Officer held that the assessee still owned those properties and consequently the value of the same was included in his net wealth. On appeal the Appellate Assistant Commissioner sustained the order with certain deductions in value. On further appeal the Tribunal held that the assessee had ceased to be the owner of the properties. The Tribunal was of the opinion that the assessee having received the consideration money from the purchasers and the purchasers having been put into possession were protected in terms of section 53A of the Transfer of Property Act and the term 'owner ' not only included the legal ownership but also the beneficial ownership. The first question arises in the context of that situation. The High Court following the ratio of Commissioner of Income Tax, A.P., Hyderabad vs Nawab Mir Barkat Ali Khan, (infra) answered the question in favour of the revenue. 1080 The second question set out before, which was question No. (v) before the High Court, has to be understood in the context of the facts of this case. The right of the assessee to get the amount in question i.e. Rs.25 lakhs a year, arose in the wake of accession of the Hyderabad State to the Union of India. Several communications followed between the Military Governor of Hyderabad,. Gen. Chaudhuri and the Nizam of Hyderabad as well as other officers. It has to be borne in mind that the assessee was a paramount ruler owning certain private properties called Sarf e khas. He surrendered his paramountcy and acceded to the Union of India. His private properties were taken over by the Government and it was agreed by the Government that in lieu of his income from the said properties, he would be paid Rs.25 lakhs in Osmania currency annually. The communication between Major General Chaudhuri, the Military Governor and the Nizam about this particular sum in contained in the letter dated 1st February, 1949. It stated inter alia as follows: "After this merger H.E.H. will be paid annually a total sum of Rs. 1 crore distributed as follows: (a) Rs.50 lacs as a privy purse, (b) Rs.25 lacs in lieu of his previous income from the Sarf e khas, and (c) Rs.25 lacs and for the upkeep of Palaces etc. " The letter which appears in the Paper Book of this appeal from Military Governor of Hyderabad, Major General Chaudhuri to the Nizam of Hyderabad, states, inter alia, that Nizam 's Sarf e khas estates should not continue as an entirely separate administration independent of the Diwani administrative structure. The Sarf e khas, it was stated in that letter, should therefore be completely taken over by the Diwani, its revenue and expenditure being merged with the revenues and expenditure of the State. Thereafter we have extracted the relevant portion of the letter which stipulated for the payment of Rs.25 lakhs. The other parts of the agreement contained in that letter are not relevant for the present purpose. The Wealth tax Officer treating the said sum as an annuity and secondly as an asset or property, capitalised the same to Rs.99,78,572 1081 and included that amount as an asset of the assessee. The appellate Assistant Commissioner agreed with the view taken by the Wealth tax Officer. The Tribunal, however, refused to call it as an annuity and characterised it as an annual payment for surrender of life interest. The Tribunal therefore held that the capitalised value of such life interest be added to the net wealth and taxed. The High Court in the judgment under appeal agreed with the view taken by the Tribunal that it was only an annual payment made in compensation for the property which had been taken over by the Government. It was, therefore, a part of the wealth, according to the High Court. The High Court was of the view that it was possible to commute the annual payment of Rs.25 lakhs. The High Court found that there was neither any express preclusion nor any circumstances from which legitimately an inference could be drawn precluding commutation of the said amount into a lumpsum grant. The High Court, therefore, was of the view that the Wealth tax Tribunal had rightly rejected the contention of the assessee. The question was accordingly answered by the High Court in the affirmative and against the assessee and in favour of the revenue. The first question involved in this case is whether the properties in respect of which registered sale deeds had not been executed, but full consideration had been received by the assessee, belonged to the assessee for the purposes of inclusion in his net wealth in terms of section 2(m) of the Act. Under section 3 of the Act, the charge of wealth tax is on the net wealth of the assessee on the relevant valuation date. Net wealth is defined under section 2(m) of the Act. The relevant portion of section 2(m) is as follows: "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date. ." The material expression with which we are concerned in this appeal is 'belonging to the assessee on the valuation date '. Did the assets in the circumstances mentioned hereinbefore namely, the properties in respect of which registered sale deeds had not been 1082 executed but consideration for sale of which had been received and possession in respect of which had been handed over to the purchasers belonged to the assessee for the purpose of inclusion in his net wealth? Section 53A of the Transfer of Property Act gives the party in possession in those circumstances the right to retain possession. Where a contract has been executed in terms mentioned hereinbefore and full consideration has been paid by the purchasers to the vendor and where the purchasers have been put in the possession by the vendor, the vendees have right to retain that possession and resist suit for specific performance. The purchasers can also enforce suit for specific performance for execution of formal registered deed if the vendor was unwilling to do so. But in the eye of law, the purchasers cannot and are not treated as legal owners of the property in question. It is not necessary in our opinion, for the purpose of this case to be tied down with the controversy whether in India there is any concept of legal ownership apart from equitable ownership or not or whether under sections 9 and 10 of the Indian Income tax Act, 1922 and sections 22 to 24 of the Indian Income tax Act, 1961, where 'owner ' is spoken in respect of the house properties, the legal owner is meant and not the equitable or beneficial owner. Salmond On Jurisprudence, Twelfth Edition, discusses the different ingredients of 'ownership ' from pages 246 to 264. 'Ownership ', according to Salmond, denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Firstly, Salmond says, the owner will have a right to possess the thing which he owns. He may not necessarily have possession. Secondly, the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it. Thirdly, the owner has the right to consume, destroy or alienate the thing. Fourthly, ownership has the characteristic of being indeterminate in duration. The position of an owner differes from that of a non owner in possession in that the latter 's interest is subject to be determined at some future time. Fifthly, ownership has a residuary character. Salmond also notes the distinction between legal and equitable ownership. Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity different from the common law. The courts of common law in England refused to recognize equitable ownership and denied the equitable owner as an owner at all. All the rights embedded in the concept of ownership of Salmond 1083 cannot strictly be applied either to the purchasers or the assessee in the instant case. In the instant appeal, however, we are concerned with the expression 'belonging to ' and not with the expression 'owner '. This question had come up before this Court before a bench of five learned judges in Commissioner of Wealth tax, West Bengal, vs Bishwanath Chatterjee and others, At page 539 of the report, this Court referred to the definition of the expression 'belong ' in the Oxford English Dictionary "To be the property or rightful possession of". So it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax. In other words, the liability to wealth tax arises because of the belonging of the asset, and not otherwise. Mere possession, or joint possession unaccompanied by the right to be in possession, or ownership of property would therefore not bring the property within the definition of "net wealth" for it would not then be an asset "belonging" to the assessee. The first limb of the definition indicated in the Oxford Dictionary may not be applicable to these properties in the instant appeal because these lands were not legally the properties of the vendees and the assessee was the lawful owner of these properties. The vendees were, however, in rightful possession of the properties as against the vendor in view of the provisions of section 53A of the Transfer of Property Act, 1908. The scheme of the Act has to be borne in mind. It has also to be borne in mind that unlike the provisions of Income Tax Act, section 2(m) of the Act uses the expression 'belonging to ' and as such indicates something over which a person has dominion and lawful dominion should be the person assessable to wealth tax for this purpose. In Commissioner of Wealth tax, A.P. vs Trustees of H.E.H. Nizam 's family (Remainder Wealth) Trust, 108 I.T.R. 555, the question as to what is the meaning of the expression 'belonging to ' was raised (page 594 of the report) but this Court did not decide whether the trust property belonged to the trustee and whether the trustee was liable under section 3 of the Act apart from or without reference to section 21 of the Act. The case was disposed of in terms of sections 21 of the Act. In Commissioner of Income tax, A.P. Hyderabad vs Nwab Mir Barkat Ali Khan, , it was held by the Andhra Pradesh High Court that when a vendor had agreed to sell his property as in the instant case and had received consideration thereof but had 1084 not executed a registered sale deed, his liability to pay tax on income from that property did not cease. His position as 'owner ' of the property within the meaning of section 9 of the Indian Income tax Act, 1922 and section 22 of the Income tax Act, 1961 did not thereby change. According to the said decision, the agreement to sell and the receipt of consideration by the assessee, the Nizam of Hyderabad did not create any beneficial ownership according to Indian law in the purchaser neither did it create any equitable ownership in him. The ownership did not change until registered sale deed was executed by the vendor. The term 'owner ' in section 9 of the 1922 Act or section 22 of the 1961 Act did not mean beneficial or equitable owner which concept was not recognised in India. In the instant case as we have noticed the position is different. We are not concerned with the expression 'owner '. We are concerned whether the assets in the facts and circumstances of the case belonged to the assessee any more. This Court had occasion to discuss section 9 of the Income tax Act, 1922 and the meaning of the expression 'owner ' in the case of R.B. Jodha Mal Kuthiala vs Commissioner of Income tax, Punjab, Jammu & Kashmir and Himachal Pradesh, There it was held that for the purpose of section 9 of the Indian Income tax Act, 1922, the owner must be the person who can exercise the rights of the owner, not on behalf of the owner but in his own right. As assessee whose property remained vested in the Custodian of Evacuee Property was not the owner of the property. This again as observed dealt with the expression of section 9 of the Indian Income tax Act, 1922. At page 575 of the report certain observations were relied upon in order to stress the point that these observations were in consonance with the observations of the Gujarat High Court which we shall presently note. We are, however, not concerned in this controversy at the present moment. It has to be borne in mind that in interpreting the liability for wealth tax normally the equitable considerations are irrelevant. But it is well to remember that in the scheme of the administration of justice, tax law like any other laws will have to be interpreted reasonably and whenever possible in consonance with equity and justice. Therefore, specially in view of the fact that the expression used by the legislature has deliberately and significantly not used the expression 'assets owned by the assessee ' but assets 'belonging to the assessee ', in our opinion, is an aspect which has to be borne in mind. The bench decision of the Calcutta High Court in Commissioner 1085 of Income tax, West Bengal II vs Ganga Properties Ltd., rested on the terms of section 9 of the Income tax Act, 1922 and the Court reiterated again that in Indian law beneficial ownership was unknown; there was but one owner, namely, the legal owner, both in respect of vendor and purchaser, and trustee and cestui que trust. The income from house property refers to the legal owner and further that in case of a sale of immovable property a registered document was necessary. But these propositions as noted hereinbefore rested on the use of the expression in section 9 of the Income tax Act, 1922. It used the expression 'owner ' unlike 'belonging to '. The Gujarat High Court in Commissioner of Wealth tax Gujarat I vs Kum Manna G. Sarabhai , held that a spes successionis is a bare and naked possibility such as the chance of a relation obtaining a legacy and that could not form the basis of assessment under section 26 of the Act. At page 174 of the report, the Gujarat High Court referred to the expression 'belonging to ' and referred to the fact that the expression has been the subject matter in a number of judicial decisions. The Court observed that the words 'property ' and 'belonging to ' were not technical words. The Gujarat High Court had occasion to deal with part performance in the case of an agreement of sale in Commissioner of Income tax, Gujarat vs Ashaland Corporation, The Gujarat High Court noted that in case of a person who was a dealer in land, the business transaction would be completed only when the purchase or sale transaction was complete. In order to decide whether the business transaction was complete, the question of vital importance was whether title in the property had passed. It was only on the passing of the title that the transaction became complete and unless the transaction was complete, any advance receipt of money towards the transaction would not form part of income or profit. It was observed by the Gujarat High Court that the doctrine of part performance embodied in section 53A of the , had only a limited application and it afforded only a good defence to the person put in possession under an agreement in writing to protect his possession to the extent provided in section 53A, but an agreement in writing to sell, coupled with the parting of possession would not confer any legal title on the purchaser and take the land out of the stock in trade of the seller if the seller was a dealer in land. The context in which the Gujarat High Court had to deal this question was entirely different. The Gujarat High Court had to proceed on the basis that the assessee 1086 under the Income tax Act was the owner and he was dealing in land and therefore whether the land was stock in trade was the question. In the instant appeal we are concerned with the expression 'belonging to '. Therefore the observations of the Gujarat High Court would not be quite apposite to the problem of the instant appeal. This question was again viewed by the Bombay High Court in a slightly different context in Commissioner of Income tax, Bombay City III vs Smt. T.P. Sidhwa, The Bombay High Court was not concerned with the expression 'belonging to '. Our attention was drawn to another decision of the Gujarat High Court in Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad, There the facts were more or less identical with the instant appeal on this aspect of the matter. The assessee owned two properties and had agreed to sell one property to a company. The vendees had paid Rs.30 lakhs in January, 1964 and were put in possession of the property. Thereafter, four instalments of Rs. 17 1/2 lakhs each were paid and the property was conveyed by four deeds executed in 1970 71 and 1972. It was contended that at the relevant time, the property did not belong to the assessee. It was held by the Gujarat High Court that receipt of part of the sale price and parting of possession would not divest the vendor of immovable property of his title to the property. The doctrine of part performance embodied in section 53A of the had limited application and afforded a good defence to the person put in possession. The legal position and the relevant clauses of the agreement of sale showed that the assessee was the owner of the property at the relevant valuation dates. Therefore, according to the Gujarat High Court, the property agreed to be sold which had been parted with was includible as an asset of the assessee. Even in some cases the phrase 'belonging to ' is capable of connoting interest less than absolute perfect legal title. See in this connection the observations of this Court in Raja Mohammad Amir Ahmed Khan vs Municipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923. This Court observed in that case that though the expression 'belonging to ' no doubt was capable of denoting an absolute title was nevertheless not confined to connoting that sense. Full possession of an interest less than that of full ownership could also be signified by that expression. Before concluding this aspect of the matter, there is certain as 1087 pect which has to be borne in mind. Reliance was placed as we have mentioned hereinbefore on the decision of the Gujarat High Court in the case of Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad (supra) It was contended that if the Gujarat High Court 's view was correct, then the assessee 's contention on this aspect in the instant appeal cannot be accepted. On behalf of the assessee it was submitted that the decision of the Gujarat High Court in Commissioner of Wealth tax, Gujarat I vs Kum. Manna G. Sarabhai (supra) not having been taken into consideration by the Gujarat High Court in the later decision, the Gujarat High Court the judgment on which revenue relied was not correct. It is not necessary in the view we have taken on the other aspect of the matter, namely, the use of the expression 'belonging to ' to discuss this point any further. It was further submitted before us that from the said decision of the Gujarat High Court in Commissioner of Wealth Tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad (supra), a special leave petition was filed by the assessee, which was dismissed by this Court on 17th January, 1983. (See in this connection 144 I.T.R. Statute page 23). It is, however, well settled that dismissal of special leave petition in limine does not clothe the decision under appeal in special leave petition with the authority of the decision of this Court. See in this connection the observations in Daryao & Ors. vs State of U.P. & Ors. , ; It may be mentioned as was rightly observed by a full bench of the Allahabad High Court in Sahu Govind Prasad vs Commissioner of Income tax, at 863, special leave is a discretionary jurisdiction and the dismissal of a special leave petition cannot be construed as affirmation by this Court of the decision from which special leave was sought for. On this aspect, it may also be mentioned that our attention was drawn to some decisions which we shall presently note. The Punjab and Haryana High Court in the case of Smt. Kala Rani vs Commissioner of Income tax, Patiala I, had occasion to discuss this aspect of the matter. But the Punjab and Haryana High Court was construing the meaning of the expression 'owner ' under section 22 of the Income tax Act, 1961. There, the division bench of the Punjab & Haryana High Court held that the assessee occupied the property after the execution of the agreement of sale deed in his favour and after completion of the building, he was in a position to earn income from the property sold to him, though the registered sale deed was executed subsequently in April, 1969. It was 1088 held that the assessee was 'owner ' in terms of section 22 of the Income tax Act, 1961. The Madras High Court had occasion to discuss this aspect in Mrs. M.P. Gnanambal vs Commissioner of Income tax, Madras, There the facts were entirely different and the Madras High Court held that the rights with reference to the properties in question in that case could only be described as a delusion and a snare so long as the sons continued to occupy the property which they were entitled to under the will and to describe the assessee 's right as owner of the property would be a complete misnomer. There, the court was construing the will and section 22 of Income tax Act, 1961 as to who were the owners in terms of the will. In all these cases as was reiterated by the Calcutta High Court in S.B. (House & Land) Pvt. Ltd. vs Commissioner of Income tax, West Bengal, the question of ownership had to be considered only in the light of the particular facts of a case. The Patna High Court in Addl. Commissioner of Income tax Bihar vs Sahay Properties and Investment Co. (P) Ltd., was concerned with the construction of the expression 'owner ' in section 22 of the Income tax Act, 1961. There, the assessee had paid the consideration in full and had been in exclusive and absolute possession of the property, and had been empowered to dispose of or even alienate the property. The assessee had the right to get the conveyance duly registered and ex ecuted in its favour, but had not exercised that option. The assessee was not entitled to say that because of its own default in having a deed registered in its name, the assessee was not the owner of the property. In the circumstances, it was held that the assessee must be deemed to be the owner of the property within the meaning of section 22 of Income tax Act, 1961 and was assessable as such on the income from the property. This is only an illustrative point where in certain circumstances without any registered conveyance in favour of a purchaser, a person can be considered to be 'owner '. It may incidentally be mentioned that this Court has granted special leave to appeal against this judgment. See in this connection Salmond 's conception of 'ownership ' has been noted. The meaning of the expression 'belonging to ' has also been noted. We have discussed the cases where the distinction between 'belonging to ' and 'ownership ' has been considered. The following facts emerge here: (1) the assessee has parted with the possession which is one of the essen 1089 tials of ownership, (2) the assessee was disentitled to recover possession from the vendee and assessee alone until the document of title is executed was entitled to sue for possession against others i.e. others than the vendee in possession in this case. The title in rem vested in the assessee, (3) The vendee was in rightful possession against the vendor, (4) the legal title, however, belonged to the vendor. (5) The assessee had not the totality of the rights that constitute title but a mere husk of it and a very important element of the husk. The position is that though all statutes including the statute in question should be equitably interpreted, there is no place of equity as such in taxation laws. The concept of reality in implementing fiscal provision is relevant and the Legislature in this case has not significantly used the expression 'owner ' but used the expression 'belonging to '. The property in question legally, however, cannot be said to belong to the vendee. The vendee is in rightful possession only against the vendor. Speaking for myself, I have deliberated long on the question whether in interpreting the expression 'belonging to ' in the Act, we should not import the maxim that "equity looks upon a thing as done which ought to have been done" and though the conveyance had not been executed in favour of the vendee, and the legal title vested with the vendor, the property should be treated as belonging to the vendee and not to the assessee. I had occasion to discuss thoroughly this aspect of the matter with my learned Brother and in view of the position that legal title still vests with the assessee, the authorities we have noted are preponderantly in favour of the view that the property should be treated as belonging to the assessee in such circumstances, I shall not permit my doubts to prevail upon me to take the view that the property belongs to the vendee and not to the assessee. I am conscious that it will work some amount of injustice in such a situation because the assessees would be made liable to bear the tax burden in such situations without having the enjoyment of the property in question. But times perhaps are yet not ripe to transmute equity on this aspect in the interpretation of law much as I would have personally liked to do that. As Benjamin Cardozo has said, "The judge, even when he be free, is not wholly free". A Judge cannot innovate at pleasure. It may be said that the legislature having designedly used the expression 'belonging to ' and not the expression 'owned by ' had perhaps expected judicial statesmanship in interpretation of this expression as leading to an interpretation that in a situation like this it should not be treated as belonging to the assessee but as said before 1090 times are not yet ripe and in spite of some hesitation I have persuaded myself to come to the conclusion that for all legal purposes the property must be treated as belonging to the assessee and perhaps legislature would remedy the hardship of assessee in such cases if it wants. The assessee had a mere husk of title and as against the vendee the assessee had no reality of title but as against the world, he was still the legal owner and real owner. As has been observed by this Court in Commissioner of Wealth tax, West Bengal vs Bishwanath Chatterjee and Others (supra) the property is owned by one to whom it legally belongs. The property does not legally belong to the vendee as against the vendor, the assessee. In Webstor 's Dictionary 'belonging to ' is explained as meaning, inter alia, to be owned by, be in possession of. The precise sense in which the words were used, therefore, must be gathered only by reading the instrument or the document as a whole. Section 53A of the Transfer of Property Act, 1908 is only a shield and not a sword. In Aiyar 's Law Laxicon of British India, [1940] Edition page 128, it has been said that the property belonging to a person has two meanings (1) ownership; (2) the absolute right of the user. The same view is reiterated in Stroud 's Judicial Dictionary 4th Edn. page 260. The expression: 'property belonging to ' might convey absolute right of the user as well as of the ownership. A road might be said, with perfect propriety, to belong to a man who has the right to use it as of right, although the soil does not belong to him. Under section 53A of the Transfer of Property Act, 1908 where possession has been handed over to the purchasers and the purchasers are in rightfuly possession of the same as against the assessee and the occupation of the property in question, and secondly that the entire consideration has been paid, and thirdly the purchasers were entitled to resist eviction from the property by the assessee in whose favour the legal title vested because conveyance has not yet been executed by him and when the purchasers were in possession had right to call upon the assessee to execute the conveyance, it cannot be said that the property legally belonged to the assessee in terms of section 2(m) of the Act in the facts and circumstances of the case even though the statute must be read justly and equitably and with the object of the section in view. We are conscious that if a person has the user and is in the enjoyment of 1091 the property it is he who should be made liable for the property in question under the Act yet the legal title is important and the legislature might consider the suitability of an amendment if it is so inclined. This question therefore must be answered in favour of the revenue and in the affirmative. The appeal in this aspect must therefore fail. For the second question it is necessary to refer to section 2(e) which provides for the definition of assets by stating that "assets" includes property of every description, movable or immovable, but does not include, ". . . (iv) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant;" Therefore, in order to be excluded from the assets of the assessee, the right being the sum which was annually to be paid under the agreement or letter mentioned hereinbefore must be by the terms and conditions precluded commutation of any portion thereof into a lumpsum grant. The question therefore is could this lumpsum grant of Rs.25 lakhs be commuted by the Nizam and the capital value of the commutation be received? Furthermore, the next question that arises was whether that commutation was precluded by the terms and conditions relating to that right. It may be that preclusion might be either by express terms and conditions of the right or as an inference from the terms and conditions of the payment. We need not go into the rights of the erstwhile princes before the abolition of the privy purses whether the privy purses could be commuted or not. The term 'annuity ' is not defined in the Act. According to the Oxford Dictionary, 'annuity ' means sums payable in respect of a particular year; yearly grant. An annuity is a certain sum of money payable. yearly either as a personal obligation of the grantor or out of property. The hall mark of an annuity, according to Jarman On Wills (page 1113) is: (1) it is a money; (2) paid annually; (3) in fixed sum; and (4) usually it is a charge personally on the grantor. 1092 Whether a particular sum is an annuity or not has been considered in various cases. It is not necessary in the facts and circumstances of the case and in view of the terms of the payment indicated to examine all these cases. In Ahmed G.H. Ariff and Others vs Commissioner of Wealth tax, Calcutta, , this Court held that the word 'annuity ' in clause (iv) of section 2(e) of the Act must be given the signification which it has assumed as a legal term owing to judicial interpretation and not its popular and dictionary meaning. In Commissioner of Wealth tax Gujarat vs Arundhati Balkrishna, , there were two deeds of trust. The assessee 's father had settled certain shares in trust for the benefit of the assessee and her two brothers. The trustees were to pay the residue of the income from the trusts in equal shares to the beneficiaries after deducting all costs and expenses. The assessee had a right after she had attained majority and after the birth of her first child to require the trustees to pay her shares out of the corpus of the trust fund absolutely up to one half thereof. Under another trust created by her mother in law of certain sums of money and certain shares the trustees were required to pay the income of the trust funds after deducting expenses to the assessee during her lifetime. It was held that the payments to the assessee under the trust deeds were not 'annuities ' within the meaning of section 2(e) (iv) of the Act. In Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur, , this question arose again. The Maharaja of Jaipur had executed a deed of irrevocable trust whereunder the properties mentioned in the schedule thereto stood transferred to the trustee. The trust fund was to include the assets mentioned in the schedule and also such additions thereto and other capital moneys which might be received by the trustee. The assessee was one of the beneficiaries under the trust to whom the trustee was to pay during her lifetime 50 per cent of the income of the trust fund. The question was whether the assessee had a life interest in the corpus of the trust fund and her interest was therefore an 'asset ' liable to wealth tax or whether the assessee had only a right to an annuity and as such her right was exempt from wealth tax in view of section 2(e) (iv) of the Act. It was held by this Court that since neither the trust fund nor the amount payable to the assessee was fixed and the only thing certain was that she was entitled to 50 per cent of the income of the trust fund, 1093 what the assessee was entitled to was not an annuity but an aliquot share in the income of the trust fund. The assessee had a life interest in the trust fund and the right of the assessee under the trust deed was not exempt from wealth tax by virtue of the provisions of section 2(e) (iv). In Commissioner of Wealth tax, Lucknow vs P.K. Banerjee, , it was held that the right of the assessee in the trust fund in that case was not an 'annuity ' and was not exempt from the wealth tax under section 2(e) (iv) of the Act. It was further observed that in order to constitute an 'annuity ' the payment to be made periodically should be a fixed or predetermined one and it should not be liable to variation depending upon or on any ground relating to the general income of the fund or estate which was charged for such payment. In this case, in view of the background of the terms of payment and the circumstances why the payment was made, there cannot be any doubt that Rs.25 lakhs annually was an 'annuity '. It was a fixed sum to be paid out of the property of the Government of India in lieu of the previous income of the assessee from Sarf e khas. Therefore, it was an annuity. The only question that arises, was there any express provision which prevented commutation of this annuity into a lumpsum? Counsel for the revenue contended that there must be an express provision which must preclude commutation. In this case indeed there is no express provision from the document itself. The question is: can, from the circumstances of the case, such an express provision precluding commutation be inferred in the facts and circumstances of this case? The background of the facts and circumstances of the payment has to be kept in mind. The Nizam had certain income. He was being given three sums one was the privy purse which was not commutable; the other was payment of Rs.25 lakhs for the upkeep of palaces etc. and the third of Rs.25 lakhs in lieu of his previous income from the Sarf e khas. Income is normally meant for expenditure. The Nizam had to incur various expenditures. Commutation is often made when one is not certain as to whether the source from which that income comes for example, when a man retires from service, he normally commutes in order to ensure for himself and after his death for his family a certain income which he can ensure by getting the commuted amount invested in his private bank or otherwise which he may not be sure because upon his death the pension will cease. 1094 In this case this being an aggrement between erstwhile ruler and the Government of India, there is no such motivation and this payment of Rs.25 lakhs in lieu of the previous income of Sarf e khas must be read in conjunction with two other sums namely Rs.50 lakhs as privy purse and Rs.25 lakhs for upkeep of palaces. This bears the same character. As privy purses were not commutable, we are of the opinion that from the circumstances and keeping in background of the payment, there was an express provision flowing from the circumstances precluding the commutation of this amount of Rs.25 lakhs. If that is the position, then, in our opinion, it was exempt under section 2(e) (iv) of the Act. There was no right granted and can be gathered from the terms of the grant of payment for the assessee to claim commutation of the amount of Rs.25 lakhs. That would defeat the purpose and the set up of the arrangement under which the payment of the amount was made. The nature of privy purses have been discussed in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India, ; We are, however, not concerned with the controversy of the privy purse. But it is quite evident from the nature of the sum stipulated in the letter, the assessee had no right to claim commutation. Taking that fact in conjunction with the circumstances under which the payment of Rs.25 lakhs was agreed to, we are of the opinion that it must be held that from the terms of the agreement, there was an express stipulation precluding commutation. If that is so then it comes within clause (iv) of section 2(e) of the Act and the assessee was entitled to exemption. The question therefore must also be answered in the negative and in favour of the assessee. The appeal is disposed of in the aforesaid terms. The judgment and order of the High Court are modified accordingly. In view of the divided success, there will be no order as to costs. A.P.J. Appeal allowed in part. [/INST]In the assessment year 1957 58, the Wealth Tax Officer had included a sum of Rs.4,90,775 representing the market value of certain immovable properties in respect of which, although the assessee had received full consideration money, he had not executed any registered sale deeds in favour of the vendees. The question was whether the properties belonged to the assessee even after such sale for the purpose of inclusion of his net wealth within the meaning of section 2(m) of the Wealth Tax Act, 1957. The Wealth Tax Officer held that the assessee 1073 still owned those properties and consequently the value of the same was included in his net wealth. On appeal, the Appellate Assistant Commissioner sustained the order of the Wealth Tax Officer with certain deductions in value. On further appeal, the Tribunal held that the assessee had ceased to be the owner of the properties because the assessee having received the consideration money from the purchasers and the purchasers having been put into possession were protected in terms of section 53A of the and the term 'owner ' not only included the legal ownership but also the beneficial ownership. The High Court following the ratio of Commissioner of Income Tax, A.P. Hyderabad vs Nawab Mir Barkat Ali Khan, , reversed the order of Tribunal and upheld that of the Wealth Tax Officer and the Assistant Appellate Commissioner. The Assessee Nizam of Hyderabad, was a paramount ruler owning certain private properties called Sarf e khas. On surrendering his paramountcy and acceding to the Union of India, his private properties were taken over by the Government and it was agreed to pay him a sum of Rs. 1 crore annually distributed as follows: (a) Rs.50 lakhs as a privy purse; (b) Rs.25 lakhs in lieu of his previous income from the Sarf e khas, and (c) Rs.25 lakhs for the upkeep of palaces etc. The Government in its letter to the assessee stated that his Sarf e khas estates should not continue as an entirely separate administration independent of the Diwani administrative structure and it should, therefore, be completely taken over by the Diwani, its revenue and expenditure being merged with the revenues and expenditure of the State. Question was whether the assessee 's right to receive the sum of Rs.25 lakhs O.S. from the State Government was an asset for the purposes of inclusion in his net wealth under the Wealth Tax Act, 1957. The Wealth Tax Officer treating the said sum as an annuity and as an asset or property, capitalised the same to Rs.99,78,572 and included that amount as an asset of the assessee. The Appellate Assistant Commissioner agreed with this view. The Tribunal, however, refused to call it as an annuity, characterised it as an annual payment for surrender of life interest and held that the capitalised value of such life interest be added to the net wealth and taxed. The High Court agreed with the view taken by the Tribunal that it was only an annual payment made in compensation for the property which had been taken over by the Govern 1074 ment, therefore, it was a part of the wealth and it was possible to commute the annual payment of Rs.25 lakhs. The High Court found that there was neither any express preclusion nor any circumstances from which legitimately an inference could be drawn precluding commutation of the said amount into a lumpsum grant. Consequently, the High Court upheld the order of the Wealth Tax Tribunal. Partly allowing the Appeal, ^ HELD: (1) Under section 3 of the Wealth Tax Act, 1957 the charge of wealth tax is on the 'net wealth ' of the assessee on the relevant valuation date as defined under section 2(m) of the Act. [1081E F] (2) The material expression for the purposes of this appeal is "belonging to the assessee on the valuation date". The properties in respect of which registered sale deeds had not been executed but consideration for sale of which had been received and possession in respect of which had been handed over to the purchasers belonged to the assessee for the purpose of inclusion of his net wealth. [1081G H; 1082A] (3) It is not necessary for the purpose of section 2(m) to be tied down with the controversy whether in India there is any concept of legal ownership apart from equitable ownership or not or whether under sections 9 and 10 of the Indian Income Tax Act, 1922 and sections 22 to 24 of the Indian Income Tax Act, 1961, where 'owner ' is spoken of in respect of house properties, the legal owner is meant and not the equitable or beneficial owner. All the rights embedded in the concept of ownership of Salmond cannot strictly apply either to the purchasers or the assessee in the instant case. [1082C D; 1082H; 1083A] (4) The liability to wealth tax arises because of the belonging of the asset, and not otherwise. Mere possession, or joint possession unaccompanied by the right to be in possession, or ownership of property would, therefore, not bring the property within the definition of "net wealth" for it would not then be an asset "belonging" to the assessee. Unlike the provisions of Income tax Act, section 2(m) of the Act uses the expression 'belonging to ' to indicate that the person having lawful dominion of the assets would be assessable to wealth tax. [1083C E] (5) Though the expression 'belonging to ' no doubt was capable of denoting an absolute title was neyertheless not confined to connoting that sense. Full possession of an interest less than that of full ownership could also be signified by that expression. [1086G H] 1075 Commissioner of Wealth tax, West Bengal vs Bishwanath Chatterjee and Others, and Raja Mohammad Amir Ahmed Khan vs Municipal Board of Sitapur and another. A.I.R. , relied upon. Webster 's Distionary and Aiyar 's Law Lexicon of British India, [1940] edn., p. 128 and Salmond on Jurisprudence, 12th edn., pp. 246 to 264, referred to. (6) The property is owned by one to whom it legally belongs. The property does not legally belong to the vendee as against the vendor, the assessee. The precise sense in which the words 'belonging to ' were used in section 2(m) of the Act must be gathered only by reading the instrument or the document as a whole. [1090C D] (7) Though all statute including the Wealth Tax Act should be equitably interpreted, there is no place of equity as such in taxation laws. The concept of reality in implementing fiscal provision is relevant and the Legislature in section 2(m) has not significantly used the expression 'owner ' but used the expression 'belonging to '. The Legislature having designedly used the expression 'belonging to ' and not the expression 'owned by ' had perhaps expected Judicial statesmanship in interpretation of this expression. [1089G H] (8) On a distinction being made between 'belonging to ' and 'ownership ' the following facts emerge: (1) the assessee has parted with the possession which is one of the essentials of ownership; (2) the assessee was disentitled to recover possession from the vendee and assessee alone until document of title is executed was entitled to sue for possession against others i.e. others than the vendee in possession in this case. The title in rem vested in the assessee; (3) the vendee was in rightful possession against the vendor; (4) the legal title, however, belonged to the vendor; and (5) the assessee had not the totality of the rights that constitute title but a mere husk of it and a very important element of the husk. [1088H; 1089A B] (9) The property in question legally cannot be said to belong to the vendee. The vendee is in rightful possession only against the world. Since the legal title still vests with the assessee, the property should be treated as belonging to the assessee. It will work some amount of injustice in such a situation because the assessees would be made liable to bear the tax burden in such situations without having the enjoyment of the property in question. But times perhaps are not ripe to transmute equity on this aspect in the interpretation of law. [1089C F] 1076 (10) Under section 53A of the Transfer of Property Act, 1908 where possession had been handed over to the purchasers and the purchasers are in rightful possession of the same as against the assessee, secondly that the entire consideration has been paid, and thirdly the purchasers were entitled to resist eviction from the property by the assessee in whose favour the legal title vested because conveyance has not yet been executed by him and when the purchasers were in possession had right to call upon the assessee to execute the conveyance, it cannot be said that the property legally belonged to the assessee in terms of section 2(m) of the Act in the facts and circumstances of the case, even though the statute must be read justly and equitably and with the object of the section in view. If a person has the user and is in the enjoyment of the property it is he who should be made liable for the property in question under the Act, yet the legal title is important and the Legislature might consider the suitability of an amendment if it is so inclined. [1090F H; 1091A] Commissioner of Wealth tax, Gujarat IV vs H.H. Maharaja F.P. Gaekwad, approved. Commissioner of Income tax, A.P. Hyderabad vs Nwab Mir Barkat Ali Khan, referred to. Commissioner of Wealth tax, A.P. vs Trustees of H.E.H. Nizam 's family (Remainder Wealth) Trust, , R.B. Jodha Mal Kuthiala vs Commissioner of Income tax, Punjab, Jammu & Kashmir and Himachal Pradesh, , Commissioner of Income tax, West Bengal II vs Ganga Properties Ltd., , Commissioner of Wealth tax Gujarat I vs Kum Manna G. Sarabhai, , Commissioner of Income tax, Gujarat vs Ashaland Corporation, , Commissioner of Income tax, Bombay City III vs Smt. T.P. Sidhwa, 133 I.T.R.840, Smt. Kala Rani vs Commissioner of Income Tax, Patiala I, , Mrs. M.P. Gnanambal vs Commissioner of Income tax, Madras, , S.B. (House & Land) Pvt. Ltd. vs Commissioner of Income tax, West Bengal, and Addl. Commissioner of Income tax Bihar vs Sahay Properties and Investment Co. (P) Ltd., distinguished. (11) Special leave is a discretionary jurisdiction and the dismissal of a special leave petition cannot be construed as affirmation by the Supreme Court of the decision from which special leave was sought for. [1087E] Daryao & Ors. vs State of U.P. & Ors. , ; relied upon. 1077 Sahu Govind Prasad vs Commissioner of Income tax, at 863 approved. (12) Section 2(e) (iv) of the Wealth Tax Act, 1957 provides that "assets" includes property of every description, movable or immovable, but does not include a 'right to any annuity ' in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant. [1091B D] (13) The term 'annuity ' is not defined in the Act. It must be given the signification which it has assumed as a legal term owing to judicial interpretation and not its popular and dictionary meaning. An 'annuity ' is a certain sum of money payable yearly either as a personal obligation of the grantor or out of property. The hall mark of an annuity is: (1) it is a money; (2) paid annually; (3) in fixed sum; and (4) usually it is a charge personally on the grantor. [1091G H] (14) In this case, in view of the background of the terms of payment and the circumstances why the payment was made, there cannot be any doubt that Rs.25 lakhs annually was an 'annuity '. It was a fixed sum to be paid out of the property of the Government of India in lieu of the previous income of the assessee from Sarf e khas. Therefore, it was an 'annuity '. [1093C D] (15) In the instant case, there is no express provision in the document itself which prevented commutation of this annuity into a lump sum. For inferring whether such as express provision precluding commutation exists, the background of the facts and circumstances of the payment has to be kept in mind. The assessee was given Rs.25 lakhs in lieu of his previous income from the Sarf e khas. Income is normally meant for expenditure. The assessee had to incur various exenditures. Commutation is often made when one is not certain as to whether the source from which that income comes. In this case, this being an agreement between earstwhile ruler and the Government of India, there is no such motivation and this payment of Rs.25 lakhs in lieu of the previous income of Sarf e khas must be read in conjunction with two other sums namely Rs.50 lakhs as privy purse and Rs.25 lakhs for upkeep of palaces. This bears the same character. [1093E H; 1094A B] (16) As privy purses were not commutable, from the circumstances and keeping in background of the payment, there was an express provision flowing from the circumstances precluding the 1078 commutation of this amount of Rs.25 lakhs and, therefore, it was exempt under section 2(e) (iv) of the Act. [1094B C] (17) There was no right granted and can be gathered from the terms of the grant of payment for the assessee to claim commutation of the amount of Rs.25 lakhs. That would defeat the purpose of the set up of the arrangement under which the payment of the amount was made. From the nature of the sum stipulated in the letter written by the Government to the assessee, the assessee had no right to claim commutation. Taking that fact in conjunction with the circumstances under which the payment of Rs.25 lakhs was agreed to, it is held that from the terms of the agreement, there was an express stipulation precluding commutation and, therefore, it comes within cl. (iv) of section 2(e) of the Act and the assessee was entitled to exemption. [1094C F] Oxford Dictionary: Jarman on Wills (P. 1113), relied on and Ahmed G.H. Ariff and Others vs Commissioner of Wealth tax, Calcutta, , Commissioner of Wealth tax Gujarat vs Arundhati Balkrishna, , Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur, , Commissioner of Wealth tax, Lucknow vs P.K. Banerjee, and H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India; , referred to. </s>

<s>[INST] Summarize the judgementAppeals Nos. 448 and 449 of 1957. Appeals from the judgment and order dated September 27, 1956, of the Mysore High Court in Writ Petitions Nos. 44 and 45 of 1955. N. C. Chatterjee, D. N. Mukherjee and B. N. Ghose, for the appellant in C. A. No. 448 of 1957. V. L. Narasimhamoorthy, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant in C. A. No. 449 of 1957. G. R. Ethiraiulu Naidu, Advocate General, Mysore,, B. R. G. K. Achar and K. R. Choudhuri, for the respondent. February 3. The Judgment of the Court was delivered by KAPUR, J. These are two appeals brought against two judgments and orders of the High Court of Mysore which arise out of two petitions filed by the appellants under article 226 challenging the legality of the imposition of octroi on wool and cotton under section 98 of the City of Bangalore Municipal Corporation Act (Act LXIX of 1949), which for the sake of convenience, will be termed the " Act ". On March 31, 1954, a resolution was passed purporting to be under section 98(1) of the Act by which it was 700 resolved to levy an octroi on cotton and wool as follows : Name of the Articles Rate of duty 1. Raw cotton and wool (this includes both loose Rs. 1/9/ per and compressed, made in cent. ad valorem India or foreign) 2. . This was notified in the Mysore Gazette on April 3, 1954, and was also published as required by section 98(1) of the Act. Objections were invited and it is admitted that both the appellants filed their objections. Final resolution under section 98(2) was passed on December 21, 1954, and the resolution in regard to octroi came into force as from January 1, 1955. It may be mentioned that the final resolution passed under section 98 (2) of the Act was not published in the Official Gazette but was published in the local newspapers and a notice dated December 23,1954, was also sent to the appellants to the effect that after considering their objections the Municipality had decided to levy an octroi on the goods at the rate already notified. The appellant in C.A. 448/57, filed a petition in the High Court on March 15, 1955, under article 226 challenging the validity of the imposition of the octroi on the grounds: (1) that the tax was in contravention of section 98(2) of the Act in so far as a notice was not published in the Official Gazette; (2) that the tax was in contravention of section 130 of the Act and (3) that there was excessive delegation. The appellant in C. A. 449/57, filed its petition on March 17, 1955, in which besides challenging the validity of the imposition of the tax on grounds above set out, it also challenged the vires of the imposition on the grounds : , 1. that the levy of the octroi was in contravention of article 276(2) of the Constitution by which a tax on trade exceeding Rs. 250/ per annum could not be imposed 701 2. that it was a contravention of article 301 which guaranteed freedom of inter State trade and commerce, and 3. that it was in contravention of article 19(1)(g) of the Constitution. The High Court rejected all these objections and the appellant has come to this court on a certificate of the High Court under article 133(1) of the Constitution. In order to decide the question of the legality of the tax it is necessary to refer to the relevant provisions of the Act. Section 97 enumerates the taxes and duties which the Corporation is empowered to levy under the Act. Section 97(e) provides: " 97. The Corporation may levy (e)an octroi on animals or goods or both brought within the octroi limits for consumption or use therein. " Section 98 which deals with the powers. of control of Government and the procedure for the levying of the Municipal taxes provides: Section 98 (1). " Before the Corporation passes any resolution imposing a tax or duty for the first time it shall direct the Commissioner to publish a notice in the Official Gazette and in the local news. papers of its intention and fix a reasonable period not being less than one month from the date of publication of such notice in the Official Gazette for submission of objections. The Corporation, may, after considering the objections, if any, received within the period specified, determine by resolution to levy the tax or duty. Such resolution shall specify the rate at which, the date from which and the period of levy, if any, for which such tax or duty shall be levied. (2) When the Corporation shall have determined to levy any tax or duty for the first time or at a new rate, the Commissioner shall forthwith publish a notice in the manner laid down in sub section (1) specifying the date from which, the rate at which and the period of levy, if any, for which such tax or duty shall be levied. " 702 It was argued that instead of passing a resolution Imposing the octroi duty, the Corporation should have 'first published its " resolution " to impose the tax and that the Corporation could not at once pass " a resolution " by which it imposed the tax. It published that resolution in the Official Gazette and also in accordance with other provisions of section 98(1) and invited objections which were filed. The only defect, if defect it can be called at all, was that instead of saying that it " intended " to impose a tax, the notice which was published said the tax "had been resolved to be levied. " This is a technicality and is of no substance. The next objection raised was that after the Corporation adopted the resolution imposing the tax which was after considering all the objections the publication was only in local newspapers and there was no publication in the Government Gazette and this, it was submitted, was such a serious defect as to make the imposition illegal and ultra vires. In support counsel for the appellants relied on certain judgments where publication in the Official Gazette was held to be a condition precedent to the legality of the imposition of the tax. These cases are Krishna Jute & Cotton Mills vs The Municipal Council, Vizianagram (1); Municipal Council, Rajamundry vs Nidamarti Jaladurga Prasadarayudu (2). Reference was made also to The Municipal Council, Anantapur vs Sangali Vasudeva Rao (3) ; Manak Chand vs Municipal Council(4) and State of Kerala vs P. J. Joseph (5 ). This question we are not considering as we are referring this case to a larger Bench on certain constitutional points and shall refer this question also in the sequel. The second objection raised was that there was no compliance with section 130 of the Act. That section is as follows : Section 130. " If the corporation by a resolution determines that an octroi should be levied on animals or goods brought within the octroi limits of (1) A.I.R. 1926 Mad. (2) A.I.R. 1926 Mad. (3) Mad. (4) A.I.R. 1951 Raj. (5) A.I.R. 1958 S.C. 296, 299. 703 the city, such octroi shall be levied on such articles or goods specified in Part V Schedule III at such rates not exceeding those laid down in the said ' Part in such manner as may be determined by the corporation. " That is not a charging section but it imposes a limitation on the power of the Municipality as to the rate at which a tax can be imposed. It was further argued that before a resolution under section 98(1) could be passed the goods sought to be taxed had to be specified under section 130 read with Schedule 111, Part V of the Act. Clause 18 of that Schedule provides that octroi on animals and goods shall be levied at the rates not exceeding the following. Classes I to VII specify articles on which octroi can be levied at the maximum rate. Class VIII was as follows: Octroi Maximum rate "Other articles which are not speci fied above and which may be Rs.2 0 0 per cent. approved by the Corporation ad valorem" by an order in this behalf That class empowers the Municipal Council to impose octroi duty on other articles which are not specified but which may be approved by the Corporation. In other words the Corporation can choose other articles upon which tax can be imposed and the respondent Corporation in the present case did resolve to impose tax on raw cotton and wool and also fixed the rate at Rs. 1 9 0 per cent. ad valorem. The submission that as a result of the operation of section 130 first a resolution had to be passed specifying raw cotton and wool as goods on which octroi duty would be levied and then the procedure under section 98(1) and (2) had to be gone through is without substance. What the Corporation did was that it passed a resolution choosing these goods to be goods on which octroi duty was to be levied and by the same resolution it resolved that the goods therein specified be taxed at the rate therein specified. There is no contravention of section 130 even if the contention of the appellants was to be taken most strictly, The goods were specified; the 704 rate of tax to be levied on the goods was also specified; the resolution was passed to that effect and the other procedure laid down in section 98(1) was then followed. In our opinion it is not necessary that first a resolution should be passed specifying the goods and then another resolution should be passed showing the intention of the Municipality to tax those goods. What has been done substantially complies with the provisions of the Act. It was next argued that the words of Class VIII in Part V of Schedule III where the ' words used are " other articles which are not specified above " and which may be approved by the Corporation by order in this behalf meant that the goods must be precisely defined and included by name in the Schedule and that the use of the word in this behalf " meant adding to the list of articles in Schedule III. Reliance was placed on the interpretation of the word " in this behalf " as given by this Court in Bijay Cotton Mills Ltd. vs Their Workmen (1). But that case has no application to the facts of the present case because the resolution was, as a matter of fact, passed for the purpose of imposing an octroi duty on the goods in dispute. The words used in Bijay Cotton Mills Ltd. vs Their Workmen(2) were in another context and ' even there all that was said was that a notification had to issue making the Central Government the appropriate Government. As we have said above in the present case there was a resolution which sought to include these goods in the Schedule for the purpose of imposing the tax. The excessive nature of delegation under Class VIII in Part V of Schedule III was also urged but this was not a question which was raised in the High Court nor is there any substance in the matter. The argument raised was that the power of the Municipal Corporation to specify goods under Class VIII was excessive delegation which was both uncanalised and uncontrolled and reliance was placed on a judgment of this Court in Hamdard Dawakhana vs Union of India("); but that case has no application to the facts (1) ; (2) ; , 705 of the present case. In the present case the Legislature has laid down the powers of the Municipality to tax various goods. It has enumerated certain articles and animals and Class VIII read with section 97(e) of the Act has authorised the Municipality to impose tax on other articles and goods. This power is more in the nature of conditional delegation as was held in Baxter vs Ah Way(1) where it was hold that under a. 52 (g) of the (Australian) Customs Act, 1901, a power given to prohibit by proclamation the importation of certain articles was not a delegation of legislative power but conditional legislation because the prohibition of importation was a legislative abet of Parliament itself and the effect of sub section (g) of section 52 was only to confer upon the Governor General in Council the discretion to determine to which class of goods other than those specified in the section and under what conditions the prohibition shall apply. All that the Legislature has done in the present case is that it has specified certain articles on which octroi duty can be imposed and it has also given to the Municipal Corporation the discretion to determine on what other goods and under what conditions the tax should be levied. That, in our opinion, is not a case which falls under the rule laid down by this Court in Hamdard Dawakhana vs Union of India (2). It was contended in C. A. 449/57 that the imposition of duty on raw cotton could not cover processed cotton that is cotton which had been ginned, combed and pressed. The High Court held that the cotton by being ginned or pressed in bales does not cease to be raw cotton and was to be regarded as raw for the purpose of the Act. The same would apply to wool. The notification levying the tax specifically stated that raw cotton and wool included both loose and compressed, i.e., compressed cotton and wool whether it was Indian cotton or foreign cotton. It will not, in our opinion, be a correct meaning to give to the notification if it were " interpreted to apply only to cotton which had been gathered from the fields and had neither been ginned nor pressed. " We agree with (1) ; (2) ; 706 the High Court that this resolution covers the articles which the appellants in the two cases were importing into the limits of the Corporation of Bangalore. I The learned Advocate General appearing for the respondent also relied on section 38 of the Act which provides : Section 38 (1). " No act done, or proceeding taken under this Act shall be questioned merely on the ground (a) . . . . . . . . (b) of any defect or irregularity in such act or proceeding, not affecting the merit of the case. " This section validates all defects and irregularities in in any act or proceedings which do not affect the merit; of the case. It was submitted that this section is in another chapter, i.e., chapter 2 dealing with provisions common to the Corporation and the Standing Committees. It may be that it is in another chapter but the language of the section is wide and applies to all defects or irregularities in any act or proceeding done not affecting the merits of the case. In our opinion the following points should be heard by the Constitution Bench*: (1) Whether the imposition in the present case offends article 276 or 301 of the Constitution ? (2) Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax ? If the answer to these questions or any of them is in the affirmative the appeal will have to be allowed. But if the two questions are answered against the appellants the appeals will fail as all other points have been decided by us against the appellants. The costs will follow the event unless the Bench hearing the reference makes other order. Referred to Constitution Bench final disposal. *The decision of the Constitution Bench is reported infra. [/INST]Under a scheme a Board of Trustees was appointed for administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had granted two villages in Inam. The income of the institution after disbursing the expenses had since long been shared by the descendants in four families in equal shares. The scheme also provided that the surplus income was to be distributed amongst the members of the said four families. One of the descendants died leaving him surviving his wife and two daughters who were obstructed in the performance of the "Urs" by the appellant 's father. The said Muslim female members filed a suit for declaration that they were entitled to enjoy the properties and to manage the Durga, perform the "Urs" festival and receive all incomes, endowments and perquisites thereof once in every eight years according to their turn. The right to a share in the income was denied by the appellant contending that by custom in the family, females were excluded from inheritance and that the claim was barred by the law of limitation and that, in any event, the suit for mere declaration was not maintainable. Held, that a suit for declaration of rights with a consequential relief for injunction was not a suit for declaration simpliciter; it was a suit for declaration with further relief and was not barred under article 120 Of the Indian Limitation Act merely because the contesting defendant did not recognise the right. The period of six years prescribed by article 120 is to be computed from the date when the right to sue accrued and there could be no right to sue until there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequi vocal threat to infringe that right. If under the law a person was entitled to any legitimate right, the mere denial of the right will not set the period of limitation running against the person entitled to such right. 68 Held, further, that on the enactment of the Shariat Act 26 Of 1937, as amended by the ' Madras Act r8 Of 1949, the Muslim Personal Law applies in all cases relating to the matters specified notwithstanding any customer usage to the contrary even at the stage of appeals, if other conditions prescribed under the Act are fulfilled. Kunj Behari Prasadji Purshottam Prasadji vs Keshavld Hiralal. 567, discussed. Syed Roshan Ali vs Mt. Rehmat Bibi and Others, A.I.R. 1943 Lah. 219, disapproved. </s>

<s>[INST] Summarize the judgementAppeal No. 419 of 1973. From the Judgement and Order dated the 22nd December 1972 of the Punjab and Haryana High Court at Chandigarh in Election Petition No. 2 of 1972. Hardyal Hardy, V. P. Chaudhry, Jitendra Sharma and Sharma Chaudhury and Rathi, for the appellant. M. N. Phadke, Bakhtawar Singh, D. N. Misra, and J. B. Dadachanji, for respondent No. 1. The Judgment of P. JAGANMOHAN REDDY and P. K. GOSWAMI, JJ. was delivered by Goswami, J. section N. Dwivedi, J. gave a separate Opinion. GOSWAMI, J. This appeal under section 116A of the Representation of the People Act, 1951 (briefly the Act, is directed against the judgment and order passed by the High Court of Punjab and Haryana in Election Petition No. 2 of 1972 dismissing it on the preliminary ground that the appellant had failed to comply with the mandatory requirement of section 81(3) of the Act inasmuch as the requisite number of spare copies of the petition for the respondents were not filed along With the petition in the High Court. It was further held by the High Court that the said defect could not be cured subsequently even within the period of limitation prescribed for filing the election petition. The High Court further held that the spare copies were actually filed beyond the period of limitation. The facts may be briefly stated. In the general election to the Haryana Legislative Assembly held on March 11, 1972, the appellant and the four respondents were the contesting candidates for the Safidon Assembly Constituency No. 30; two candidates having already withdrawn from the contest. The counting of votes took place on March 12, 1972 and on the following day. The counting disclosed that the first respondent obtained 19570 votes as against 19462 votes secured by the appellant. The first respondent was, therefore, declared elected on March 13,1972. The appellant filed an election petition in the High Court challenging the election of the first respondent on several grounds of corrupt practice within the meaning of section 123 of the Act. It is not necessary for the purpose of this case even to detail these. The election petition was presented by Mr. R. section Mittal, Advocate incharge, to the Deputy Registrar (Judicial) of the High Court on April 18, 1972. The same was ordered to be put up for scrutiny on April 24, 1972. It is admitted that the application was filed on April 18, 1972, without the requisite spare copies and was, therefore, incomplete on the date of presentation. No schedules were also filed along with the petition but that point is not pressed before us by the respondent 's counsel. It is also admitted that the limitation for filing the election petition was up to April 27, 1972. According to the appellant the spare copies were filed with the Superintendent of the Election Branch in the afternoon of April 24, 1972, well within the period ' of limitation. 22 It may be necessary to briefly note the sequence of events for the purpose of appreciating the controversy raised between the parties as noted earlier, the election petition was presented personally by Mr. Mittal without the spare copies on April 18, 1972, and the Deputy Registrar had ordered it to be put up on April 24, 1972, for scrutiny according to the rules of the High Court. When the petition came up for scrutiny before the Deputy Registrar on April 24, 1972, Mr. Mittal appeared and requested for time to remove the defects pointed out by the office. It may be appropriate to extract that particular order : "Present: Shri R. section Mittal, Advocate. He has requested time to remove the defects pointed out by the office. Let it be refixed on 28 4 72, after the defects had been removed as agreed to by the counsel. Sd/. D. D. Khanna 24 4 72" The next order passed by the Deputy Registrar on April 29, 1972, runs as follows: "Shri R. section Mittal has informed me on the phone that he is indisposed and as such the case may not be taken up for scrutiny to day. Put up tomorrow, the 29th April, 1972 for orders. Counsel may be informed. Sd/ D. D. Khanna 28 ' 4 72" . The High Court has observed that it is common case of both side that by the time the case was placed before the Deputy Registrar on April 29, 1972, the spare copies of the petition had been filed by the petitioner and the other defects had also been removed. The final order of scrutiny passed by the Deputy Registrar on April 29, 1972, is in the following terms: "Present Shri R. section Mittal. , Advocate for petitioner. The petition was filed on 18 4 72 and the result in this case was declared on 13 3 72; hence it is within time. The petition is accompanied with the security receipt in the sum of Rs. 2,000/ deposited in this Court before filing of the petition under the rules. The petition was scrutinised and as the defects pointed out on the previous date have been removed, it is now prima facie in order. Issue notice for scrutiny of service for 22nd May, 1972, and for settlement of issues for 26th May, 1972. Sd/ D. D. Khanna 29 4 72". 23 The matter ultimately came up for hearing before the learned single Judge to whom this election petition was assigned. Several preliminary objections were taken by the sole contesting first respondent. The other respondents did not enter appearance ' We are concerned with only one preliminary objection, namely, that the petition was not in conformity with section 81(3) of the Act inasmuch as the requisite spare copies thereof were not enclosed with the petition when it was originally presented on April 18, 1972, and that the election petition was liable to be dismissed. The learned counsel for the appellant, Mr. Hardyal Hardy, has made only the following two submissions before us : (1) The requirement under section 81(3) of Representation of the People Act, 1951 that spare copies of an election petition shall accompany the petition, is directory and not mandatory (2) It is substantial compliance with the said directory provision if the spare copies of an election petition, inst ead of accompanying the petition, are filed before the petition is laid before the Judge for orders or even within the time that may be granted by the Judge for the purpose. Before the High Court both sides examined witnesses. To establish his case, the appellant examined himself as PW 6, the Election Assistant, Shri O. P. Popli (PW 3), Deputy Registrar, Shri D. D. Khanna (PW 4), Shri R. section Mittal, Advocate (PW 5), Shri Adish Chand Jain, Advocate (PW 7), Shri Jai Singh Dhillon, Advocate (PW 9) and Shri Jaswant Rai, Advocate (PW 10). All the Advocates except Shri Mittal were from Jind. Shri Mittal is an Advocate practicing in the High Court. Although the appellant summoned Shri Harsukh Rai Hantroo, Superintendent of the Election Branch, and was present ' in court on 20th July, 1972, when the first four witnesses were also examined, Shri Mittal, who was conducting the case on behalf of the appellant, made a statement before the court that he gave up Shri Harsukh Rai Hantroo 'as unnecessary '. The respondent 's counsel, however, submitted that he should be examined as a court witness and the court ordered for his examination on that very day observing that "in the interest of justice that the Superintendent of the Election Branch who was the only other official working between the Deputy Registrar (Judicial) on the one side and P.W. 3 on the other, should also be examined to clarify the matters so far as possible. " The respondent examined himself and R. W. Ch. Hari Ram, Senior subordinate Judge cum Chief Judicial Magistrate, Jind. The appellant sought to establish before the High Court that the spare copies were submitted on April 24, 1972, by relying upon the endorsement of Shri Mittal, "objections removed, R. section Mittal" (Ext PW 5/1) below the order of the Deputy Registrar of April 24, 1972, which we have already set out. There is no date given by Shri Mittal when her made his endorsement in the order sheet of the Registry. PW 3, who had initially scrutinised the petition and found the defects, was on leave 24 on April, 24, 1972, and the Superintendent (CW 1) was only present. According to Shri Mittal, he. went to the Election Office along with the appellant and his Clerk, Manphool Sharma, and filed these papers at 2 00 P M. on April 24,1972, and made also the above ' endorsement (Ext. PW 511.) Although, however, Shri Mittal was conscious that the papers had to be filed within time to save the defective petition from being dismissed, curiously enough, he did not take the necessary care to get any official endorsement in the order sheet by the Deputy Registrar or even by the Superintendent of the Election Branch to the effect that the documents were filed and defects were removed on that day, namely, on 24th April, 1972, notwithstanding the further fact that he had earlier at 11.00 A.M. on the same day requested the Deputy Registrar for time to remove the defects and the next date was fixed on April 28, 1972. In face of the order of the Deputy Registrar of 24th April, Shri Mittal 's responsibility as counsel was greater than he seemed to have thought. On April 28, 1972, Shri Mittal informed the Deputy Registrar over the phone that he was indisposed and requested for time till the next day which was given. He deposed that he had even informed the Deputy Registrar that scrutiny could be made in his absence since the defects had already been removed. On this particular aspect of the matter, the Deputy Registrar was silent in his evidence and although it was Shri Mittal again who personally examined the Deputy Registrar in court, he never put this question to him with regard to his informing him over the phone about removal of defects on 24th April. Again, from Shri Mittal 's evidence it. appears that, although he was feverish, he actually came to the Election Office on April 28, 1972, in connection with Election case No. 3 of 1972 (Sagar Ram vs Banarsi Das & Ors.) and removed certain defects in that case on that day, namely ' 28th April, 1972 although that case was set down for April, 29, 1972, which date had been fixed by the Deputy Registrar in his presence on April 24, 1972. There is an endorsement in that case by Shri Mittal, this time, with date 28h April, 1972, below the order of the Deputy Registrar dated April 24, 1972, to the effect "objections removed". The records of that case were also called for in the High Court and were also shown to us here. It is pointed out that the endorsement in that case with date and the endorsement in Ext. PW 5/1 of Shri Mittal are with the same pen and ink as is even admitted by Shri Mittal. The respondent, therefore attaches great significance on the omission of the date in Ext. PW 511 and describes the endorsement as a suspicious entry. it is strenuously submitted by the respondent that the papers were not submitted on April 24, 1972, as alleged. Since Shri Mittal asserted in his evidence that he along with the appellant filed the spare copies of the petition in the afternoon of April, 24, 1972, the respondent by examining the Subordinate Judge (RW 1) sought to establish that the appellant as advocate actually appeared in his court at Jind on April, 24, 1972, in a contested civil suit (Kati Ram vs Ram Tirath, etc. Civil Suit No. 422 of 1967 on behalf of the plaintiff where the defendent was cross examined by him. The appellant denied this and stated that his junior, Shri Jai Singh Dhillon (PW 9) actually conducted the case on that day. This point, was also sought to be supported by examining two other Advocates appearing 25 on behalf of the defendant in that suit, namely, Adish Chand Jain (PW 7) and Jaswant Rai (PW 10). It appears that Shri Dhillon even did not file his vakalatnama in that suit and at one stage when he had appeared on behalf of the appellant in that suit, it was recorded in the ,order sheet, as was the practice of that court that he was appearing as proxy for the original counsel. There was, however, no such entry in the order sheet that he appeared on behalf of the appellant on April 24, 1972. From the evidence of RW 1, who deposed from the records of the suit produced in the court and gave some convincing reasons, the High Court was reasonably and, in our opinion, rightly satisfied that the appellant appeared in the court of the subordinate Judge, Jind, on April 24, 1972. The High Court has also rightly held that PWs 7 and 1 0 gave hazy evidence from their memory with regard to the appearance of the appellant in the suit on April 24,1972. The High Court also found several infirmities and contradictions in the evidence of Shri Mittal. It is nobody 's case that if the appellant appeared in the suit at Jind on 24th April he could be present in the Election Branch at Chandigarh at2.00 P.M. on that day. PW3 has correctly deposed that" the words (objections removed ' in the handwriting of Shri R.S. Mittal, Advocate and the signature of Shri R. section Mittal thereunder were not there when he made the endorsement 'informed ' (Ext PW 3/1) on April 28, 1972". Even the Deputy Registrar has admitted in his evidence that the endorsement "objections removed" in the handwriting of and above the signature of Mr. R. section Mittal was not made in his presence. He also stated that "I do not recollect having seen this endorsement at the time I passed my order, dated April 28, 1972". The evidence of the Deputy Registrar consistent with that of PW 3 is rightly preferred by the High Court to the evidence of Shri Mittal, of the appellant and even of the Superintendent of the Election Branch who also deposed from memory. After again carefully examining the evidence of all the witnesses on this point, we have no reason to differ from the conclusion of the High Court that the requisite spare copies of the election petition were not submitted by the appellant on April 24, 1972. We will, therefore, have to decide the first submission of the learned counsel for the appellant on the basis that the spare copies were not filed within the period of limitation. The short question is whether section 81(3) of the Act is mandatory and, if so, whether non compliance with the same will visit the election ' petitioner with the penalty of dismissal of his petition under section 86(1 of the Act. This question was mooted in Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and Others(1) but the Court did not find it necessary to decide the same. Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions [1971] (1) SCR 821. 26 This Court observed in Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur(1) as follows: "The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses 'the word 'shall as in the present case is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory". The Privy Council also in Montreal Street Railway Company Normandin,(2) observed to the same effect: 'The question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. . Now there are two parts in section 81(3). The first part 'provides that "every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition. The second part relates to the manner in which "such copy shall be attested by the petitioner under his own signature to be a true copy of the petition". We are concerned only with the first part in this appeal. Part VI of the Act deals with disputes regarding election. Chapter 11 therein provides for presentation of election petitions while chapter III for trial of election petitions. The right to challenge an election is conferred under the Act which is made in conformity with the provisions of Article 329(B) of the Constitution. It is well settled that it is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions. it is not a common law right and an election petition cannot be equated with a plaint in a civil suit. We may, therefore, immediately read the material sections 80, 81(1) 84(3) and 86(1) which run as follows (1) ; , 975. (2) ; (quoted in 1965 (1) S.C.R. at pages 975 976.) 27 Section 80 No election shall be called in question except by 'an election petition presented in accordance with the provisions of this Part." Section 81(1)"An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within fortyfive days from, but not later than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two date section" Section 81(3)"Every election petition shall be accompanied by as many copies thereof ' as there are respondents mentioned in the petition. , and every such copy shall be attested by the petitioner under his own signature to be a true of the petition". Section 86(1)"The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation : An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause (a) of section 98". Section 86 (1) refers to three sections, namely, section 81, section 82, which deals with parties to the petition and section 117 of the Act providing for security for costs. While dealing with section 117 of the Act this Court spoke through one of us (Reddy, J) in Charan Lal Salhu vs Nandkishore Bhatt and others(1), and held as follows : "The right to challenge an election is a right provided by Article 329(b) of the Constitution of India, which provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The right conferred being a 'statutory right, the terms of that statute had to be (1) ; ,533. 28 complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law 'and must be subject to the limitations imposed by it. In N. P.Ponnuswami vs Returning Officer Namakkal Constituency and Others (1) it was pointed out that strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it". 'Similarly in Krishan Chander vs Ram Lal (2) dealing with section 82(b) of the Act and examining the scheme and the object of the pro ' visions this Court again held the same as mandatory. This Court observed: "The provisions of sec. 82(b) would avoid any such delay as they make obligatory for a person filing an election petition when he makes an allegation of corrupt practice against any candidate to make him a party on pain of the petition being dismissed under section 86(1) if he omits to do. . This then is the rationale underlying the mandatory requirements of section 82(b)". It is true in Ch. Subba Rao vs Member Election Tribunal, Hyderabad(3) reiterating two earlier decisions viz. Kamaraj Nadar vs Kunju Thevar(4) and Murarka vs Roop Sing(5), the Court in ' view of the peculiar facts ,add circumstances of that case and the nature of the defects held ,that section 81(3) was substantially complied with and left open the ,wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh vs Shri Abdul Ghani and another(6), which followed Subba Rao 's case (supra), ,this Court observed : "An exactly similar matter came to be considered by this Court in Ch. Subba Rao vs Member, Election Tribunal (3). In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words "true copy" were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient (1) ; (2) ; ,769. (3) ; (5) ; ,41. 29 to indicate that the copy was attested as true copy, even though the words "true copy" were not written above the signature in the copies. This Court further held that there was substantial compliance with section 81(3) of the Act and the petition could not be dismissed under section 90(3)". Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(6) "the trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons, to be recorded". Again under section 86(7), " every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial". Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence, Act only subject to the Act. Therefore, there is no scope for free play in the application of the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of ' the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial. The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 81(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non compliance with the same will entail dismissal of the election petition under section 86 of the Act. We are, therefore, not required to consider the second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act or the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation 30 provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case, In the result we find no reason to interfere with the decision of the High Court dismissing the election petition. The appeal is dismissed with costs. DWIVEDI, J. I agree with my brethren that the requisite copies of the election petition were not filed in Court within the period of limitation by the appellant. I am constrained also to agree that for this procedural fault his election petition is liable to be dismissed in view of the decision of the Court in Jagat Kishore Prasad Narain Singh vs Rajindra Kumar Poddar and others(1). In that case Hegde J. said: "The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore we have no doubt in our mind that the election petition is liable to be dismissed under s.86 of the Act. " It makes me sad to read this requiem for this election petition. Over a century ago a slip in procedure by a litigant meant denial of justice to him. " Right down to the nineteenth century the choice of the wrong writ involved the loss of the action, even though all the merits were with the plaintiff. "(2) Gradually, however, courts subordinated procedure to the claims of justice. In Ma Shwe Mva vs Maung Mo Maung, (3) Lord Buckmaster said : "All rules of court are nothing but provisions intended to secure proper adminis tration of justice. It is therefore essential that they should be made to serve and be subordinate to that purpose. Speaking in the same vein, Justice Ameer Ali said : "Rules of procedure are not made for the purpose of hindering justice." (See (Raja) Indrajit Pratap Bahadur Sahi vs Amar Singh) (4) Our decision restores that primacy of procedure over justice. It makes section 86(1) a tyrannical master. The rigidity of the rule of precedent ties me to its chains. My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner along with his election petition and the social interest in the purity of election by excluding section 81(3) from the purview of section 96(1) of the Act. Appeal dismissed. V.P.S. (1) [1971] 1 section C. R. 821. (2) Holdsworth: A History of English Law, 9, 248. (3) A.I.R. 1922 P. C. 249 at p. 250. (4) A.I.R. 1923 P. C. 128 at P. 135. [/INST]The match industry in India has grown over the decades. From the point of view of manufacturing techniques the safety match industry comprises of two distinct categories: the machanised sector occupied by a few big manufacturers and the non mechanised sector comprising varying sizes of production units. The Government classified the safety match manufacturers into four categories depending on the quantity turn out and other relevant factors. But the Tariff commission recommended the abolition of sub classification for the purpose of levying excise duty and suggested separate scales of excise duty to be levied for four classes of units, namely, A, D, C and D. Based on these recommendations the slab system of excise duty was abandoned by the Government and the category wise rate was adopted. As a result of the adoption of the differential duty scheme the advantages offered to the 'C ' group went to the 'B ' group which in turn resulted in fall in production. It also generated pseudo C category producers from out of the erstwhile B category which ultimately eliminated C category producers. The Government, therefore, withdrew the tax concession to C category and equated it with B category. The Government of India had from time to time issued notifications under section 37 of the Central Excise and Salt Act, 1944. The notification issued in 1967 levied excise duty on the basis of manufacture of matches of which "any process is ordinarily carried on with the aid of power". As a result of this notification the B and C categories of old were now treated equally. The change in classification of the manufacturers was based on the use of power which in turn had a rational relation to the techniques and processes of production and their ability to bear the burden of the levy. This was done on the basis of recommendations of the Central Excise Re organisation Committee. The High Court refused to strike down the notification. it was contended in this Court that this unsocialistic step had left the small producers in the cold and virtually compelled them to retire from the industry and is thus discriminatory. Dismissing the appeals to this Court, HELD This is a criticism of legislative judgment, not a ground of judicial review. The Court is being invited to compel the legislative and executive wings to classify but from the judicial inspection tower the court may only search for arbitrary and irrational classification and its obverse, namely, capricious uniformity of treatment where a crying dissimilarity exists in reality. Unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. [129 E] The question of classification is primarily for legislative judgment and ordinarily does not become a judicial question. The power to classify being extremely broad and based on diverse considerations of executive pragmatism the judicature cannot rush in where even the legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. [130 E] It is equally well settled that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional. The court cannot strike down a law because it has not made the classification which commends to the court as proper. Nor can the legislative power be said to have been unconstitutionally exercised because within the class a sub classification was reasonable but has not been made. [130 H] 122 In the present cage, a pertinent principle of differentiation, which is visibly linked to production prowess, has been adopted in the broad classification of power users .and manual manufacturers. It is irrational to castigate this basis as unreal. [131 C] K.T. Moopil Nair vs State of Kerala, ; , State of Kerala vs Haji K. Hail Kutty Naha. As Nos 1052 etc. of 1968; judgment dated August 13, 1968 and Khandige Sham Bhat vs The Agricultural Income Tax Officer, ; , 817, followed. </s>

<s>[INST] Summarize the judgement.L.P. (Civil) No. 8896 of 1985. From the Judgment and Order dated 18.12. 1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983. WITH C.M.P. No. 28592 of 1988. 488 R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner. T.S. Krishnamurthy Iyer and Mrs. section Dikshit for the Respondent. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. We have heard both the sides and the matter is being disposed of at the admission stage. This petition is directed against the order of a learned Single Judge of the Madras High Court confirming the order passed by the Subordinate Judge, Nilgiris. The matter arises under the ( 'Act ' for short) and the facts that give rise to the petition are as follows: The testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the eldest son of one John Browne. The testatrix had a daughter of the name of Zoe Enid Browne and she died on 8.10.1977. The respondent claiming to be the beneficiary to the estate of Mary Aline Browne who died on 28.3.1972 under the terms of a will said to have been exe cuted by her on 12.3. 1962 filed an application for letters of Administration with a copy of the will annexed in the Sub Court, Nilgiris. The same is numbered as O.S. No. 23 of 1980. Alongwith the application the respondent also filed an affidavit of an attestor of the Will. In that proceeding, the petitioner and her deceased husband lodged a caveat on the ground that the said Mary Aline Browne did not execute any will and the will propounded by the respondent was a fictitious and forged one, intended to disentitle Zoe Enid Browne, daughter of the testatrix from claiming interest in the estate of her mother. The petitioner also claimed that Zoe Enid Browne executed a will dated 23.6.1975 in favour of the petitioner and that she also executed a gift deed in her favour. The petitioner also claimed that she was a trustee of John Browne Trust and that therefore, the peti tioner has caveatable interest. Thus they opposed the pro bate of the will. Before the Sub Court, several documents were filed. The respondent herein contested the caveat stating that the petitioner herein has no interest in the estate. The learned Subordinate Judge held that the peti tioner is not in any manner related either to Mary Aline Browne or Zoe Enid Browne. The learned Single Judge of the High Court in an elaborate order having considered the rival contentions dismissed the Civil Revision Petition holding that the 489 petitioner cannot claim to be a person who has a caveatable interest in the estate of the deceased testatrix Mary Aline Browne. We are told that the will has subsequently been probated and the letters of Administration have been grant ed. The learned counsel for the petitioner contended that both the courts below have erred in holding that the peti tioner has no caveatable interest. It is submitted that the petitioner is executor and legatee of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a registered gift deed dated 29.3.1974 in respect of the second item of the estate and that the petitioner was also appointed a trustee of John Browne Trust on 11.6.1975 and therefore, in law the petitioner has an interest in the property which is the subject matter of the will and thus have caveatable interest. Under Section 283 of the , the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. Section 284 provides for lodging caveat against grant of probate or administration. Section 285 lays down that no proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered until the notice has been given to the caveator. Section 286 deals with the power of a District Delegate and lays down that he shall not grant probate or letters of administration in any case in which there is "contention" as to the grant, or in which it otherwise appears to him that probate or letters of administration, ought not to be granted in this Court. Under Section 288 where there is contention or where the District Delegate thinks that probate or letters of administration should be refused, the documents shall be returned to the applicant. In the instant case the Sub Judge comes within the meaning of the District Delegate and the necessary powers were conferred on him by a notification which is not in dispute. According to the learned counsel the petitioner duly lodged a caveat against the grant of probate and that both the courts below have not properly appreciated the effect of such a contention and erred in striking off the petitioner 's caveat. In Nabin Chandra Guha vs Nibaran Chandra Biswas and Ors., AIR 1932 Calcutta 734, the Division Bench held that a person who has a real interest in the estate which is or is likely to be prejudicially 490 affected or adversely affected by the will can oppose the grant of probate or letters of administration. In Gourishan kar Chattoraj vs Smt. Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner therein who was related to the deceased through a common ancestor, can be said to have interest in opposing the application for probate. In Shanti Devi Aggarwalla vs Kusum Kumari Sarkar & Ors., , Justice Ranganath Misra, as he then was, held that the vendor legatee is entitled to enter caveat and the purchaser having stepped into the shoes of vendor is also entitled to enter the caveat. In Narayan Sah vs Smt. Davaki, AIR 1978 Patna 220, considering the locus standi of a person to oppose grant, it is held that any interest, however, slight and even a bare possibility of an interest is suffi cient to entitle a person to enter caveat in a probate proceeding. Relying on these decisions the learned counsel urged that the petitioner in the instant case has substantial interest in the estate. The learned counsel for the respond ent did not dispute the legal position. He, however, con tended that there was absolutely no material before the Courts below to substantiate the alleged interest of the petitioner in the estate. It is submitted that the so called will said to have been executed by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline Browne has not been filed. Likewise, the gift deed also was not filed. Coming to the trust of John Browne it is submitted that the trust does not exist and got extinguished. The learned counsel for the respondent further submitted that except mentioning these three aspects in a bare manner no other material was placed before the Court. Having gone through both the orders we are reclined to agree with the learned counsel for the respond ent that the petitioner did not establish her caveatable interest. We have perused the entire order of the trial court in this context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of P.W. 1 that John Browne Trust has come to an end in March, 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions were put forward. The learned Judge observed that from the objections filed by the caveator she desires the Court in the probate proceedings to uphold her title on the strength of a gift deed and the Trust deed. It is observed: "Equally, the petitioner has not placed before the Court 491 the will dated 23.6. 1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12.3. 1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23.6.1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne." Accordingly the learned Judge held that the petitioner has not established that she has a caveatable interest justify ing her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest. Learned counsel, however, submitted that the will exe cuted by Zoe Enid Browne on 23.6.1975 in favour of the petitioner though not filed but was subsequently probated in the year 1989 and the fact that probate is granted can be taken into consideration by this Court as a subsequent happening, as the appeal before this Court, is only a re hearing or the continuation of the matter. Reliance is placed on Section 227 of the which reads thus: "Effect of Probate Probate of a will when granted estab lishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such. " It is submitted that since the will executed by Zoe Enid Browne in favour of the petitioner is probated it must be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all interme diary acts. According to the learned counsel, the effect of such a probate is that the petitioner 's interest in the estate gets established even on the date of entering caveat. We are unable to see any force in this submission. The said probate, admittedly, took place in a court in the Madras City. We do not know whether the citations were issued to all the persons interested. This probate also admittedly was granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceeding. Under these circumstances, exercising our juris diction under Article 136 we do not see that it is expedient to acknowledge this probate proceeding and re open the matter. 492 Lastly an attempt was made to show that the Sub Court has no jurisdiction but we find that there a necessary notification issued by the High Court conferring powers on the Sub Court. We see no force in any one of these submis sions. The learned counsel, however, lastly submitted that the petitioner inspite of having substantial interest in the estate is losing her right, to prove that the alleged will by Miss Zoe Enid Browne is not a genuine one and that it is a fictitious one. We must point out that by granting a probate, the court is not deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Section 263 of the in any one of the cases mentioned therein. But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner 's way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of grant ing of probate. But they cannot deprive his right, if he has any, to invoke Section 263 of the and it is upto the petitioner to satisfy the Court. With these observations, the special leave petition is dismissed. T.N.A. Petition dismissed. [/INST]The respondent, claiming to be the beneficiary to the estate of deceased 'M ' under a will executed by her, filed an application in the Sub Court for Letters of Administra tion. The petitioner lodged a caveat and opposed the probate of the will on the ground that the will propounded by the respondent was a fictitious one intended to disentitle 'Z ', daughter of 'M ', from claiming interest in the estate of her mother 'M '. The petitioner based her caveatable interest on the basis of membership of the Trust, a gift deed and a will executed by 'Z ' which was subsequently probated in her favour. The Subordinate Judge struck off the petitioner 's caveat on the ground that she has no caveatable interest. The petitioner filed a Civil Revision Petition in the High Court and a Single Judge of the High Court confirmed the order of the Subordinate Judge. In the special leave to this Court it was contended on behalf of the petitioner that the courts below have erred (i) in holding that she has no caveatable interest and in striking off her caveat; (ii) that Z 's will in her favour which was subsequently probated established her interest in the estate on the date of entering the caveat. 487 Dismissing the petition, this Court, HELD: 1. By granting a probate the Court does not decide the disputes to the title. A probate granted can be revoked under Section 263 of the . [492C] 1.1 In the instant case the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive her right to invoke section 263 of the Act. [492D] 2. The order of the Trial Court shows that admittedly neither the original nor a copy of the will said to have been executed by 'Z ' was filed. Likewise the registered gift deed or a copy thereof was not filed. It is also evi dent that the Trust has come to an end and the same was not in existence. The Trial Court has considered both the docu mentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Accordingly, it cannot be held that the petitioner has caveatable interest. [490F G; 491C] 3. In the instant case it is not known whether the citations were issued to all the persons interested before the grant of the probate. The probate was also granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceedings. Under these circumstances it is not expedient to acknowledge this probate proceeding and re open the matter. [491 G H] Nabin Chandra Guha vs Nibaren Chandra Biswas and Ors., AIR 1932 Cal. 734; Gourishankar Chattoraj vs Smt. Satyabati Debi, AIR 1931 Cal. 470; Shanti Devi Aggarwala vs Kusum Kumari Sarkar & Ors., and Narayan Sah vs Smt. Devaki, AIR 1978 Patna 220, referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 230 of 1955. Appeal from the judgment and order dated October 5, 1953, of the Patna High Court in M. J. C. No. 128 of 1953. Mahabir Prasad, Advocate General for the State of Bihar and R. C. Prasad, for the appellants. N. C. Chatterjee and P. K. Chatterjee, for the respondent. April 15. The Judgment of the Court was delivered by section K. DAS, J. This appeal relates to a trust known as the Srimati Charusila Trust and the properties appertaining thereto. By its judgment and order dated October 5, 1953, the High Court of Patna has held that the trust in question is a private trust created for the worship of a family idol in which the public are not interested and, therefore, the provisions 604 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, do not apply to it. Accordingly, it allowed an application made to it under article 226 of the Constitution and quashed the proceedings taken against the respondent herein under sections 59 and 70 of the Act. The State of Bihar, the President of the Bihar State Board of Religious Trusts and the Superintendent of the said Board who were respondents to the petition under article 226 are the appellants before us. The trust in question was created by a trust deed executed on March 11, 1938. Srimati Charusila Dasi is the widow of one Akshaya Kumar Ghose of No. 3, Jorabagan Street in Calcutta. She resided at the relevant time in a house known as Charu Niwas at Deoghar in the district of Santhal Parganas in the State of Bihar. In the trust deed she described herself as the settlor who was entitled to and in possession of certain properties described in schedules B, C and D. Schedule B property consisted of three bights and odd of land situate in mohalla Karanibad of Deoghar town together with buildings and structures thereon schedule C property was Charu Niwas, also situate in Karanibad of Deoghar; and schedule D properties consisted of several houses and some land in Calcutta the aggregate value of which was in the neighborhood of Rs. 8,50,000. In a subsequent letter to the Superintendent, Bihar State Board of Religious Trusts, it was stated on behalf of Srimati Charusila Dasi that the total annual income from all the properties was about Rs. 87,839. In the trust deed it was recited that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshipping and performing the " puja " of the said deity; that she had been erecting and constructing a twin temple (jugal mandir) and a Nat Mandir (entrance hall) to be named in memory of her deceased son Dwijendra Nath on the plot of land described in schedule B and was further desirous of installing in one of the two temples the deity Srigopal and such other deity or deities as she might wish to establish during her lifetime and also of installing in 605 the other temple a marble image of Sri Sri Balanand Brahmachari, who was her religious preceptor and who was regarded by his disciples as a divine person. It was further recited in the trust deed that the settlor was also desirous of establishing and founding a hospital at Karanibad for Hindu females to be called Akshaya Kumar Female Hospital in memory of her deceased husband. By the trust deed the settler transferred to the trustees the properties described in schedules B, C and D and the trustees were five in number including Srimati Charusila Dasi and her deceased husband 's adopted son Debi Prasanna Ghosh; the other three trustees were Amarendra Kumar Bose, Tara Shanker Chatterjee and Surendra Nath Burman, but they. were not members of the family of the settlers Amarendra Kumar Bose resigned from the office of trusteeship and was later replaced by Dr. Shailendra Nath Dutt. The trusts imposed under the trust deed were (1) to complete the construction of the two temples and the Nat Mandir at a cost not exceeding three lakhs to be met out of the trust estate and donations, if any ; (2) after the completion of the two temples, to instal or cause to be installed the deity Iswar Srigopal in one of the temples and the marble image of Sri Balanand Brahmachari in the other and to hold a consecration ceremony and a festival in connection therewith ; (3) after the installation ceremonies and festivals mentioned above, to provide for the payment and expenditure of the daily " sheba puja " and periodical festivals each year of the deity Srigopal and such other deities as might be installed at an amount not exceeding the sum of Rs. 13,600 per annum and also to provide for the daily " sheba " of the marble image of Sri Balanand Brahmachari and to celebrate each year in his memory festivals on the occasion of (a) the " Janma tithi " (the anniversary of the installation of the marble image); (b) " Gurupurnima " (full moon in the Bengali month of Ashar) ; and (c) " Tirodhan " (anniversary of the day on which Sri Balanand Brahmachari gave up his body) at a cost not exceeding Rs. 4,500 per annum ; and (4) to establish or cause to be established and run and 606 manage in Deoghar a hospital for Hindu females only to be called Akshaya Kumar Female Hospital and an attached outdoor charitable dispensary for all out patients of any religion or creed whatsoever and pay out of the income for the hospital and the outdoor dispensary an annual sum of Rs. 12,000 or such other sum as might be available and sufficient after meeting the charges and expenditure of the two temples and after paying the allowance of the " shebait " and trustees and members of the temple committee. It was further stated that the work of the establishment of the 'hospital and the out door charitable dispensary should not be taken in hand until the construction of the temples and the installation of the deities mentioned above. It may be here stated that it is the case of both parties before us that the temples and the Nat Mandir have been constructed and the deity and the marble image installed therein; but neither the hospital nor the charitable dispensary has yet been constructed. The powers, functions and duties of the trustees were also mentioned in the deed and, in schedule A, detailed rules were laid down for the holding of annual general meetings, special meetings, and ordinary meetings of the trustees. To these details we shall advert later. On October 27, 1952, the Superintendent, Bihar State Board of Religious Trusts, Patna, sent a notice to Srimati Charusila Dasi under section 59 of the Act asking her to furnish a return in respect of the trust in question. Srimati Charusila Dasi said in reply that the trust in question was a private endowment created for the worship of a family idol in which the public were not interested and therefore the Act did not apply to it. On January 5, 1953, the Superintendent wrote again to Srimati Charusila Dasi informing her that the Board did not consider that the trust was a private trust and so the Act applied to it. There was further correspondence between the solicitor of Srimati Charusila Dasi and the President of the Bihar State Board of Religious Trusts. The correspondence did not, however, carry the matter any further and on February 5, 1953, the President of the State Board of 607 Religious Trusts said in a notice that he had been authorised to assess a fee under section 70 of the Act in respect of the trust. Ultimately, on April 6,1953, Srimati Gharusila Dasi made an application to the High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (a) that the trust in question was a private trust to which the Act did not apply and (b) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under article 19 of the Constitution. This application was contested by the State of Bihar and the Bihar State Board of Religious Trusts, though no affidavit was filed by either of them. On a construction of the trust deed the High Court came to the conclusion that the trust in question was wholly of a private character created for the worship of a family idol in which the public were not interested and in that view of the matter held that the Act and its provisions did not apply to it. Accordingly, the High Court allowed the application and issued a writ in the nature of a writ of certiorari quashing the proceedings under sections 59 and 70 of the Act and a writ in the nature of a writ of prohibition restraining the Bihar State Board of Religious Trusts from taking further proceedings against Srimati Charusila Dasi in respect of the trust in question. The appellants then applied for and obtained a certificate from the High Court that the case fulfilled the requirements of article 133 of the Constitution. The present appeal has been filed in pursuance of that certificate. In connected Civil Appeals numbered 225, 226, 228, 229 and 248 of 1955 (1) judgment has been pronounced to day, and we have given therein a conspectus of the provisions of the Act and have further dealt with the question of the constitutional validity of those provisions in the context of fundamental rights guaranteed by Part III of the Constitution. We have held therein that the provisions of the Act do not take away or (1) Mahant Moti Das vs section P. Saki, see P. 563, ante, 608 abridge any of the rights conferred by that Part. In Civil Appeal No. 343 of 1955 (1) in which also judgment has been pronounced today, we have considered the definition clause in section 2(1) of the Act and come to the conclusion that the Act does not apply to private endowments, and have further explained therein the essential distinction in Hindu law between private and public religious trusts. We do not wish to repeat what we have said in those two decisions; but in the light of the observations made therein, the two questions which fall for decision in this appeal are (I) if on a true construction of the trust deed dated March 11, 1938, the Charusila Trust is a private endowment created for the worship of a family idol in which the public are not interested, as found by the High Court and (2) if the answer to the first question is in the negative, does the Act apply by reason of section 3 thereof to trust properties which are situate outside the State of Bihar. We now proceed to consider and decide these two questions in the order in which we have stated them. On behalf of the appellants it has been contended that on a true construction of the deed of trust, the Charusila Trust must be held to be a public religious trust. The learned Judges of the High Court emphasised that part of the preamble wherein it was stated that the settler had installed a deity called Iswar Srigopal in her house and had been regularly worshiping the said deity, which circumstance (according to them) showed that in its, origin the endowment was a private endowment created for the worship of a family idol in which the public were not interested, and the learned Judges were further of the view that the installation of the said deity in one of the two temples and of the marble image of Sri Balanand Brahmachari in the other temple did not, alter the nature of the endowment which continued to be a expressed the opinion that deed for the establishment of a females and a charitable dispensary for patients of any main objects of the endowment. These findings of the private endowment; they also the provision in the trust hospital for Hindu religion or creed was merely incidental to the other (1) Mahant Ram saroop Dasji vs section e. sahi, see 609 High Court have been seriously and strenuously challenged before us. We say this with respect, but we consider that the learned Judges of the High Court have failed to give to several material clauses of the trust deed their due weight and these have an important bearing on the question in issue. It is true that the settler said that she had installed the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest. That was not, however, what was done. The settlor created the trust for the construction of two temples, in 'one of which was to be installed the deity Iswar Srigopal and in the other the marble image of her preceptor; the trustees consisted of persons three of whom were strangers to the family, though the settlor reserved to herself the power to remove in her absolute discretion any one or more of the trustees for misconduct by reason of change of religion, etc. One of the relevant considerations is if by the trust deed any right of worship has been given to the public or any section of the public answering a particular description. One of the clauses of the trust deed reads : " The ' pronamis ' and perquisites to be offered to the deities and image in the Jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same." This clause to which the learned Judges of the High Court have made no reference shows that the right of worship was not confined to the family of the settlor or founder, but was given to other members of the Hindu public who could offer " pronamis " and perquisites to the deities, and those I pronamis ' and perquisites were to form part of the trust estate. Schedule E of the deed gives details of the festivals and ceremonials to be performed for the deity and the image of Sri Balanand Brahmachari. One of the cere monials is a Jal Chhatra " (free distribution of 77 610 water); another is annakoot " (distribution of food) at the time of Diwali, the approximate expenditure being fixed at Rs. 500. A third ceremony is a "bhandara ", culminating in free distribution of food, of the Mataji of Sri Balanand Brahmachari. These are ceremonies which even if ancillary to "deva sheba", appear prima facie to confer benefit on the general body of worshippers. Though not conclusive by them selves, they have to be considered in the light of the other main provisions of the trust deed. The other festivals which have to be performed as a rule for the deity are such well known festivals as Rath Yatra, Jhulan, Janmastami, Rash and Dol (Holi) in which members of the Hindu community usually take part in large numbers, and the scale of expenses laid down shows that the festivals are to be performed on a large scale so as to enable a large number of persons to take part in them. Even with regard to the special festivals for Sri Balanand Brahmachari on the occasion of the Janmatithi, Gurupurnima and Tirodhan, the provisions of the trust deed contemplate that they are to be performed on a large scale so that other disciples of Sri Balananda Brahmachari may also join in them. Even the constitution of the committee of trustees is such as would show that the endowment is not a mere private endowment. The trust deed says " In filling up a vacancy the trustees shall see that in the Board of Trustees there shall be, if available, one who is the seniormost lineal male descendant of Akshaya Kumar Ghose, the deceased husband of the settlor, who is eligible and willing and capable of acting as a trustee, another who is a trustee of the Sree Sree Balanand Trust created at Deoghar by the said Sree Balanandji Brahmachari Maharaj of sacred memory, and a third who shall be disciple of Sree Sree Balanand order, that is to say, any one of the disciples of the said Sree Sree Balanand Brahmachari Maharaj of sacred memory and his disciples and the disciples of the latter and so on if such a disciple is willing, eligible and capable of acting as a trustee of the said Trust hereby created, provided always that the full number of trustees shall at all times be five in number and no one 611 shall be eligible to be a trustee unless he be adult male, pious, Bengali Hindu and provided also that the shebait of Sree Gopal and the shebait of Sree Baleshwari Devi of the Ashram Deoghar shall under no circumstances be eligible to be a trustee tinder these presents save and except in the case of the settlor who shall so long as she lives to both a trustee and a shebait. " We may here draw attention to the formation of the temple committee as envisaged by the trust deed. It says that the temple committee 'shall consist of the Jugal Mandir shebait for the time being who shall be the ex officio member and president of the committee and the other members who will be appointed or nominated by the trustees shall consist of six pious Hindus who must be residents of Deoghar and of whom at least four shall be Bengalis. If the trust were created for the worship of a family idol, one would not expect provisions of this nature which vest the management of the temple and the " sheba puja " in members of the public outside the family of the settlor. Besides the aforesaid provisions, there is in express terms the imposition of a trust in favour of the public so far as the hospital and the charitable dispensary are concerned. It is necessary to quote here el. 8 of the trust deed. That clause reads: " To establish or cause to be established and run and manage in Deoghar a hospital for Hindu females only to be called in memory of the husband of the settlor, since deceased, the " Akshaya Kumar Female Hospital " and an attached out door Charitable Dispensary for all out patients of any religion or creed whatsoever and out of the said income to pay and/or spend for the objects of the said Hospital and out door Dispensary annually a sum of rupees twelve thousand or such sum as will be available and sufficient after meeting the aforesaid charges and expenditure and after paying the allowance of the shebait and trustees and members of the temple committee and the establishment charges of offices at Calcutta and Deoghar and of the temple establishment hereinafter mentioned provided however that the work of the establishment 612 of the Hospital and out door Charitable Dispensary shall not be taken in hand by the trustees until the construction of the temple and installation of the deities hereinbefore mentioned." The trust deed further states that the female hospital and charitable dispensary shall, so long as the settlor is alive, be located in a house to be rented in Deoghar and after her death shall be shifted to and located in Charu Niwas. Charu Niwas was, however, sold by an order of the Calcutta High Court and the sale proceeds, it is stated, were appropriated towards the satisfaction of the debts and liabilities of the trust estate. One clause of the trust deed relating to the hospital and the charitable dispensary says: " The object of the said Hospital shall be to provide Hindu females with gratuitous medical and surgical and maternity advice and aid and also to admit them as indoor patients in conformity with such rules and regulation as may be made by or with the sanction of the Board of Trustees. The outdoor Charitable Hospital shall be run as the trustees shall provide by rules. In furtherance of these objects, its funds may be expended in subscriptions or contributions to convalescent and other similar institutions and to other special hospitals and in sending patients to and maintaining them in such institution and hospitals provided that the sum so expended in any one year shall not exceed rupees one thousand or such sum as may be fixed by the trustees from time to time. " The learned Judges of the High Court have expressed the view that these provisions for the establishment of a hospital and charitable dispensary are merely incidental or ancillary to the other main objects of the trust. With great respect, we are unable to appreciate how the establishment of a hospital and charitable dispensary of the nature indicated in the trust deed can be said to be ancillary or incidental to other objects of the trust, viz., the construction of two temples and the installation of the deities therein. In clear and unequivocal terms the trust deed imposes a distinct and independent trust in favour of a considerable section of the public for whose benefit the hospital 613 and the charitable dispensary are to be established. It is true that the establishment of the hospital and the charitable dispensary is to be taken in hand after the construction of the temples and the installation of the deities; that circumstance, however, does not make the trust in relation to the hospital and the dispensary any the less important or even merely incidental or ancillary to the other trusts. It merely determines the priority of time when the different trusts created by the deed are to be given effect to. The High Court has placed reliance on the decision in Prasaddas Pal vs Jagannath Pal (1). That was a case in which by the deed of endowment were dedicated certain houses and premises to the " sheba of a family idol established in one of the said houses and for feeding the poor and carrying out other charitable objects; the deity was installed inside one of the residential quarters, the " shebaitship " was confined to the members of the family of the founder, and the feeding of the poor and of students, in case the income of the debutter property increased, was found to be part and parcel of the "debasheba ", and in those circumstances it was held that the feeding of the poor etc. was not an independent charity but incidental to the main purpose of the endowment, viz., the " puja " of the deity. We are unable to hold that the same considerations apply to the trust before us. In Deoki Nandan vs Murlidhar (2) this Court considered the principles of law applicable to a determination of the question whether an endowment is public or private, and observed: " The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a familyidol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But (1) Cal.538. (2) ; , 762. 614 where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers. " One of the facts which was held in that case to indicate that the endowment was public was that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. We do not suggest that such a fact is by itself decisive of the question. The fact that the temple is outside the dwelling house is only a circumstance in favour of it being regarded a public temple, particularly in Madras (except Malabar); there are, however, private temples in Bengal which are built outside the residential houses of donors (see the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by the late Dr. B. K. Mukherjea, 1952 edition, p. 188). In the case before us, the two temples were constructed outside the residential quarters, but that is only one of the relevant circumstances. We must construe the deed of trust with reference to all its clauses and so construed, we have no doubt that the trusts imposed constitute a public endowment. There is one other point to be noticed in this connexion. The deed of trust in the presept case is in the English form and the settlor has transferred the properties to trustees who are to hold them for certain specific purposes of religion and charity; that in our opinion is not decisive but is nevertheless a significant departure from the mode a private religious endowment is commonly made. It is necessary now to refer to a decision of the Calcutta High Court, In re Charusila Dasi (1) relating to this very trust. The question for consideration in that case was the assessment of income tax on the income of this trust estate for the accounting year 193839. The trustees were assessed upon the whole income of the trust. 'The trustees appealed against the assessment and contended that the entire trust was for public, religious and charitable purposes and the whole income (1) I.L.R. 615 fell within cl. (1) of sub section 3 of section 4 of the Income tax Act. The contention of the Commissioner of Income tax was that the trust was no more than a private religious trust and the income did not enure for the public benefit, save with respect to that part of the income which was to be devoted to the hospital and dispensary and to which the latter part of cl. (1) applied. A reference was accordingly made to the High Court and the question framed was whether on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing and maintaining the female hospital was exempt from tax under the provisions of section 4(3) of the Indian Income tax Act. It was pointed out before the High Court that no part of the income of the trust during the accounting year was devoted to the hospital and dispensary and it was conceded that part of the income which would be devoted to those institutions would fall within the exempting clause. It so happens that the learned counsel who argued the case on behalf of the trustees in the Calcutta High Court in the income tax reference is the same counsel who has argued the case before us on behalf of Srimati Charusila Dasi. The contention now is that the trust in its entirety is a private religious trust. Eleven circumstances were referred to by learned counsel in the income tax reference in support of his contention that the entire trust as ascertained from the trust deed was of a public nature. Gentle, J., with whom Ormond, J., agreed, held that on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing an maintaining the female hospital was not exempt from tax under the provisions of section 4(3) of the Indian Income tax Act. This decision, it must be stated at once, does not wholly support the present respondent. So far as the hospital and the dispensary are concerned the trust was held to be a public trust. We are of the view that having regard to the main clauses of the trust deed to which we have already made a reference, the trusts in favour of the deity Iswar Srigopal and the image of Sri Balanand Brahmachari are also of a public nature. 816 One of the points which was emphasised before the Calcutta High Court was the provision with regard to pronamis " and perquisites to be offered to the deity and the image. The High Court said: " This provision does not indicate the creation of a trust in favour of the public, but, on the contrary, it denies the right of any one, which must include any member of the public. having a right to the pronamis. In its terms, the deed negatives that benefit is conferred upon the public ". The aforesaid observations appear to us, with respect, to be based on a misconception. When a member of the public makes an offering to a deity, he does not retain any right to what he has offered. What he offers belongs to the deity. When we talk of the right of members of the public or a considerable section thereof, we refer to the right of worship or the right to make offerings in worship of the deity and not of the right to the offerings after they have been made. With regard to other clauses of the trust deed also we take a view different from that of the learned Judges 'who decided the income tax reference. We have already explained our view in the preceding paragraphs and it is unnecessary to reiterate it. The conclusions at which we have arrived on a construction of the deed of trust is that it creates a religious and charitable trust of a public nature. Now, we proceed to a consideration of the second point. Section 3 of the Act says " This Act shall apply to all religious trusts, whether created before or after the commencement of this Act, any part of the property of which is situated in the State of Bihar ". The argument before us on behalf of the respondent is this. Under article 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Clause (2) of the said Article further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. Article 246 gives the distribution of legislative power; 617 Parliament has exclusive power to make laws with respect to any of the matters enumerated in what has been called the Union List; Parliament as also the legislature of a State have power to make laws with respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List. Item 28 of the Concurrent List is,, charities and charitable institutions, charitable and religious endowments and religious institutions ". Learned counsel for the respondent contends that by reason of the provisions in articles 245 and 246 of the Constitution read with item 28 of the Concurrent List, the Bihar legislature which passed the Act had no power to make a law which has operation outside the State of Bihar; he further contends that under section 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State. It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to a religious institution in Bihar a small part of the property of which is in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar, such as the Calcutta properties in the present case. It is necessary first to determine the extent of the application of the Act with reference to sections 1 (2) and 3 of the Act read with the preamble. The preamble states: " Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts 78 618 It is clear from the preamble that the Act is intended to provide for the better administration of Hindu religious trusts in the State of Bihar. Section 1 (2) states that the Act extends to the whole of the State of Bihar, and section 3 we have quoted earlier. If these two provisions are read in the context of the preamble, they can only mean that the Act applies in cases in which (a) the religious trust or institution is in Bihar and (b) any part of the property of which institution is situated in the State of Bihar. In other words, the aforesaid two conditions must be fulfilled for the application of the Act. It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in operative; see the cases referred to In re the Hindu Women 's Right to Property Act, 1937 and The Hindu Women 's Rights to Property (Amendment) Act, 1936 and In re a Special Reference under section 213 of The Government of India Act, 1935 (1), and the decision of this Court in R. M. D. Chamarbaugwalla vs The Union of India (2). We accordingly hold that section 3 makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within the meaning of the definition clause in section 2 (1) of the Act, which are situate in the State of Bihar and any part of the property of which is in that State. In other words, both conditions must be fulfilled before the Act can apply. If this be the true meaning of section 3 of the Act, we do not think that any of the provisions of the Act have extra territorial application or are beyond the competence and power of the Bihar Legislature. Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, " charities, charitable institutions, charitable and religious endowments and religious institutions " situate in the State of Bihar. The question, therefore, narrows down to, this: in so legislating,, has it power to affect trust (1) , 27 30. (2) 619 property which may be outside Bihar but which appertains to the trust situate in Bihar ? In our opinion, the answer to the question must be in the affirmative. It is to be remembered that with regard, to an interest under a trust the beneficiaries ' only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees ' place of residence: see Dicey 's Conflict of Laws, 7th edition, p. 506. The Act purports to do nothing more. Its aim. , as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust. Therefore, there is really no question of the Act having extraterrestrial operation. In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust. This Court has applied the doctrine of territorial connection or nexus to income tax legislation, sales tax legislation and also to legislation imposing a tax on gambling. In Tata Iron & Steel Co. Ltd. vs State of Bihar (1) the earlier cases were reviewed and it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situate& in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory ; indeed, the religious institution (I) ; 620 and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other. If, therefore, any liability is imposed on the trustees, such liability must affect the trust property It is true that in the Tata Iron & Steel Co. 's case this Court observed : " It is not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation is applicable to all kinds of legislation. It will be enough for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application to income tax legislation but has extended it to sales tax and to tax on gambling. " We do not see any reason why the principles which were followed in The State of Bombay vs R. M. D. Chamarbaugwala (2) should not be followed in the present case. In R. M. D. Chamarbaugwala 's case (2) it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that " all the activities which the gambler is ordinarily expected to undertake" took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra territoriality. We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extra territoriality. We proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance. These are (1) Sirdar Gurdyal Singh vs The Rajah of Faridkote (3) ; (2) Commissioner of Wakfs, Bengal (1) ; (2)[1957] S.C.R. 874. (3) (1894) 21 I.A. 17r, 185. 621 V. Narasingh Chandra Daw and Co. (1); (3) Madangopal Bagla vs Lachmidas (2); and (4) Maharaj Kishore Khanna vs Raja Ram Singh (3 ). Those decisions, in our opinion, are not in point, as they related to different problems altogether. In Sirdar Gurdyal Singh 's case (4) a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkode, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domiciled subject; it was held that the decree was a nullity by international law. The ratio of the decision was thus expressed by Lord Selborne: "Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. . . In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. " The decision in Commissioner of Wakfs, Bengal vs Narasingh Chandra Daw & Co. (1) proceeded on a construction of section 70 of the Bengal Wakf Act which also had a section similar to section 3 of the Act. Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in Assam was under any obligation to send such a notice. It was held that the Bengal Act did not apply to Assam and section 70 stood in a different category from the other sections of the Bengal Act. The ratio of the decision was thus explained : " So far as the status of the Commissioner is concerned, it is conferred by the Bengal Act to operate even outside the province. Therefore, the Commissioner may bring suits under section 72 or section 73 of the Bengal Act in courts outside the province. But section 70 lies (1) I.L.R. (3) A.I.R. 1954 Pat. 164. (2) I.L.R. (4) (1894) 21 I.A. 171, 185. 622 in a different category, because it imposes an obligation on the court to issue notice to the Commissioner in certain circumstances. . Section 70(1) refers to a suit or proceeding in respect of any wakf property, etc., and if this wakf property is situated outside the province, so that the court having jurisdiction over it is also outside the province, then the Act cannot operate beyond its extent, that is to say outside the province of Bengal. " The decision in Madangopal Bagla vs Lachmidas and the decision in Maharaj Kishore Khanna vs Raja Ram Singh (1) both related to the interpretation of some of the provisions of the United Provinces Encumbered Estates Act (U. P. Act 25 of 1934). In the former case the limited question for decision was if the decreeholder under a decree of the Original side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Banaras, under the United Provinces Encumbered Estates Act, 1934. The answer given was that the decreeholder was not so precluded and the decision proceeded on a construction of section 18 of the United Provinces Encumbered Estates Act, 1934, read with sections 7, 13 and 14(7) of that Act. It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended,, as indicated by section 7, only over debts enforceable through the courts within the province and the word " creditor " in section 10 must be limited to those of them who would have to enforce their rights through such courts alone. In the Patna case the question for decision was if section 14(7) of the U. P. Encumbered Estates Act, 1934, should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature. It was held that the decree passed by the Special Judge of Banaras had not the effect of a decree of a civil court outside the territorial limits of the United Provinces and the Sub (1) I.L.R. (2) A.I.R. 1954 Pat. 164. 623 ordinate Judge of Purnea in Bihar had no jurisdiction to execute such a decree or to direct that the properties of a judgment debtor in Purnea should be attach, ed in execution of the decree. As we have said earlier, these decisions relate to an altogether different problem, namely, the proper construction of certain sections of the Bengal Wakf Act or of the United Provinces Encumbered Estates Act. The problem before us is of a more general nature and the aforesaid decisions are no authorities for the solution of that problem. There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided on March 18, 1953). A similar problem arose in that case where the head of a math situate in Banaras made an application under article 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950, on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to that math. In the course of the hearing of the petition the learned Attorney General who appeared for the State of Bom bay made it clear that there was no intention on the part of the Government of Bombay or the Charity Commissioner to apply the provisions of the Bombay Act to any math or religious institution situated outside the State territory. The learned Attorney General submitted that the Bombay Act could be made applicable, if at all, to any place of religious instruction or worship which is appurtenant to the math and is actually within the State territory. In view of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of extra territoriality. 624 The result is that the appeal succeeds and is allowed with costs, the judgment and order of the High Court dated October 5, 1953, are set aside and the petition of Srimati Charusila Dasi must stand dismissed with costs. Appeal allowed. [/INST]In 1949 the appellant framed a scheme called " Tonnage Pro duction Bonus Scheme " whereunder the workmen were to get 13 days ' basic wages by way of bonus on a production Of 30,000 tons and thereafter an additional one day 's basic wage for every 46o tons produced upto a maximum Of 36,000. The scheme was accepted by the workmen. In 1953 the workmen raised industrial disputes claiming profit bonus for the years 1950 51 and 1951 52 in addition to the production bonus and asked for revision of the production bonus scheme. The Industrial Tribunal, to which the disputes were referred, rejected both the claims. On appeal, the Appellate Tribunal awarded profit bonus equal to one month 's basic wage for 1951 52 but dismissed the claim for 1950 51 as having been made too late. It revised the production bonus scheme by providing for i day 's basic wage for each increase Of 460 tons over 30,000 tons uPtO 36,000 tons and for 2 days, basic wage for each increase Of 46o tons in excess Of 36,000 tons. The appellant contended (i) that the Tribunal had no jurisdiction to vary the production bonus scheme ; (ii) that such a scheme could only be varied by agreement ; (iii) that no proper grounds had been made out for varying the scheme ; (iv) that profit bonus could not be awarded in addition ' to production bonus ; (v) that the production bonus in this case was really profit bonus ; and (vi) that there was no available surplus out of which profit bonus could be paid. Held, that the Tribunal had jurisdiction to revise the pro duction bonus scheme. Payment of production bonus was payment of further emoluments depending not upon extra profits, but, upon extra production, as an incentive to the workmen to put in more than the standard performance. Though it was discretionary with the appellants to introduce the scheme, once the scheme was introduced and put into operation, it became a term of employment of the workmen and any dispute with respect to such term of employment was an industrial dispute which could properly be referred to a Tribunal. The power of the Tribunal in considering the scheme 1013 was not confined to the question of mala fides etc. of the employer 's action but it had power to vary the terms of the scheme if circumstances justified it. There was no justification for interfering with the scheme upto a production Of 36,000 tons in view of the agreement between the parties. But the scheme did not provide for production above 36,000 tons and as such there was no agreement with respect to this, and as the production had gone up beyond 36,000 tons it was necessary to provide for production bonus beyond this quantity. There were two reasons for increase in the rates of payment of production bonus, viz., (i) the intensification of the efforts of the workmen in increasing production, and (ii) the progressive going down of the labour cost of production per ton as production increased. The rates had to be increased progressively with production. Consequently, for each 46o tons increase in production the proper rates for payment of production bonus would be 1 1/4, 1 3/4 and 2 days ' basic wages respectively or production between. 36,000 and 42,000 tons, 42,000 and 48,000 tons, 48,000 and 54,000 tons and 54,000 and 60,000 tons. The " Tonnage Production Bonus Scheme " introduced by the appellant was in fact also a production bonus scheme and not a profit bonus scheme. The fact that one of the terms of the scheme empowered the directors to cancel or reduce the payment of production bonus in case the gross profit was not sufficient to meet fixed dividends, interest, depreciation charges, taxation and 10% dividend to ordinary shareholders did not make it a profit bonus scheme as the circumstances mentioned are not the same that have to be taken into account in arriving at the available surplus according to the Full Bench formula. Nor was the position altered by the clause in the scheme which empowered the appellant to cancel or modify the scheme in case Government enforced by legislation any scheme for bonus or profit sharing as this did not mean that the scheme itself was for profit sharing or profit bonus. The other clauses of the scheme clearly indicated that it was for production bonus. If there was an available surplus of profits according to the Full Bench Formula the workmen were entitled to get profit bonus in addition to the production bonus. Mathuradas Kanji vs Labour Appellate Tribunal, A.I.R. , distinguished. Held further, that there was available surplus of profits and the profit bonus equal to one month 's basic wages was properly awarded by the Appellate Tribunal for [1951 52. The claim for deduction for rehabilitation was made on a wrong basis by the appellant. In order to arrive at a realistic figure for rehabilitation the total block should be divided into three heads : (i) land,(ii)buildings, railway sidings and things of that nature which had a. much longer life and where no imports were needed, and (iii)machinery. In the case of land no replacement was necessary and no provision need be made for rehabilitation. In the 1014 case of buildings etc. the multiplier would be smaller while the divisor would be larger. Machinery bad again to be sub divided according to when it was purchased so as to arrive at correct multipliers and divisors. As machinery purchased before the last war stood on one footing there would be a pre 1939 block. The second block may be of machinery purchased during the war and the third of that purchased after the war. The last two were not rigid divisions. In the circumstances of the present case, the proper multipliers for these three bocks would be 4, 2 and 1 respectively. As both Tribunals had accepted 10 as the divisor that may be accepted as. the divisor for the three blocks. Calculating on that basis the rehabilitation costs did not wipe out the entire gross profits as claimed by the appellants and there was an available surplus out of which profit bonus could be paid. The clerical staff, budli workers and temporary workers were not entitled to claim attendance bonus as they were differ ent from other workmen. </s>

<s>[INST] Summarize the judgementAppeal No. 225 of 1965. Appeal by special leave from the judgment and order dated September 6, 1962 of the Madhya Pradesh High Court in Misc. Civil Case No. 108 of 1958. I.N. Shroff, for the appellant. S.T. Desai, section N. Andley, Rameshwar Nath, P. L. Vohra, and Mahinder Narain, for the respondent. 225 The Judgment of the Court was dilevered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh in a reference made to it under section 46 of the Gwalior War Profits Tax Ordinance, Samvat 2001 hereinafter called the Ordinance. Three questions were referred to the High Court by the War Profits Tax Commissioner, but we are only concerned with question No. 1, which reads as follows: "Whether the dividend income of Rs. 11,09,332/received from the Binod Mills was chargeable under the War Profits Tax?" When the reference was first heard by the High Court three contentions were raised by M/s Binodram Balchand of Ujjain, respondents before us, hereinafter referred to as the assessees. They were: "(1) The assessees did not deal in shares and their holdings in the Binod Mills Limited were purely in the nature of investments, having no connections with their business as defined in Section 2(5) read with Rule 1 of Schedule 1, of the Gwalior War Profits Tax Ordinance. The business of the secretaries, treasurers and agents of the Binod Mills Limited, which was carried on by them did not require any holding of the shares of the company and was not dependent on their investment in the said company. (2)The dividend income accrued or arose from the profits of the Binod Mills Limited, and as the Ordinance applied to the business carried on by this company, the dividends were excluded under the explanation to Rule 3(1) of Schedule 1. (3)The dividend income should be considered as income of the full accounting period, i.e., from Diwali of 1943 to Diwali of 1944 and should be apportioned on that basis". The High Court by its judgment dated April 19, 1957, accepted the first contention of the assessees and accordingly answered the question in their favour. It did not deal with contentions Nos. 2 and 3. The Commissioner appealed to this Court and this Court by its judgment dated December 20, 1961, set aside the judgment of the High Court and answered the first contention in relation to question No. I against the assessees and remanded the case to the High Court for the consideration of the other two contentions with reference to that question. The High Court on remand accepted the second contention of the assessees and answered question No. 1, set out above, in favour of the assessees. The Commissioner having obtained special leave, the appeal is now before us for disposal. 226 A few facts may be given in order to appreciate the point that has. been argued before us. The assessees were, at the relevant time, the Managing Agents of the Binod Mills Ltd., Ujjain, which was a private limited company carrying on the business of manufacturing and selling textile goods in 1944. The Ruler of the Gwalior State promulgated the Gwalior War Profits Tax Ordinance, Samvat 2001, for the purpose of imposing tax on excess profits arising out of certain businesses. The Ordinance came into force on July 1, 1944, and applied originally to the counting period falling within the period commencing on July 1, 1944, and ending on June 30, 1945. By virtue of a notification the period was extended to June 30, 1946. The assessees carried on the Managing Agency business during the aforesaid period in Gwalior State and being liable to be assessed to war profits submitted a return for the period commencing from July 1, 1944, to October 16, 1944. It appears that Rs. 11,09,332/ was received by the assessees on July 5, 1944, on account of dividend on shares of the Binod Mills for the year 1943. The assessees inter alia contended before the War Profits Tax Officer that this sum was not liable to be charged. The War Profits Tax Officer, however, by order dated July 9, 1951, in.; clouded this sum of Rs. 11,09,132/ in the taxable income and his view was upheld in appeal by the Appellate Assistant Commissioner and the Commissioner. As stated above, the Commissioner, at the instance of the assessees, referred three questions, including the one with which we are concerned, to the High Court. It appears that before the High Court the learned counsel for the Commissioner did not seriously dispute the contention of the assessees that the dividend income which the assessees had received was exempted by the Explanation to r. 3 of Schedule 1 of the Ordinance. The rule as it existed originally was as follows: "3(1) Income received from investments shall be included in the profits of a business liable to the War Profits Tax, unless it is proved to satisfaction of the War Profits Tax Officer that the investments have no connec tion whatever with the business. (2)In the case of business which consists wholly or mainly in the dealing in or handling of investments, income received from investments shall be deemed to be profits of that business, and in the case of a business, a specific part only of which consists in dealing in investments, the income received from investments held for the purposes of that part of the business shall be deemed to be profits of that part of the business". 227 By section 2 of the Gwalior War Profits Tax (Amendment) Ordi nance, Samvat 2002 hereinafter referred to as, Ordinance 2002, r. 3 of the First Schedule to the Ordinance was amended as follows: "In rule 3(2) of the First Schedule to Ordinance the following shall be added, namely: Explanation "The income from investments to be included in the profits of the business under the provisions of this rule shall be computed exclusive of all income received by way of dividends or distribution of profits from a company carrying on a business to the whole of which the Section of the Ordinance imposing the War Profits Tax applies", This Ordinance was promulgated on February 28, 1946. Another Ordinance called the Gwalior War Profits Tax (Amendment) Ordinance, Samvat 2004 hereinafter referred to as Ordinance 2004 was promulgated on September 6, 1947. This Ordinance amended the Explanation to sub rule (2) of rule 3 of Schedule 1 as follows "In the explanation of sub rule (2) of Rule 3 of Schedule 1 of the Gwalior War Profits Tax Ordinance, Samvat 2001 a comma is added after the words "from a company carrying on a business" and before the words "to the whole of which" and shall be always deemed to be there from the date from which the said Ordinance came into force". The High Court felt no difficulty in holding that the expla nation applied, and that on its plain terms the dividend income which the assessees received from the profits of Binod Mills Ltd. was not liable to be included in the taxable income. The High Court observed: "The language of the explanation is very plain, and it means that if income is received by way of dividends or profits from a company carrying on a business, to the whole of which the section of the Ordinance imposing the War Profits Tax applies, then the income has to be excluded in the assessment to War Profits Tax of the assessee receiving that income. The object of the explanation is clearly to avoid double taxation. Here it is not disputed that the dividend income which the assessee received was from the profits of the Binod Mills Limited and the Mills were subject to the burden of the War Profits Tax under the Ordinance. That being so, the explanation in terms applies to the case, and the assessee is entitled to claim that the dividend income of Rs. 11,09,332/ received from Binod Mills could not 228 be included in the computation of its profits for the purposes of War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance. Learned Advocate General appearing for the State did not dispute this position". Mr. Shroff, the learned counsel for the Commissioner, contends, first, that the explanation was not in existence at the relevant time, and, therefore, cannot be taken into consideration; secondly, that the explanation is an explanation to r. 3(2) and not to r. 3(1) and, therefore, cannot be used to explain r. 3(1). Mr. Shroff complains that the High Court was wrong in thinking that the explanation formed part of Ordinance 2001, as it was originally promulgated. The High Court seems to have been under this impression because in the order refusing leave to appeal to this Court the High Court observed: "There was no omission at all on our part to consider the question whether the explanation was prospective or not. Indeed, this question was never raised by the learned Advocate General, appearing for the Department and it was rightly not raised as the Explanation was not added subsequent to the promulgation of the Ordinance and the very basis of the assessment of the income of the assessee was that rule 3 of Schedule 1 of the Ordinance together with the Explanation applied to the income received by the assessee during the period from 1st July 1944 to 16th October 1944". It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance. But even if it was added subsequently, in our opinion, the explanation applies to the computation of the profits of the chargeable accounting period July 1, 1944 to October 16, 1944. If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective becomes clear. Apart from Ordinance 2004, it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing authorities after February 28, 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to section 2 of Ordinance 2004 because by deeming that the comma shall be deemed to be there from the date from which the Ordinance came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to 229 accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July 1, 1944 to October 16, 1944. Regarding the second contention, Mr. Shroff says that Ordi nance 2002 expressly provides that the explanation shall be added in r. 3(2) of the First Schedule to the Ordinance. He further says that this explanation is referred in Ordinance 2004 as "explanation of sub rule (2) of rule 3 of Schedule 1". There is no doubt that Ordinance 2002 did purport to add this explanation to r. 3(2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to r. 3(2) but to r. 3(1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under r. 3(1) and r. 3(2). Secondly, there is no reason why any distinction should have been made between investments mentioned in r. 3(1) and investments mentioned in r. 3(2). Rule 3(1) is general and deals with all investments from profits of all businesses and would include investments mentioned in r. 3(2). Rule 3(2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in r. 3(1) and income from investments mentioned in r. 3(2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in rule 3(2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below r. 3(2). In the result we agree with the High Court that the answer to the question referred should be in the negative. The appeal accordingly fails and is dismissed with costs. Appeal dismissed. [/INST]The appellants through their karta had an open mutual and current account with the respondent bank. They borrowed from the bank and also paid monies into it. On March 1, 1947 a sum of Rs. 15,956/7 was due to the bankfrom the appellants. In order to pay off that amount a mortgage deedwas executed by the appellants in favour of the bank. Under that deedfurther amounts up to a limit of Rs. 16,000 could be advanced to the appellants against the security mentioned therein. According to the bank, under the said provision of the deed a further sum of Rs. 10,000 was advanced to the appellants on March19, 1947.On April 9, 1953 the bank filed a suit for the recovery ofsums due to it from the appellants and the suit was claimed to be withinthe period of limitation on the allegation that on November 24, 1949, the appellants had repaid a sum of Rs. 100 to the bank. The appellants denied that they had borrowed Rs. 10,000 as alleged or that they had repaid Rs. 100. The trial court decreed the suit of the bank and the High Court upheld the decree. The appellants then came to this Court by special leave. The questions that fell for determination were (i) whether by producing a copy of the entry relating to the loan of Rs. 10,000 in these account books the bank had proved the said loan, (ii) whether the suit was within time. HELD : (i) In view of section 34 of the Evidence Act the appellants could not be saddled with liability for the sum of Rs. 10,000 said to have been advanced to them on March 19. 1947 on the basis of a mere entry in the account. Section 34 says that such entry alone shall not be suffi cient evidence and so some independent evidence had to be given by the bank to show that this sum was advanced. Such evidence not having been given the claim could not be upheld. [903 C] (ii)Section 4 of the Bankers ' Books Evidence Act (18 of 1891) certainly gives a special privilege to banks and allows certified copies of their accounts to be produced by them and those certified copies become prima facie evidence of the existence of the original entries in the accounts and are admitted as evidence of matters, transactions, and accounts therein. But such admission is only where and to the extent as the original entry itself would be admissible by law and not further or otherwise. Original entries alone under section 34 of the Evidence Act would not be sufficient to charge any person with liability and as such, copies produced under section 4 of the Bankers ' Books Evidence Act could not charge any person with liability. [902 C E] (iii)The suit was clearly within time insofar as the liability for sale under the mortgage deed was concerned as it was filed within 12 years of the execution of the mortgage as allowed by article 138 of the Limitation Act of 1908. [903 G] 899 As to the personal liability under the deed that was beyond time as the suit was filed more than six years after the execution of the mortgage allowed by article 116. The entry of the payment of Rs. 100 in the accounts also did, not help the bank in this behalf. That entry was of no value under section 19 or section 20 of the Limitation Act for neither a writing signed by the appellants nor an acknowledgement of payment in the handwriting of the appellants or in a writing signed by them had been proved. Nor did article 85 help the bank in fixing personal, responsibility on the appellants as the time of three years allowed by that Article had ended before the filing of the suit. [903 G H] </s>

<s>[INST] Summarize the judgementivil Appeal No. 5736 of 1985 & C.A. No. 508/1986. From the Judgment and Order dated 14.8.1985 of the Bombay High Court in Civil Writ Petition No. 3420 of 1983. N.N. Keswani and R.N. Keswani for the Appellants. G. Ramaswamy Additional Solicitor General, S.K. Dhola kia, Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi for the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. The case involved in these two appeals, with leave, seems indeed straight forward enough, but the High Court of Bombay made it, as we venture to think, unsatisfactory and in a sense against judicial pro priety and decorum. The facts which are of central importance may be stated as follows. On June 19, 1982, the Government of Maharashtra issued a draft notification under sec. 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 (the "Act"). The draft notification proposed the formation of what is termed as "Kalyan Corporation" (the "Corporation"). It suggested the merging of Municipal areas of Kalyan, Ambarnath, Domoivali and Ulhasnagar. Against this proposal, there were many objections and representations from persons, companies and the authorities. Ambarnath and Ulhasnagar Municipal bodies and also some of the residents therein submitted their represen 409 tations. They objected to the merger of their municipal areas into the Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are predominant. In 1947, they were the victims of partition of the country. Being uprooted from their home land, they have since settled down at Ulhasnagar. They have formed union or federation called the All India Sindhi Panchayat Federation. It is interested in having a separate identity for Ulhasnagar. The Federation challenged the said draft notification by a writ petition before the Bombay High Court. The writ petition was not disposed of on merits. It was permitted to be withdrawn on an assurance given by the Government. The Government gave the assurance that the representatives of the Federation would be given an opportunity of being heard before taking a final decision. As per the assurance, they were given personal hearing on their representations. The others who have filed similar representations were not heard. But their objections or representations were duly considered. Thereupon, the Govern ment decided to exclude Ulhasnagar from the proposed Corpo ration. Accordingly, a notification under sec. 3(2) of the Act was issued. The Corporation was thus constituted without Ulhasnagar. That was the only alteration made in the propos al earlier notified. All other areas indicated in the draft notification were merged in the Corporation. The residents of Ambarnath Municipal areas were not satisfied. They were, perhaps, more worried by the exclusion of Ulhasnagar than the inclusion of their own area. They moved the High Court under Article 226 of the Constitution challenging the notification issued under sec. 3(2) of the Act. They inter alia, contended that the action of the Government affording an opportunity of being heard only to the Federation and not to other objectors was contrary to Article 14. It was a hostile discrimination to hear only one of the objectors. They asserted that the establishment of the Corporation without Ulhasnagar Municipal area, having regard to the geographical contiguity was unintelligible and incomprehensible. It was arbitrary and opposed to the object of the Act. They also contended that there ought to have been a fresh draft notification after taking a decision to exclude Ulhasnagar from the proposal. With similar conten tions and for the same relief, there was another writ peti tion before the High Court. It was filed by the National Rayon Corporation Limited which is a company located within the Municipal limits of Ambarnath. The Sindhi Panchayat Federation was not a party to the writ petitions. It was, however, allowed as an intervener. Some other persons who were interested in the outcome of the writ petitions were 410 also permitted to intervene in the proceedings. They sup ported the stand taken by the Government which was the main respondent in the writ petitions. The State in its counter affidavit resisted the peti tioners ' claim raising several grounds. The first point to be noted in this context is this: "That the formation of Municipal Corporation under sec. 3 of the Act is an extension of the legislative process and, therefore, sec. 3 is nothing but a piece of conditional legisla tion. The principles of natural justice will not apply to such legislative function nor it could be imparted into it even by necessary implication. The petitioners have not chal lenged the validity of the sub section (2) of sec. 8 of the Act and even otherwise the said validity has been upheld by a Division Bench of this Court (Shah and Deshpande, J J) in writ petition No. 706 A of 1982 (The Village Panchayat Chikalthane and Anr. vs The State of Maharashtra and Anr. decided on 23/24 Decem ber, 1982. Therefore, it cannot be said that the notification issued in exercise of the said legislative power is vitiated by non complaince with the principles of natural justice. The conditions laid down by sec. 3 are fully complied with; a preliminary notifi cation was issued as contemplated by sub section (4) of sec. 3 of the Act; the objec tions and suggestions made by the various citizens and persons were duly considered by the State Government and thereafter the final notification was issued. In the very nature of things there is bound to be difference and variance between the preliminary notification and the final notification. Only because the Ulhasnagar Municipal Council is excluded from the final notification, it cannot be said that there was any major departure from the prelim inary notification or it was necessary to issue a preliminary notification over again before the final notification was issued in that behalf. " The second factual point to be noted is this: "Due to partition of India in 1947, the Sindhi people have been uprooted from their homeland and with hard labour they have settled them selves in different parts of the country. One can appreciate their feelings about their anxi 411 ety to maintain their separate entity. If such a large part is forcibly included in the Corporation ignoring their sentiments and wishes, it may not result in smooth working of the proposed Corporation which is necessary for proper development. It is, therefore, desirable to constitute the new Kalyan Corpo ration without including Ulhasnagar for the time being." The High Court was not impressed with the above reason ings. The High Court said that the decision to exclude Ulhasnagar was taken by the Government abruptly and in an irrational manner. The decision was arbitrary and against the purpose of the Act. On the legality of the procedure followed by the Government, the High Court said: "Once that decision was taken, it was obliga tory on the part of the Government to recon sider the proposal as a whole so far as the rest of the areas are concerned." Reference was also made to the report of the "Sathe Commission" to fortify the conclusion that Ulhasnagar could not have been isolated. The "Sathe Commission" was a one man Commission appointed by the State Government to enquire and report on the establishment of new Municipal Corporations. The Commission in its report among others, seems to have indicated that Kalyan, Ulhasnagar and Ambarnath are one contiguous stretch of territory with a length of about 8 kms. from North West to South East. The High Court then made some general observations as to the purpose for which Municipal Corporations should be constituted went on: "It was the avowed policy after independence to change the socio economic map of the vil lage and town. A corporate life can only be ensured if there is a corporate conscience and an attitude to live together. City is an epitome of the social world where all belts of civilization interest along its avenues. A Municipal Corporation is . . in nature, where people belonging to different castes, creeds, religious and language want to live with each other. Town planning cannot be denominational or fractional. It is not a museum of human beings otherwise Harijan Bastis, Mominpures and such other Mohallas will have to be preserved to maintain its separate identity and the socio 412 economic map of the village or city will never change. It cannot be forgotten that we are heading towards a global village. By saying this, we do not want to belittle the achieve ments of sacrifice of the Sindhi Community. However, that is not very relevant for decid ing the question of the establishment of a Municipal Corporation. Its main object is to ensure better municipal government of the city. It appears that Government was also aware of this and this seems to be the reason why the decision "for the time being is perti nent and clearly indicates that the Government wanted to reconsider the issue at a later stage. However, unfortunately till today Government has not taken any decision in that behalf. " The High Court, however, felt that it was not necessary to quash the notification establishing the Corporation. This is how the conclusion was reached: "It will not be fair to quash the notification as a whole and unsettle the Municipal Adminis tration. In our view, that is also not neces sary since from the affidavit of the Govern ment, it is clear that the decision taken in that behalf was tentative, i.e., for the time being and it is not all time permanent deci sion. Under sub section (3) of sec. 3 of the act, the State Government has power to exclude or include any area specified in the notifica tion issued so far as Ambarnath Town is con cerned, reconsideration of the present case of the whole matter was absolutely necessary when the decision to exclude the Ulhasnagar Munici pal Council from the proposed Municipal Corpo ration, ,though tentative in nature, was taken. " Finally, the operative portion of the Order was put in the following terms: "Therefore, without setting aside the final notification, we direct the State Government to reconsider the proposal under sub sec. (3) of sec. 3 of the Bombay Provincial Municipal Corporations Act either to exclude or include any area, within a period of six months from today. The writ of mandamus to be issued accordingly. It is needless to say that after the necessary steps are taken under sec. 3(3) of the Act, the State Government shall make the necessary 413 amends in the notification issued. XXX XXX XXX XXX XXX XXX XXX XXX "In the result, therefore, the rule is made partly absolute and the State Government is directed to exercise its power under sec. 3 sub sec. (3) of the Act in accordance with law within a period of six months. It is needless to say that the petitioners will be entitled to raise objections and make their suggestions in that behalf after a notification under sub sec (3) read with sub sec (4) of sec. 3 of the Act is issued. Since the popular local self Government is not in existence in any of the Municipal Councils or even in the newly established municipal corporation and having regard to the peculiar facts and circumstances of the case, in our view, this is a fit case where the petitioners of these two petitions and All India Sindhi Panchayat Federation should be given a reasonable opportunity of being heard before any final decision in the matter is taken. " Against the judgment of the High Court, the State Gov ernment has not preferred any appeal. The Kalyan City Corpo ration though vitally concerned with the matter, has also not appealed to this Court. The present appeals are only by those who were impleaded as interveners in the writ peti tions. We have heard counsel for all parties and gave our best attention to the questions raised by the appellants. Counsel for the appellants reiterated the stand taken by the Govern ment before the High Court. He urged that the State has a wide discretion in the selection of areas for constituting the Corporation and the Court cannot interfere with such discretion. The Court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to constitute Municipal Corporations under sec. 3 of the Act is legislative in character. It is an extension of legislative process for which rules of natural justice have no application. He said that the Gov ernment in the instant case has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary according to the counsel to go through that exercise again as the High Court has suggested. 414 The other limb of the argument of counsel for the appel lants relates to the manner in which the High Court disposed of the matter. it was said that a decision of this Court has been disregarded and a binding decision of a co ordinate Bench of the same Court has been ignored. The grievance of the appellants ' counsel, in our opin ion, is not wholly unjustified. At the beginning of the judgment, we have said that the High Court rendered the judgment in a sense against the judicial propriety and decorum. We were not happy to make that observation, but constrained to say so in the premise and background of the case. It may be noted that the result of the writ petitions before the High Court turns on the nature and scope of the power conferred on the Government under sec. 3 of the Act. A Division Bench of the High Court has taken the view that that power is in the nature of legislative process. That judgment was rendered on 23/24 December, 1982, by a Bench consisting of Shah and Deshpande, JJ. It was in writ peti tion No. 706 A of 1982 The Village Panchayat Chikalthana and Another vs The State of Maharashtra and Another, In that case, the challenge was to the validity of sec. 3(2) of the Act on the ground that it suffers from the vice of excessive delegation for want of guidelines for the exercise of power. Repelling the contention, it was held that sec. 3 is in the nature of a conditional legislation and, therefore, laying down the policy or guidelines to exercise the power was unnecessary. It was emphasized that the exercise of power under sec. 3(2) is conditioned by only two requirements, viz., (1) previous publication as contemplated by sub sec. (4) of sec. 3 of the Act, (2) issuance of a notification by the Government after such previous publication. Once the Government publishes such a notification, the legislation becomes complete and the other provisions of the Act are ipso facto attracted to the Corporation so constituted. This was the view taken by the High Court in Chikalthane case. To reach that conclusion, the learned judges relied upon the decision of this Court in Tulsipur Sugar Company, case ; The attention of the High Court in the present case was drawn to the decision in Chikalthane, case. Counsel for the State and interveners seemed to have argued that the present case really fell fairly and squarely within what was said there. They were indeed on terra firma since the decision in Chikalthane case was a clear authority against every conten tion raised by the petitioners. Faced with this predicament, counsel for the petitioners urged before the High Court that their case should be referred to a larger Bench to reconsid er the deci 415 sion m Chikalthane, case. But learned Judges, (Dharmadhikari and Kantharia, J J) did not heed to that submission. They neither referred the case to a larger Bench nor followed the view taken in the Chikalthane, case. It was not as if they did not comprehend the issue to be determined and the prin ciple to be applied. They were very much aware of it when they remarked: "In our opinion, once it is accepted that this is a piece of conditional legislation, then it will have to be held that the principle of natural justice would not apply to such a case as held by the Division Bench of this Court in village Panchayat Chikalthane 's case nor it could be said that because under a mistaken notice the Federation was heard, the denial of such a right to the petitioners will amount to hostile discrimination within the contempla tion of Article 14 of the Constitution of India. " After referring to these simple legal principles, it is unfortunate that the issue at stake was little explored. The key question raised in the case was side tracked and a new strategy to interfere with the decision of the Government was devised. The learned Judges directed the Government to publish again a draft notification for reconsideration of the matter. They gave liberty to the writ petitioners and the interveners to submit their representations. They ob served that "this is a fit case where the parties should be given a reasonable opportunity of being heard. " They did not quash the impugned notification, but told the Government to make necessary changes in the light of fresh consideration. All these directions were issued after recording a positive finding that the exclusion of Ulhasnagar from the Corpora tion was arbitrary and irrational. The net result of it is that there is now no discretion with the Government to keep Ulhasnagar away from the Corporation. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal pro priety demand that where a learned single judge or a Divi sion Bench does not agree with the decision of a Bench of co ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. 416 Deprecating this kind of tendency of some judges, Das Gupta, J., in Mahadeolal Kanodia vs The Administrator Gener al of West Bengal, AIR 1960 SC 926 said (at 941): "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin 's case, 1954 Cal 119) was cited before the learned Judges who heard the present appeal they took on themselves to say that the previ ous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co ordinate jurisdiction in a High Court start overruling one another 's decision. " The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan and Anr. vs Ram Chand and Anr. , ; was not quite different (at 1773): "It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single, Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single judge, but should refer the matter to a Divi sion Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is rounded on healthy principles of judi cial decorum and propriety. It is to be re gretted that the learned Judges departed from this traditional way in the present case and choose to examine the question himself. " The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench Union of India vs Raghubir Singh, ; learned Chief Justice said (at 766): "The doctrine of binding precedent has the merit of pro 417 moting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transac tions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the deci sions of a Court. " Cardozo propounded a similar thought with more emphasis: "1 am not to mar the symmetry of the legal structure by the introduction of inconsisten cies and irrelevancies and artifical excep tions unless for some sufficient reason, which will commonly by some consideration of history or custom or .policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another" (The Nature of the Judicial Process by Benjamin N. Cardozo p.33) In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more pre dictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute. Judge learned Hand has referred to the tendency of some judges "who win the game by sweeping all the chessmen off the table". (The Spirit of Liberty by Alfred A. Knopf, New York (1953) p. 131). This is indeed to be deprecated. It is needless to state that the judgment of superior courts and Tribunals must be written only after deep travail and posi tive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not 418 with inconsistencies. There could be waxing and wanning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevita ble in our developing country. In Raghubir Singh, case, learned Chief Justice Pathak had this to say ; at 767: "Legal compulsions cannot be limited by exist ing legal propositions, because, there will always be, beyond the frontiers of the exist ing law, new areas inviting judicial scrutiny and judicial choice making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness" but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters. And he continued: The universe of problems presented for judi cial choicemaking at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of past judicial choice may be large. Yet the areas newly presented for still further choice, because of changing social, economic and technological conditions are far from inconsiderable. It has also to be remembered, that many occasions for new options arise by the mere fact that no generation looks out on the world from quite the same vantage point as its predecessor, nor for that matter with the same perception. A different vantage point or a different quality of perception often re veals the need for choicemaking where formerly no alternatives, and no problems at all, were perceived. " Holmes tells us: "The truth is, that the law is always ap proaching, and never reaching, consistency. It is forever adopting new principles from life at the end, and it always retains old ones from history at the other, which have not yet been absorbed or 419 sloughed off. It will become entirely consist ent only when it ceases to grow." (Holmes the Common Law, p. 36 (1881). Apart from that the judges with profound responsibility could iII afford to take stolid satisfaction of a single postulate past or present in any case. We think, it was Cicero who said about someone "He saw life clearly and he saw it whole"; The judges have to have a little bit of that in every case while construing and applying the law. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legisla tive process indeed. No judicial duty is laid on the Govern ment in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with,, then, the Court could say no more. In the present case the Government did publish the proposal by a draft notification and also con sidered the representations received. It was only thereaf ter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Section 3(2). The Court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for theirs. " Equally, the rule issued by the High Court to hear the parties is untenable. The Government in the exercise of its powers under Section 3 is not subject to the rules of natu ral justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hear ing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law. Megarry, J., in Bates vs Lord Hailsham of St. Marylebone and Ors., while dealing with the legisla tive process under Section 56 of the Solicitors Act, 1957 said (at 1378): "In the present case, the committee in ques tion has an entirely different function: it is legislative rather than 420 administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers. The order, when made, will lay down the remu neration for solicitors generally and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the sphere of the so called quasi judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of repre sentative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legisla tion and considering objections (see, for example, the Factories Act 1961 Schedule 4), I do not know of any implied right to be con sulted or make objections, or any principle upon which the courts may enjoin the legisla tive process at the suit of those who contend that insufficient time for consultation and consideration has been given. I accept that the fact that the order will take the form of a statutory instrument does not per se make it immune from attack, whether by injunction or otherwise; but what is important is not its form but its nature, which is plainly legisla tive. " There are equally clear authorities on this point from this Court. The case in Tvlsipur Sugar Co. Ltd. vs The Notified Area Committee, Tulsipur, ; was indeed a hard case. But then, this Court did not make a bad law. There a notification dated August 22, 1955 was issued under Section 3 of the U.P. Town Area covering the petition er 's factory. Consequently, the octroi was levied on goods brought by the factory management into the limits of Town Area Committee. The Company questioned the validity of that notification. The case pleaded was that the company had no opportunity to make representation regarding the advisabili ty of extending the limits of the Town Area Committee. Venkataramiah, J., as the present learned Chief Justice then was, while rejecting the contention observed (111920): 421 "The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the applica tion of the rest of provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non judicial authori ty, Prof. S.A. De Smith in Judicial Review of Administrative Action (third edition) observes at page 163: "However, the analytical classi fication of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordi nate legislative instrument need not be pre ceded by notice or hearing unless the parent Act so provides." In Baldev Singh vs State of Himachal Pradesh, a similar question arose for consideration. An attempt was made to constitute a notified area as provided under Section 256 of the Himachal Pradesh Municipal Act, 1968, by including portions of the four villages for such purposes. The residents of the villages who were mostly agriculturists challenged the validity of the notification before the High Court on the ground that they had no oppor tunity to have their say against that notification. The High Court summarily dismissed the writ petition. In the appeal before this Court, it was argued that the extension of notified area over the Gram Panchayat limits would involve civil consequences and therefore, it was necessary that persons who would be affected thereby ought to be given an opportunity of being heard. Ranganath Misra, J., did not accept that contention, but clarified (at 515): "We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after con sidering the view of the residents. Denial of such opportunity is not in consonance with the scheme of the rule of law governing our socie ty. We must clarify that the hearing contem plated is not required to be oral and can be by inviting objections and disposing them of in a fair way. " The principles and precedents thus enjoin us not to support the 422 view taken by the High Court. We may only observe that the Government is expected to act and must act in a way which would make it consistent with the good administration. It is they, and no one else who must pass judgment on this mat ter. We must, therefore, leave it to the Government. In the result and for the reasons stated, we allow the appeals and set aside the judgment of the High Court. In the circumstances of the case, we make no order as to costs. Y. Lal Appeals allowed. [/INST]The petitioners were arrested on March 23, 1988 and produced before the Chief Metropolitan Magistrate, who remanded them to jail custody. During the pendency of peti tioner 's application for bail, the prosecution filed charge sheet on June 23, 1988 for offences under Section 21, 23 and 29 of the . Thereafter, on the petitioners ' application for bail under Section 167(2) Cr. P.C. on the ground that the charge sheet was filed after the expiry of ninety days of their arrest, the Magistrate enlarged them on bail. On an application, under sec. 439(2) read with Section 482 of the Cr. P.C., filed by the prosecution for cancella tion of the bail, stating that since two of the accused were earlier absconding, the investigation in the case could not be completed within the time frame, the High court cancelled the bail order. Hence, the special leave applications by the petitioners. On the question: whether the discretion exercised by the High Court was legally sustainable and whether the accused had a special right to remain on bail merely because they had been enlarged under Proviso (a) to Section 167(2) of the Code, 378 Dismissing the Special Leave Petitions, HELD: An order for release on bail under proviso (a) to Section 167(2) of the Code of Civil Procedure may appropri ately be termed as on order on default. Indeed, it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period. The right to bail under the provision is absolute. It is a legislative command and not Court 's discretion. If the investing agency fails to file chargesheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. At that stage, merits of the case are not to be exam ined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the ac cused to furnish the requisite bail bonds. [381E G] The accused cannot claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled under Sections 437(5) or 439(2) of the Code. [381H] In the instant case, the offences alleged are of serious nature and the discretion exercised by the High Court does not call for any interference. [382A] Raghubir Singh vs State of Bihar, ; , referred to. </s>

<s>[INST] Summarize the judgementppeal No. 652 of 1964, Appeal from the judgment and order dated May 7, 1963 of the Rajasthan High Court in D.B. Civil Misc. Writ Petition No. 157 of 1962. G.C. Kasliwal, Advocate General for Rajasthan. K.K. Jain, for the appellants. M.D. Bhargava and B.D. Sharma, for the respondent. The Judgment of the Court was delivered by Siki, J. This appeal by certificate of fitness granted by the Rajasthan High Court is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by the Sales Tax Officer, Jodhpur City, in so far as it levied sales tax on the turnover of Rs. 23,92,252.75 np. The respondent, M/s Shiv Ratan G. Mohatta, which is a partnership firm having its head office at Jodhpur, hereinafter referred to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed to sales tax in respect of the above turnover because, firstly, the assessee was not a dealer within section 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXlX of 1954) with respect to this turnover, and secondly, because the sales were in the course if import within article 286 (1)(b) of the Constitution. Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within section 2(f) of the Rajasthan Sales Tax Act, without adverting to the second ground. The facts on which the assessee had relied upon to substantiate his second ground were these. The Zeal Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured cement in Pakistan. The Pakistan Industrial Development Corporation, hereinafter called the Pakistan Corporation, entered into an agreement with M/s Milkhiram and Sons (P) Ltd., Bombay, for the export of cement manufactured in Pakistan to India. The State Trading Corporation of India entered into an agreement with the said M/s Milkhiram & Sons for the purchase of, inter alia, 35,000 long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan. The State Trading Corporation appointed the assessee as its agent, broadly speaking, to look after the import and the sale of the imported cement. The modus operandi adopted by the assessee for the sale of the cement was as follows. It would obtain from a buyer in Rajasthan an order under an agreement, a sample of which is on the record 73 The agreement fixed the price and the terms of supply. By one clause the assessee disclaimed any responsibility regarding delay in dispatch and non receipt of consignment or any loss, damage or shortage in transit due to any reason whatsoever. The agreement further provided that "all claims for loss, damage or shortage, etc., during transit will lie with the carriers and our payments are not to be delayed on any such account whatsoever. " It was further provided in the agreement that the dues were payable in advance in full, or 90% in advance and the balance within 15 days of billing plus sales tax and other local taxes. Clause 6 of the agreement is in the following terms: "A Post Card Loading Advice will be sent to you by the Factory as soon as the wagons are loaded in respect of your orders, and it will be your responsibility to arrange for unloading the consignment timely according to Railway Rules. Ourselves. and the suppliers will not be responsible for demurrage etc. on any account whatsoever. If the consignment reaches earlier than the Railway Receipt, it is the responsibility of buyer to arrange for and get the delivery timely against indemnity bond etc. All the Railway Receipts etc. will be sent by registered post by the Suppliers in Pakistan.". After this agreement had been entered into, the assessee would send despatch instructions to the Pakistan Corporation. These instructions indicated the name of the buyer consignee and the destination, and provided that the railway receipt and D/A should be sent by registered post to the consignee. These instructions were sent with a covering letter to the Pakistan Corporation requesting that these instructions be passed on to the Pakistan Factory for necessary action. The Pakistan Corporation would then forward these despatch instructions to the Zeal Pak Cement Factory. Later, the Pakistan Factory would advise the consignee that they had "consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice. " The State Bank of India, Karachi, would endorse the railway receipt in favour of the consignee and send it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt. The Sales Tax Officer did set out most of these facts and the contentions of the assessee in the assessment order but disposed of the case with the following observations: "All the above went to prove that the assessee was an Agent of the non resident dealer for the supplies in the State. The Assessee was an importer and hence submitted an application to the Custom Authority for the same. It booked orders and issued sale bills. Under the terms of an agreement of appointment of Agent, sale was to be effec 74 ted by the Agent. Again while obtaining orders from the buyers under condition 5 Sales Tax was to be paid by the buyers to the assessee. Thus to all intents and purposes the assessee is a dealer who is liable for payment of Sales Tax to the State. They have rightly collected this amount from the buying dealers and retained with them. This should come to the Government.". We can find no discussion in the order on the question raised by the assessee that the sales were made in the course of import within article 286(1)(b) of the Constitution. The assessee then filed a petition under article 226 of the Constitution and raised two contentions before the High Court, namely, (1) that the Sales Tax Officer failed to consider the impact and the effect of article 286(1)(b) on the facts of the case, and (2) that the Sales Tax Officer illegally held that the petitioner for all intents and purposes was a dealer liable to pay sales tax. The State raised an objection to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but the High Court overruled this objection on the ground that "the contention of the petitioner is that in view of article 286(1)(b) of the Constitution, the respondent had no jurisdiction to assess the petitioner to pay the sales tax on the sale of goods in the course of the import into the territory of India", and that even if there was no total lack of jurisdiction in assessing the petitioner to pay sales tax. the principle enunciated in A.V. Venkateswarn v Ram chand Sobharaj Wadhwani (1) applied, and it was a case which should not be dismissed in litnine. Then the High Court proceeded to deal with the merits of the case. It first dealt with the question whether the petitioner was a dealer within the meaning of section 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said section 2(f). Then it proceeded to deal with the question whether the sales had taken place in the course of import. The High Court held that in the circumstances of the case these sales had not occasioned the movement of goods but it was the first sale made by M/s Milkhiram and Sons to the State Trading Corporation which had occasioned the movement of goods. Secondly, it held that in the circumstances of the case "the property in goods after the delivery had been taken by the petitioner on behalf of the State Trading Corporation passed to the State Trading Corporation and simultaneously to the ultimate buyers. Thus the property in the (1) ; 75 goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in course of import. In view of the authority of their Lordships of the Supreme Court in J. V. Gokal and Co. (Private) Ltd. vs The Assistant Collector of Sales Tax (Inspection) & Others, ( '), it must be taken that the sale took place when the goods were in the course of the import and they should not be liable to the payment of the Sales Tax by virtue of article 286(1)(b).". In the result, the High Court quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute. The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from the High Court filed this appeal. The learned Advocate General has raised two points before us: First, on the facts of this case the High Court should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import within article 286(1)(b). Regarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxability of the turnover depended on where the property passed in each consignment. This involved consideration of various facts and, according to him.the crucial facts had not been brought on the record by the assessee on whom lay the onus to establish that the sales were in the course of import. He says that the assessee should have proved that each railway receipt was endorsed by the State Bank of India, Karachi, to the buyer before each consignment crossed the frontier. We are of the opinion that the High Court should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under article 226. It was not the object of article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is so. does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act? Surely not. There must be something more in a case to warrant the entertainment of a petition under article 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. But as the High Court chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage. (1)[1960] 2 S.C.R. 852. 76 Regarding the second point, the learned Advocate General .argues that the onus was on the assessee to bring his case within article 286(1)(b) of the Constitution in respect of the sales to the various consignees. He says that there is no evidence on record as to when the State Bank of India endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and without this evidence it cannot be said that the title to the goods passed to the ultimate buyer at Khokhropar or in the course of import. He further urges that it would have to be investigated in each case as to when the State Bank endorsed the railway receipt and when the goods crossed the customs barrier. He says that it is not contested that the ultimate buyer took delivery of goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him. it is only when the delivery was taken by the buyer in Rajasthan that the title passed. By that time, according to him, the course of import had ceased. We do not think it necessary to consider the various arguments addressed by the learned Advocate General or the soundness of the view of the High Court on this point, because we are of the opinion that the High Court should not have gone into this question on the facts of this case. The Sales Tax Officer had not dealt with the question at all, and it is not the function of the High Court under article 226, in taxing matters, to constitute itself into an original authority or an appellate authority to determine questions relating to the taxability of a particular turnover. The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law. Under the Rajasthan Sales Tax Act, and other Sales Tax Acts, the facts have to be found by the assessing authorities. If any facts are not found by the Sales Tax Officer, they would be found by the appellate authority. and it is not the function of a High Court to find facts. The High Court should not encourage the tendency on the part of the assesses to rush to the High Court after an assessment order is made. It is only in very exceptional circumstances that the High Court should entertain petitions under article 226 of the Constitution in respect of taxing matters after an assessment order has been made. It is true, as said by this Court in A. V. Venkateswarn vs Ramchand Sobharaj Wadhwani(1) that it would not be .desirable to lay down inflexible rules which should be applied with rigidity in every case, but even so when the question of taxability depends upon a precise determination of facts and some of the facts are in dispute or missing, the High Court should decline to decide such questions. It is true that at times the assessee alleges some additional facts not found in the assessment order and the State, after a fresh investigation, admits these facts, but in a petition under article (1)[1962] 1 S.C.R. 753. 77 226 where the prayer is for quashing an assessment order, the High Court is necessarily confined to the facts as stated in the order or appearing on the record of the case. In this case, as already indicated, we have come to the conclusion that the High Court should not have decided disputed questions of fact, but should merely have quashed the assessment order on the ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. Accordingly. we allow the appeal, set aside the order of the High Court, quash the assessment order in so far as it relates to the. turnover of Rs. 23,92.252.75 up, and remit the case to the Sales Tax Officer to decide the case in accordance with law. He will find all the facts necessary for the determination of the question and come to an independent conclusion untrammeled by the views expressed by the High Court. We may make it clear that we are not expressing any view whether the finding of the High Court that the property in the goods passed simultaneously at Khokhropar to the State Trading Corporation and the ultimate buyer is correct or not. There would be no order as to costs in this appeal. Appeal allowed. [/INST]The Sales Tax Officer rejected the assessed 's claim that he was not liable to be assessed to sales tax in respect of certain .sales of cement imported from Pakistan because (i) he was not a. dealer within the meaning of s.2(f) of the Rajas than Act 29 of 1954, and (ii) the sales in question were in the course of the import within the meaning of article 286(1)(b) of the Constitution. In the order of assessment, there was no discussion of the question of applicability of article 286(1) (b). The assessee therefore filed a petition under article 226 challenging the assessment order on the grounds taken before the Sales Tax Officer and also claiming that the latter had failed to consider the impact and effect of article 286(1)(b)on the facts of the case. The State objected to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but the High Court overruled this objection for the reason, inter alia, that the petitioner had challenged the appellant 's jurisdiction to assess him to. sales tax in view of the. provisions of article 286(1) (b). Upon dealing with the merits of the case, the High Court held that on the facts of the case it was clear that the sales in question took place when the goods were in the course of import and therefore, by virtue of article 286(1)(b) were not liable to sales tax. The court therefore quashed the order of assessment. On appeal to this Court, it was contended on behalf of the State that the High Court should have refused to entertain the petition as many of the crucial facts had not been brought on the record by the respondent, and further more, it was not established that the cement was sold in the course of import into India. HELD: The High Court should not have decided the disputed questions of fact, but should merely have quashed the assessment order on the. ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. [77 B] OBITER: The High Court should have declined to entertain the petition, as in this case there were no exceptional circumstances to warrant the exercise of the extraordinary jurisdiction under article 226. It was not the object of article 226 to convert High Courts into original or appellate assessing authorities whenever the assessee chose to attack an assessment order on the ground that a sale was made in the course of import and was therefore exempt from tax. The fact that an assessee might have to deposit sales tax when filing an appeal could not in every case justify his bypassing the remedies provided by the Sales Tax Act. There must be something more in a case to warrant the entertainment of a petition under article 226, something going to the root of the jurisdiction of the Sales 72 Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. [75 G, H] A.V. Venkatesweran vs Ramchand Sobhraj Wadwani, A.I.R. , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 81 of 1990. From the Judgment and Order dated 7.3.1989 of the Rajas than High Court in S.B. Civil (Misc.) Second Appeal No. 2 of 1976. Guman Mal Lodha, Sushil K. Jain, B.P. Aggarwal and Sudhanshu Atreya for the Appellant. C.M. Lodha and Surya Kant for the Respondents. The Judgment of the Court was delivered by K. RAMASWAMY, J. 1. Heard learned counsel for both sides and special leave is granted. This appeal by the auction purchaser is against the judgment of the High Court of Rajasthan, Jaipur Bench, dated March 7, 1989 made in S.B. Civil (Misc.) Second Appeal No. 2/76. The facts, though many, relevant to dispose of the appeal are stated as under: 3. S/Shri Gokulchand and Rekhchand, Respondents Nos. 5 and 6 herein, defendants 2 and 3 in O.S. No. 37/59 on the file of the Court of the Civil Judge, Jhalawar, obtained in another suit, an ex parte 27 money decree to recover Rs.5,557.10 against Bal Mukund and brought to sale the joint family house which is the disputed property in the present litigation. Mohanlal, his minor son and his widow filed objections under Order 21 Rule 58 CPC which were rejected. The sale was confirmed on October 24, 1958, and sale certificate was issued on November 28, 1958. The respondents filed O.S. No. 37/59 under Order 21 Rule 63 CPC to set aside the sale. The Trial Court by its judgment dated December 5, 1961 dismissed the suit, but on appeal, the District Judge at Kotah allowed the appeal and decreed the suit for resti tution of the plaint schedule property since possession had in the meantime, been taken. Second Appeal No. 91/65 filed in the High Court was abated as a whole since Mohanlal died on May 1, 1968 and his legal representatives being Respond ents Nos. 2 to 4 were not brought on record by substitution. When execution was levied for restitution, though the appel lant raised several objections to its executability but challenge was confined to two grounds, namely, the decree passed by the District Judge is a nullity as he lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit admittedly valued at Rs.15,000 under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, and it was entertainable by the High Court, and sec ondly, the decree being a declaratory one was incapable of execution, notwithstanding the direction for restitution of the plaint scheduled property. The Executing Court dismissed the objection petition, but on appeal the order of the Executing Court was reversed. On further appeal the High Court allowed the same, set aside the appellate order and directed the appellate court to transfer it to the appropri ate Civil Court for execution as per law. As against it the present appeal has been filed. The contention that the decree passed by the District Judge, Kotah, on appeal is a nullity is devoid of substance. It is true that under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, the District Court is empowered to entertain an appeal against the decree of a Trial Court of the value only upto Rs.10,000 and by operation of sub section (b) of section 21(1) the appeal would lie only to the High Court as the value of the suit was admittedly Rs.15,000. But this is a suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the decree of Rs.5,557.10 to be invalid and does not bind them. In Radha Kunwar vs Reoti Singh, AIR 19 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC it was held that the value of the amount of decree is the value for the purpose of the suit under Order 21 Rule 63 CPC. Therefore, merely because the valuation of the pro 28 perty sold in execution had been put at Rs.15,000, the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be that valuation. Accordingly, we hold that Section 21(1)(a) of the Ordinance is attracted. Therefore, the decree of the Appellate Court in C.A. No. 157/61 on the file of the Court of the District Judge, Kotah, is not a nullity. The only other question is whether the plaintiff is entitled to restitution of the property. Once the decree which was the subject matter of execution was declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai, the execution sale would not bind them and as a result they became entitled to restitution. The decree does admit tedly contain a direction for restitution. Therefore, it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house. Accordingly, the decree is executable. To a question put by the Court whether in view of the long pendency of the proceedings it could not be equitable that the appellant should pay the proper value of the house or deliver possession thereof, the learned counsel for the appellant fairly stated that whatever amount be fixed by this Court, the appellant is prepared to pay the same. The learned counsel for the respondents on the other hand rely ing upon the statement made in the objections dated April 28, 1973, filed by the appellant maintained that he had then claimed only a sum of Rs.11,900 in all, and the appellant would be entitled only for that amount. On the other hand, the appellant having been in possession and enjoyment of the property, the respondents are entitled to the mesene prof its. On the facts and in the circumstances and in considera tion of the fact that the litigation is pending for a long period, we are of the view that justice and equity would be met if we direct the District Court, Kotah, to assess the prevailing market value of the plaint scheduled house and the site as on date and direct the appellant to pay the value thereof within a time to be fixed by him. If the respondents have not drawn the balance of the sale amount in the original suit filed by S/Shri Gokulchand and Rekhchand and after full satisfaction was recorded, the appellant is entitled to withdraw the said balance amount. In case the amount was already withdrawn, the appellant is entitled to deduct the same from the amount fixed by the District Court. In case the appellant fails to pay the value of the property assessed by the District Court as directed above, there shall be a direction for restitution of the plaint scheduled property as per the decree of the Appellate Court in C.A. No. 157/61. The appeal is accordingly allowed, but, in the circumstances, without costs. P.S. S Appeal allowed. [/INST]Respondent No. 1 obtained a money decree against the original appellant, who has been substituted by legal heirs, on the basis of a promissory note. The appellant appealed to the High Court but could not get the decree stayed because he was unable to furnish security for the decretal amount. The decree was put into execution notwithstanding the pend ency of the appeal, and two items of appellant 's properties were purchased by respondent No. 2 at the court sale. Later, the High Court allowed the appellant 's appeal on merits and set aside the decree. Thereupon, the appellant moved the executing court for setting aside the court sale inter alia on the ground that (1) the sale was vitiated by material irregularities and properties were deliberately sold for under value; (2) the sale was collusive between decree holder and the auction purchaser; the latter, being the sambandhi of the former, was just a name lender; and (3) since the decree had been reversed, the sale should be nullified and restitution should be ordered. The executing court rejected these con tentions and held that subsequent reversal of the decree could not be depended upon since the sale had been confirmed in favour of the auction purchaser who was a stranger to the litigation. The learned Single Judge of the High Court, however, allowed the appellant 's appeal and held inter alia that (a) the sale was vitiated by material irregularities resulting in fetching a low price; and (b) the decree holder and auction purchaser were close relatives and the sale seemed to be collusive. But on appeal, the Division Bench reversed the decision of the learned Single Judge. Allowing the appeal, this Court, HELD: (1) A distinction is maintained between the decree holder who purchases the property in execution of his own decree which is 79 afterwards modified or reversed, and an auction purchaser who is not party to the decree. [84E] (2) Where the purchaser is a decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser. The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree, and could retain the property since he is a bona fide purchaser. This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed. He is thus distinguished from an eonomine party to the litigation. [84E F] Janak Raj vs Gurdial Singh, ; and Sardar Govindrao Mahadik vs Devi Sahai, ; , referred to. (3) The true question in each case is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution. If it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser. Indeed, 'he is evidently a speculative purchaser and in that respect he is in no better position than the decree holder purchas er. [85B C] Chhota Nagpur Banking Association vs C.T.M. Smith, [1943] Patna 325 and Jamnomal Gurdinomal vs Gopaldas, AIR 1924 Sind 101, referred to. R. Raghavachari vs M.A. Pekkiri Mahomed Rowther, AIR 1917 Mad 250, overruled. (4) Similarly, the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also be protected to retain the property if the decree is subse quently reversed. [86B] (5) The Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishment and penal ties. The laws of procedure should be so construed as to render justice wherever reasonably possible. [87A B] Rodger vs The Comptoir De Paris, [1869 71] LR 3 PC. 465 at 475 80 and A.R. Antulay vs R.S. Nayak, ; , referred to. (6) The evidence on record is sufficient to hold that the auction purchaser was not a bona fide purchaser. The auction sale in his favour must, therefore, fall for resti tution. The Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree. [87D E] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 5415 of 1985 etc. From the Order dated 7.1.1985 of the Presiding officer, Labour Court, Amritsar in Application No. 547 of 1979. 619 Jitendera Sharma, P. Gaur, D.K. Garg, K.K. Mohan and R.C. Kaushik for the Appellants. S.C. Mohanta, Mahabir Singh and C.M. Nayar for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Each of these appeals is by special leave and is directed against the Award made in different disputes by the Labour Court. The common justification for ignoring the High Court and approaching this Court directly by way of special leave, according to Mr. Jitendra Sharma for each of the appellants, is that there are a couple of Full Bench decisions of the Punjab and Haryana High Court holding that the Irrigation Department of the State Government of Punjab is not an 'industry ' and no useful purpose would have been served by routing the matters through the High Court as the Full Bench decision would have been followed. The appellant in Civil Appeal No. 5415 of 1985 was a Foreman in the Mechanical Construction Division under the Irrigation Department and had applied under Section 33 C 2 of the , (hereinafter referred to as 'the ') before the Labour Court for 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, Rohtak under the Irrigation Department of Haryana State. His services were terminated and thereupon he approached the Labour Court disputing the validity of the said order. 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 by different orders made in each of these cases upheld the objection and declined relief to the employees. The common question in these appeals, therefore, is as to whether the Irrigation Department of either Government is an 'industry '. The definition of 'industry ' occurring in Section 2 of the has now to be seen. The defines 'industry ' in Section 2(J) to mean: 620 "any business, trade undertaking, manufacturer or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen. " By Section 2(c) of the Amending (46 of 1982), this definition has been amended but the amendment has not yet been brought into force. The amended definition of "industry" is as follows: "Industry means any systematic activity carried on by co operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit, and includes (a) any activity of the Dock Labour Board established under Section 5A of the ; (b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include (1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one, Explanation: For the purposes of this sub clause, 'agricultural operation ' does not include any activity carried on in a 621 plantation as defined in clause (f) of Section 2 of the ; or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisation wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a cooperative society or a club or any other like body of individuals, if the number of persons employed by the cooperative society, club or other like body of individuals in relation to such activity is less than ten;" Since the amended statutory definition is not yet in force, the parent definition and judicial pronouncements have to be referred to for finding the law. The field is covered by pronouncements of this Court and it is not necessary to go beyond these precedents. In case the Irrigation Department is accepted to be "industry", there is 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) respectively. A five Judge Bench in D.N. Banerji vs P.R. Mukherjee & Ors., 622 ; considered the scope of the definition of industry. Chandrashekhara Aiyer, J. speaking for the Court stated: "It is therefore incumbent on us to ascertain what the statute means by industry and industrial dispute, leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps, doing a particular trade or carrying on a particular business with the help of his own tools, material and skill and employing a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organisations of workmen and employers; and when large scale strikes and lock outs throwing society into chaos and confusion were practically unknown. Legislation had to keep pace with the march of times and to provide for new situations. Social evolution is a process of constant growth, and the State cannot afford to stand still without taking adequate measures by means of legislation to solve large and momentous problems that arise in the industrial field from day to day almost . When our came to be passed, labour disputes had already assumed big proportions, and there were clashes between workmen and employers in several instances. We can assume therefore that it was to meet such a situation that the was enacted, and it is consequently necessary to give the terms employed in the referring to such disputes as wide an import as reasonably possible. Do the definitions of industry, industrial dispute and workman take in the extended significance or exclude it? Though the word undertaking in the definition of industry is wedged in between business and trade on the one hand and manufacture on the other, and though therefore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade. The wider import is attracted even more clearly when we look at the latter part of the definition which refers to calling, service, employment or industrial occupation or avocation of workmen. Undertaking in the first part of the definition and industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business. The definition was apparently intended to 623 include within its scope what might not strictly be called a trade or business venture. " The ratio in Mukherjee 's case was relied upon by a three Judge Bench in State of Bombay & Ors. vs The Hospital Mazdoor Sabha & Ors., ; and Gajendragadkar, J. who spoke for the Bench observed: "There is another point which cannot be ignored. Section 2(j) does not define industry in the usual manner by prescribing what it means: the first clause of the definition gives the statutory meaning of industry and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation." "Besides, it would be relevant to point out that too much reliance cannot be placed on what are described as the essential attributes or features of trade or business as conventionally understood. The conventional meaning attributed to the words trade and business has lost some of its validity for the purpose of industrial adjudication. Industrial adjudication has necessarily to be aware of the current of socio economic thought around; it must recognise that in the modern welfare State healthy industrial relations are a matter of paramount importance and its essential function is to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent phenomenon of modern industrialised States in attempting to solve industrial disputes, industrial adjudication does not and should not adopt a doctrinaire approach. lt must evolve some working principles and should generally avoid formulating or adopting abstract generalisations. Nevertheless it can 't harp back to old age notions about the relations between employer and the employee or to the doctrine of laissez faire which then governed the regulation of the said relations. That is why, we think, in construing the wide words used in section 2(j) it would be erroneous to attach undue importance to the attributes 624 associated with business or trade in the popular mind in days gone by. " The Bench thereafter adverted to the negative side and stated: "It would be possible to exclude some activities from section 2(j) without any difficulty. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of section 2(j). These are functions which a constitutional government can and must undertake for governance and which no private citizen can undertake. This position is not in dispute. An attempt is, however, made by the appellant to suggest that in view of the Directive Principles enunciated in of the Constitution and in view of the ideal of a welfare state which has been placed before the country, Governments, both at the level of States as well as at the Centre undertake several welfare activities; and the argument is that the field of governmental or regal activities which are excluded from the operation of section 2(j) should be extended to cover other activities undertaken by the Governments in pursuit of their welfare policies. In our opinion, this contention cannot be accepted. The activities which do not fall within section 2(j) and which are described as governmental or regal or sovereign have been pithily described by Lord Watson as 'the primary and inalienable functions of a constitutional Government '; and it is only these activities that are outside the scope of section 2(j). It sounds incongruous and self contradictory to suggest that activities undertaken by the Government in the interests of socio economic progress of the country as beneficial measures should be exempted from the operation of the which in substance is a very important beneficial measure itself. " Applying the stated principles, this Court in that case held that the J.J. Group of Hospitals came within the definition of industry. Within a couple of weeks from the Hospital Mazdoor Sabha 's case (supra), the same Bench in the case of Corporation of the City of Nagpur vs Its Employees, ; , this time Subba Rao, J., as he then was, speaking for the Court examined the self same question. Before the Court were available two precedents Mukherjee 's case 625 (supra) and Hospital Mazdoor Sabha 's case (supra) and it was stated: "Before considering the positive aspects of the definition, what is not an industry may be considered. However wide the definition of industry may be, it cannot include the regal or soveriegn functions of State. This is the agreed basis of the arguments at the Bar though the learned counsel differed on the ambit of such functions. While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State, the learned counsel for the respondents would seek to confine them to what are aptly termed the primary and inalienable functions of a constitutional Government " The Court analysed the activities of the various departments of the Corporation and observed: "We can also visualize different situations. A particular activity of a municipality may be covered by the definition of industry. If the financial and administrative departments are slowly in charge of that activity, there can be no difficulty in treating those two departments also as part of the industry. But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of industry but also in charge of other activity or activities falling outside the definition of industry. In such cases a working rule may be evolved to advance social justice consistent with the principles of equity. In such cases the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with industrial activity or incidentally connected therewith. " "The result of the discussion may be summarised thus: (1) the definition of industry in the is very comprehensive. It is in two parts one part defines it from the stand point of the employer and the other from the stand point of the employee. If an activity falls under either part of the definition it will be an industry within the meaning of the . (2) The history of industrial disputes and the legislation recognises the basic concept that the activity shall be an orga 626 nised one and not that which pertains to private or personal A employment. (3) The regal functions prescribed as primary and inalienable functions of State though statutorily delegated to a corporation or necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the department connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the . (6) If a department of a municipality discharges many functions some pertaining to industry as defined in the and the other non industrial activities, the predominant functions of the department shall be the criterion for the purposes of the . " Applying these tests, this Court examined as to whether the various departments of the Corporation came within the definition or not. Then came the decision of a Constitution Bench in the case of Management of Safdarjung Hospital vs Kuldip Singh Sethi; , where Chief Justice Hidayatullah spoke for the Court. Referring to the definition of industry. the learned Chief Justice observed: "This definition is in two parts. The first part says that it means any business, trade, undertaking, manufacture or calling of employers and then goes on to say that includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen . ". "Therefore, an industry is to be found when the employers are carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such. What is meant by these expressions was discussed in a large number of cases which have been considered elaborately in the Gymkhana Club case [1968] 1 SCR 742. The conclusions in that case may be stated: 'Primarily, therefore, industrial disputes occur when operation undertaken rests upon cooperation between employer and employees with a view to production and distribution of material goods, in other 627 words, wealth, but they may arise also in cases where the cooperation is to produce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions trade, business or manufacture. ' " In Safdarjung Hospital 's case the decision in Hospital Mazdoor Sabha case was analysed and the Court came to the following conclusion: "In our judgment, the Hospital Mazdoor Sabha 's case took the extreme view of the matter which was not justified. " Then came the case of Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors ; This time the same point was before a seven Judge Bench of this Court. This judgment undertood a review of the entire law. Krishna Iyer, J. spoke for himself, Bhagwati and Desai, JJ. In paragraph 139 of the judgment it was stated: "Banerjee (supra) amplified by Corporation of Nagpur (supra), in effect met with its waterloo in Safdarjung (supra). But in this latter case two voices could be herard and subsequent rulings zigzagged and conflicted precisely because of this built in ambivalence. It behoves us, therefore, hopefully to abolish blurred edges, illumine penumbral areas and overrule what we regard as wrong. Hesistency, half tones and hunting with the hounds and running with the hare can claim heavy penalty in the shape of industrial confusion, adjudicatory quandary and administrative perplexity at a time when the nation is striving to promote employment through diverse strategies which need, for their smooth fulfilment, less stress and distress, more mutual understanding and trust based on a dynamic rule of law which speaks clearly, firmly and humanely. If the salt of law lose its savour of progressive certainty where with small it be stalled? So we proceed to formulate the principles, deducible from our discussion which are decisive, positively and negatively, of the identity of industry under the . We speak, not exhaustively, but to the extent covered by the debate at the bar and, to that extent, authoritatively, until overruled by a larger bench or superseded by the legislative branch. " 628 "Industry as defined in section 2(j) and explained in Banerjee (supra) has a wide import. (a) Where (i) systematic activity, (ii) organised by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations. (d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking. Although section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over reach itself. Undertaking must suffer a contextual and associational shrinkage as explained in Banerjee and in this judgment; so also, service, calling and the like. This yields the inference that all organized activities possessing the triple elements in I, although not trade or business, may still be industry provided the nature of the activity, viz. the employer employee basis, bears resemblance to what we find in trade or business. This takes into the fold of industry undertakings, callings and services, adventures 'analogous to the carrying on of the trade or business '. All features, other than the methodology of carrying on the activity viz. in organizing the cooperation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy. 629 Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more. (a) The consequences are (i) professions, (ii) clubs, (iii) educational institutions, (h) cooperatives, (v) research institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I cannot be exempted from the scope of section 2(j). (b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantial and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non employee character of the unit. (c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or case, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project. The dominant nature test: (a) Where a complex of activities, some of which qualify for exemption others not, involves employees on the total undertaking, some of whom are not workmen as in 630 the University of Delhi vs Ram Nath; , or A some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies. (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the categories which otherwise may be covered thereby. " Beg, CJ., wrote a separate judgment and prefaced it by saying: "I am in general agreement with the line of thinking adopted and the conclusions reached by my learned brother Krishna Iyer. " In paragraph 149 of the judgment, the learned Chief Justice observed: "In his heroic efforts, my learned brother Krishna Iyer, if I may say so with great respect, has not discarded the tests of industry formulated in the past. Indeed, he has actually restored the tests laid down by this Court in D.N. Banerjee 's case, and, after that, in Corporation of the City of Nagpur vs Its Employees, and State of Bombay vs The Hospital Mazdoor Sabha to their pristine glory. " The learned Chief Justice again stated: "Each of us is likely to have a subjective notion about industry. For objectivity, we have to look first to the words 631 used in the statutory provision defining industry in an attempt to find the meaning. If that meaning is clear, we need proceed no further. But, the trouble here is that the words found there do not yield a meaning so readily. They refer to what employers or workers may do as parts of their ordinary avocation or business in life . " "Thus, in order to draw the circle of industry, to use the expression of my learned brother Iyer, we do not find even the term workman illuminating. The definition only enables us to see that certain classes of persons employed in the service of the State are excluded from the purview of industrial dispute which the seeks to provide for in the interests of industrial peace and harmony between the employers and employees so that the welfare of the nation is secured. The result is that we have then to turn to the preamble to find the object of the itself, to the legislative history of the , and to the socio economic ethos and aspirations and needs of the times in which the was passed. " After quoting the definition of industry, the learned Chief Justice proceeded to say in paragraph 158 of the judgment: "It seems to me that the definition was not meant to provide more than a guide. It raises doubts as to what could be meant by the calling of employers even if business, trade, undertaking or manufacture could be found capable of being more clearly delineated. It is clear that there is no mention here of any profit motive. Obviously, the work manufacture of employers could not be interpreted literally. It merely means a process of manufacture in which the employers may be engaged. It is, however, evident that the term employer necessarily postulates employees without whom there can be no employers . " In paragraph 165 of the judgment, the learned Chief Justice added: G "I have contended myself with a very brief and hurried outline of my line of thinking partly because I am in agreement with the conclusions of my learned brother Krishna Iyer and I also endorse his reasoning almost wholly, but even more because the opinion I have dictated 632 just now must be given today if I have to deliver it at all. From tomorrow I cease to have any authority as a Judge to deliver it. Therefore, I have really no time to discuss the large number of cases cited before us, including those what are known as sovereign functions. " Chandrachud, J., as he then was, on behalf of himself Jaswant Singh and Tulzapurkar, JJ. added a note by saying: "We are in respectful agreement with the view expressed by Krishna Iyer, J. that the appeal should be dismissed. We will give our reasons later indicating the area of concurrence and divergence, (underlining is ours) if any, on the various points in controversy on which our learned Brother has dwelt." On 7th of April, the reasonings were delivered by Chief Justice Chandrachud for himself as by then Jaswant Singh, J. delivered a separate set of reasonings for himself and Tulzapurkar, J. The learned Chief Justice (because by then he had assumed that office) referred to several authorities and tests and in paragraph 181 of the judgment stated: ". . These refinements are, with respect, are not warranted by the words of the definition, apart from the consideration that in practice they make the application of the definition to concrete cases dependent upon a factual assessment so highly subjective as to lead to confusion and uncertainty in the understanding of the true legal position. Granting that the language of the definition is so wide that some limitation ought to be read into it, one must step at a point beyond which the definition will skid into a domain too rarefied to be realistic. Whether the cooperation between the employer and the employee is the proximate cause of the ultimate product and bears direct nexus with it is a test which is almost impossible of application with any degree of assurance or certitude. It will be as much true to say that the solicitor 's assistant, managing clerk, librarian and the typist do not directly contribute to the intellectual end product which is a creation of his personal professional skill as that, without their active assistance and cooperation it will be impossible for him to function effectively. The unhappy state of affairs in which the law is marooned will 633 continue to baffle the skilled professional and his A employees alike as also the Judge who has to perform the unenviable task of sitting in judgment over the directness of the cooperation between the employer and the employee, until such time as the legislature decides to manifest its intention by the use of clear and indubious language. Besides the fact that this Court has so held in National Union of Commercial Employees vs M.R. Meher, lndustrial Tribunal, Bombay, [1962] Supp. 3 SCR 157 the legislature will find a plausible case for exempting the learned and liberal professions of lawyers, solicitors, doctors, engineers, chartered accountants and the like from the operation of industrial laws. But until that happens, I consider that in the present state of the law it is difficult by judicial interpretation to create exemptions in favour of any particular class. " The remaining two learned Judges added their separate opinion and in the concluding part stated: "In view of the difficulty experienced by all of us in defining the true denotation of the term industry and divergence of opinion in regard thereto as has been the case with this Bench also we think, it is high time that the Legislature steps in with a comprehensive bill to clear up the fog and remove the doubts and set at rest once for all the controversy which crops up from time to time in relation to the meaning of the aforesaid term rendering it necessary for larger Benches of this Court to be constituted which are driven to the necessity of evolving a working formula to cover particular cases. " The ultimate position available from the seven Judge Bench decision, therefore, is that while three learned Judges delivered their view through Krishna Iyer, J., Beg CJ spoke somewhat differently, yet agreed with the conclusion reached by Krishna Iyer J. Chandrachud, CJ. also agreed with the majority while the remaining two learned Judges looked for legislative clarification to meet the situation. Perhaps keeping in view the observations of the learned Judges constituting the seven Judge Bench, the definition of industry as occurring in section 2(j) of the was amended by 46 of 1982. Though almost six years have elapsed since the amendment came on to 634 the Statute Book, it has not been enforced yet. Bare Acts and Commentaries on the have, however, brought in the new definition by deleting the old one with a note that the new provision has yet to come into force. This situation has further added to the confusion. It is now time to turn to the facts of the case. Judicial notice can be taken of the position that Haryana and Punjab originally constituted one State and Haryana has become 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 has been produced before us with notice thereof to the appellants ' learned counsel. We may extract a part of the Report: "The irrigation department which was set up more than 100 years ago is mainly responsible to provide water supplies for the substance and development of agriculture in the 30.36 hectare cultivable area of the State covered by canal command. This requires harnessing of the surface and grounds water resources of the State and their equitable distribution to the beneficiaries, within Canal Command area. This task involves construction of multipurposes, major, medium and minor irrigation projects, maintenance of net work of channels, regulation of canal supplies, enforcement of water laws etc. and levying of crop wise water supply rates on the irrigators for recovery through the state Revenue Department. Extension, improvement and modernisation of the age old canal system is also continued to be done simultaneously by the Department. Besides the irrigation the department also provides water for drinking purposes to villages and towns in the State. The canal water supplies are also being made available for the industrial development in areas where no other source for water supplies exists". "The State of Punjab was reorganised in the year 1966 and a number of disputes on the sharing of water/powers with successor States croped up. The issues regarding apportionment of Ravi Beas Waters over the preparation uses falling to the share of erstwhile Punjab, 635 apportionment of rights and liabilities of Bhakra Nangal Project, retention of control of Irrigation Head Works of Harike, Ropar and Ferozepur by Punjab, restoration of Bhakra Nangal Project and Beas Project to Punjab etc. are also dealt with by the Department." "The Irrigation Department is also responsible to provide protection to the valuable irrigated lands and public property from flooding, river action and water logging. This requires construction of flood protection, river training, drainage and anti waterlogging works and their maintenance. " "The Department has also to plan ahead for irrigation development in the State for which purpose proposal of irrigation schemes are investigated, surveyed and prepared in advance. Feasibility of irrigation schemes for hydropower generation from the existing and proposed irrigation schemes is also investigated by the Department and their execution undertaken. The execution of new irrigation schemes, extention and improvement of existing schemes requires preparation of detailed designs of channels and their necessary works. This work is also done by the Department." "During designs, execution and maintenance of the irrigation, flood control and drainage projects, field problems arise for the solution of which research, model studies and laboratory experiments have to be conducted. The Department undertakes this work as well." "Having shared with the neighbouring States almost entire water resources of the rivers flowing through the Punjab water has now become a constraint to keep the tempo of the development of irrigated agriculture in the State. For this purpose it has not only become necessary to evaluate the total water resources of the State but also plan conjunctive use of surface and ground water for the optimum development of this precious resource. Further it has become necessary to conserve irrigation supplies and propogate their use economically through innovative water distribution system like sprinklers, drip system, etc. " 636 "The Irrigation Department plans and execute reclamation of salt or thur affected areas within cannal command. Measurements of discharges in the Ravi, the Beas and the Sutlej desides the beings and drains in the State is also carried out by the irrigation department. These observations which are being made for the last over 60 years have provided basic data to the design of multipurposes Bhakhra Nangal, Beas and Beas Sutlej Link projects which have transformed economies not only of the State of Punjab but also of the State of Haryana and Rajasthan. The fact extracted from the Report apparently give a picture of the activities of the Irrigation Department. There is a full Bench judgment of the Punjab and Haryana High Court in the case of Om Prakash vs M/s Executive Engineers, SYL, Kurukshetra & Ors.[1984] Current L.J. 349 where the question that came up for consideration before the full Bench was thus stated; whether the irrigation department of the State (of Punjab) comes within the ambit of industry in section 2(j) of the Industrial disputes Act, 1947? The Court took into account the judgment of another full Bench decision of the same Court in the case of State of Punjab vs Kuldip Singh & Anr., where the question for consideration was whether the Public Works Department of the State Government was an industry. In Om Prakash 's case (supra), the full Bench barely took note of the decision of this Court in Bangalore Water Supply case (supra) but did not deal with it. It also took into account the position of the Irrigation Department in Punjab keeping in the background the provisions of the of 1873 and stated: "The irrigation department is a branch of the public works department. It provides a reasonably assured source of water for crops through the net work of canals. The irrigation department also carries out schemes and takes measures for protecting crops from the menace of floods during the times of abnormal rainfall. In the olden times when there was no canals, agriculture was very limited and cultivators depended solely on rainfall. By the passage of time it was thought necessary to build irrigation and drain age works for the purpose of providing better water facilities to the farmers on whom depends the economy of this country. These works could only be built by the Government. 637 The western Jamuna canal which serves the State of A Haryana was the first major irrigation work which was initially constructed by Feroze Shah Tuglaq in 1351. It was reconditioned by Akbar in 1568 and was extended in 1626 in the reign of Shahjahan. The canal was constructed in a reasonably serviceable form by the British during 1817 1823. Then the Upper Bari doab canal, Sirhind canal, Lower Chinah canal and Lower Jhelum canal etc., were constructed. Thereafter, many other projects have come up and the ones which need mention are Bhakra Nangal project with its network of Bhakra System and the Beas project. All these projects have been carried out by the state at the state expense. It is understandable that such projects could not at all be undertaken by private enterpreneurs or could be left in their hands for execution. Further, water is a state subject as per entry 17 in List II of Seventh Schedule of the Constitution. Even before coming into force of the Constitution, water of rivers and streams was considered to be belonging to the State . . Thus it would be evident that the water has at all times been a State subject and the State can exercise full executive powers in all matters connected with the water. The State supplies water to the farmers through the network of canals. It is correct that water rates are realised from the farmers but they are not realised for the cost of the water. In other words, the State does not sell water to the farmers. As contended justifiably by the learned Advocate General, the water charges are not even sufficient to meet the establishment and maintenance expenses of the department. Moreover, the water rates have never been realised on the basis of the quantity of the water supplied. These rates are dependant upon the class of crops raised by the farmers and have been fixed in terms of per acre. It may be noted that rates for crops, such as wheat, sugarcane, cotton, rice are higher than the other crops such as gram, oil seeds, bajra and maize etc. In other words, the water charges have been linked on the principle of bearability, that is, paying capacity of the farmer dependant upon his income from the kind of crop raised by him. The water is supplied on the basis of the holding of each farmer in terms of cultivable commanded area, that is, on the basis of uniform and equitable yardstick. Again, the water charges are remitted when the crops are damaged by natural 638 calamities such as locust, hailstroms, floods or drought etc. Further, the construction of canals, dams, barrages, and other projects cannot be entrusted to some private hands. The construction of these works involves compulsory acquisition of land which can also be done by the State. Merely this fact that water is supplied by charging certain rates cannot warrant a finding that the state is indulging in trade or business activity or an activity which is analogous to trade, business or economic venture. From what has been stated above, there can be gainsaying that the functions of the irrigation department cannot at all be left to private enterprise. The facts which weighed in holding that the construction and maintenance of national and state highways by the State does not come within the ambit of industry in Kuldip Singh 's case (supra) are present so far as the irrigation department is concerned . In this view of the matter, I hold that the functions of the irrigation departments are essentially government functions and that these functions neither partake of the nature of trade and business nor are even remotely analogous thereto and that this department does not come within the ambit of industry as defined in section 2(j) of the Act." Mr. Shalma for the appellants placed before us some cases of different High Courts in support of his stand that the Irrigation Department should be considered as industry. The first of these cases is that of Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., where the Madhya Pradesh High Court found the Chambal Hydel Irrigation Project to be an industry. The facts of that case reveal that the Project therein was a multipurpose one which was used for generating electricity as also for irrigation purposes. On the facts found therein, the High Court came to the conclusion that it came within the definition under section 2(j) of the Act. In State of Rajasthan vs The Industrial Tribunal, Rajasthan, the question for consideration before the Rajasthan High Court was whether the Survey and Investigation Division of Irrigation Department was an industry. In paragraph 26, the learned Judge came to the conclusion by saying: "In view of the aforesaid decisions of the Supreme Court, I find it difficult to hold that the activities of the 639 State Government by organising its Survey and Investigation. Division in the Irrigation Department through which the State Government rendered services in the matter of supplying water by constructing canals and dams does not fall within the ambit of the sovereign or regal functions of the State. Such service to the people at large, in my opinion, comes within the ambit of the expression industry as defined in section 2(i) of the Act. " The finding runs contrary to the conclusion. If in the opinion of the learned Judge, it was difficult to hold that the activities did not fall within the ambit of the sovereign or regal functions, then the conclusion should have been different. In Dinesh Shanna & Ors. vs State of Bihar & Ors. , [1983] Bihar L.J.R. 207, a Division Bench of the Patna High Court was considering if the Public Health Engineering Department of the State of Bihar was an industry. In paragraph 8 of the judgment, reliance was placed on the Bangalore Water Supply case (supra) and the Nagpur Corporation case (supra) and it was held that the said department of the State Government of Bihar was an industry. In Chief Engineer, Irrigation, Orissa vs Harihar Patra & Anr., a Division Bench of the orissa High Court was considering whether the Salandi Irrigation Project in that State was an industry. The High Court relied upon the earlier full Bench decision of its own Court and some of the decisions of this Court which we have referred to above, and came to hold that the irrigation project was an industry. The Administrative Report of the facts found by the High Court in the instant case have attempted to draw out certain special features. The legal position has been indicated in the earlier part of our judgment. On the tests, as already laid down in the judgments, we do not think these facts found in this case can take out the Irrigation Department outside the purview of the definition of 'industry '. We have already referred to the Dominant Nature test evolved by Krishna Iyer, J. The main functions of the Irrigation Department where subjected to the Dominant Nature test clearly come within the ambit of industry. We have not been able to gather as to why even six years after the amendment has been brought to the definition of industry in section 2(j) of the Act the same has not been brought into force. This Court on more than one occasion has 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 is 640 appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up. For the reasons we have indicated above, these appeals succeed. We make it 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. The appeals are allowed without costs. S.L. Appeals allowed. [/INST]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. </s>

<s>[INST] Summarize the judgement: Criminal Appeal No. 45 of 1972. Appeal by Special Leave from the Judgment and Order dated 18 8 71 of the Calcutta High Court in Crl. Revision No. 1006 of 1970. Sukumar Ghosh for the Appellant. M. M. Kshatriya and G. section Chatterjee for the Respondent. Jaswant Singh, J. concurred with the Opinion of Koshal, J. Kailasam, J. gave a dissenting Opinion. JASWANT SINGH, J. I have had the advantage of going through the judgments prepared by my esteemed Brothers Kailasam and Koshal. While I find myself unable to agree with the view expressed by my learned Brother Kailasam, I am inclined to agree with the opinion of and the conclusion arrived at by my learned brother Koshal. KAILASAM, J. This appeal is filed by special leave by Kamlapati Trivedi against the judgment of the Calcutta High Court in Criminal Revision No. 1006 of 1970 by which it refused to quash the proceedings which were taken cognizance of by the Magistrate, on a complaint given by one Satya Narayan Pathak. Satya Narayan Pathak is the Secretary of Bhartiya Primary School in Howrah. The appellant before us, Kamlapati Trivedi, was a Head Teacher of the Bhartiya Primary School. On 18th April, 1970 Satya Narayan Pathak served a Notice on the appellant calling upon him to show cause why he should not be found guilty of negligence of duty. On receipt of the Notice, the appellant attempted to remove certain records from the school but he was prevented. On the same day, that is, on 18th April, 1970 the appellant complained in writing to the Officer In charge of Bally Police Station, Howrah at 21.40 hours that Satya Narayan Pathak and others criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school. The Police treating the complaint of the appellant as First Information Report took cognizance of an offence under Sections 147, 448 and 722 379 I.P.C. and registered it. A warrant of arrest was issued against Satya Narayan Pathak and others. Satya Narayan Pathak attended the Court on 21 5 1970 and 21 7 1970 the dates fixed for submission of the Police report. The Police Officer who investigated the case on finding no evidence against Satya Narayan Pathak and others, named as accused, submitted a final report and the magistrate agreeing with the report discharged all the accused. As Satya Narayan Pathak felt that the appellant instituted criminal proceedings with intent to cause injury to him and others, for offences under Sections 147, 448 and 379 knowing that there was no just or lawful ground and had caused pecuniary loss and agony to him, he preferred a complaint against the appellant for offences under Sections 211 and 182 of the I.P.C. on 20th October, 1970. The learned Magistrate took cognizance of the case and summoned the appellant under Section 211 of the Indian Penal Code. fixing 10th December, 1970 for appearance of the appellant. On 16th November, 1970 the appellant appeared in court and was released on bail. The appellant moved the High Court of Calcutta for quashing the proceeding of the Magistrate on the ground that the cognizance taken by the Magistrate was bad and without jurisdiction for non compliance of the provisions of Section 195(1) (b) of Criminal Procedure Code. The learned Judge refused to quash the proceedings and discharge the accused, by judgment dated 18th August, 1971. Against the order of the Single Judge of the High Court, the present appeal to this Court has been filed. The main ground of attack in this appeal is that the High Court failed to appreciate the meaning of the words "in relation to any proceedings in any court" in Section 195 (1) (b) of the Code of Criminal Procedure. It is submitted that when a final report was submitted by the Police under Section 173 of Criminal Procedure Code and the Magistrate passed an order it would be a judicial order and the bar under Section 195 (1) (b) would be attracted. The question that arises for consideration is whether on the facts of the case the bar against taking cognizance in Section 195(1)(b) is attracted. Section 195(1)(b) so far as it is relevant for the purpose of this case may be extracted: "195(1) No court shall take cognizance (a) . . . (b) of any offence punishable under any of the following sections of the same Code, namely, sections 723 193, 194, 196, 195, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) . . . (2) In clauses (b) and (c) of sub section (1), the term "Court" (includes) Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877. While Section 190 of the Criminal Procedure Code enumerates the conditions requisite for initiation of proceedings, Section 195 bars taking cognizance of certain offences except on complaint by authorities specified in the Section. Section 195(1) (a) requires that the complaint should be by a public servant if the offences complained of are under Sections 172 to 188 of the Indian Penal Code. Sub section (1)(b) refers to offences under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and requires the complaint in writing of the Court before whom the offence is alleged to have been committed in or in relation to any proceeding in any Court. Sub section (c) relates to offences under Sections 463, 471, 475 or 476 when the offence is committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding a complaint in writing by the court is required. Sections 172 to 190 of the Indian Penal Code deal with offences constituting contempt of lawful authority of public servants. The bar to taking cognizance of offences under Sections 172 to 188 except on a complaint by the public servant is laid down in Section 195(1) (a) of the Code of Criminal Procedure. Chapter XI, of the Indian Penal Code relates to false evidence and offences against public justice. The cases of offence such as under Section 463, 471, 475 or 476 alleged to have been committed by a party in a proceeding in any court in respect of a document produced or given in evidence in such proceeding, the complaint in writing of such court is required. The policy behind the bar for institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence committed against public justice, it should be the concerned authority that should prefer a complaint and no one else. 724 In this appeal we are concerned with the question whether the offence under Section 211 I.P.C. is "committed in or in relation to any proceeding in any court". Before I deal with the question whether the offence is committed in or in relation to any proceeding in any court, I have determined the meaning of the word 'court ' for the purpose of this Section. Sub section (2) to Section 195 states that in clauses (b) and (c) of sub section (1), the term "Court includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877. It may be noted that the word 'includes ' was introduced by an amendment to sub clause (b) Act 18 of 1923 instead of the word "means". In the Criminal Procedure Code 1974 the word 'means ' has been introduced in the place of 'includes '. To some extent the use of the word 'includes ' may widen the scope of the definition. In Halsbury 's Laws of England, third edition, volume 9 at page 342, the meaning of court is given. At page 343 it is stated: "many bodies are not courts, although they have to decide questions, and in so doing have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality". Lord Sankley in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation has enumerated some negative propositions as to when a Tribunal is not a court. The learned Judge 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 enumerating the propositions Lord Sankey observed: "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. (2) Nor because it hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects. (5) Nor because there is an appeal to a Court. (6) Nor because it is a body to which a matter is referred by another body". In enumerating the negative propositions the learned Judge relied on the decision in Rex. vs Electricity Commissioners. In Shri Virinder Kumar Satyawadi vs The State of Punjab. Venkatarama Ayyar, J. speaking for this Court quoted with approval the decision in Shell Co. of Australia (supra) and observed that the dis 725 tinction between Courts and tribunals exercising quasi judicial functions is well established, though whether an authority constituted by a particular enactment falls within one category or the other may, on the provisions of that enactment, be open to argument. After referring to the various decisions, the learned Judge observed "it may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. This view was accepted by the Supreme Court in Smt. Ujjam Bai vs State of Uttar Pradesh where Justice Hidayatullah observed that though the taxing authorities follow a pattern of action which is considered judicial, they are not converted into courts of civil judicature and they still remain instrumentalities of the State and are within the definition of the State. The answer to the question as to what is 'court ' in the Criminal Procedure Code is not free from difficulty for in many places the word Magistrate as well as court is used in identical situations. Section 6 of the Criminal Procedure Code states that besides the High Courts and the Courts constituted under any law other than this Code for the time being in force there should be five classes of Criminal Courts in India, namely: (i) Courts of Sessions; (ii) Presidency Magistrate, (iii) Magistrates of the first class (iv) Magistrates of the second class, (v) Magistrates of the third class. Criminal courts according to this section therefore, consist of courts specified besides the High Court and courts that are constituted under any other law other than Criminal Procedure Code. The Code of Criminal Procedure provides not merely judicial enquiry into or trial of alleged offences but also for prior investigation thereof. Section 5 of the Code provides that all offences under Indian Penal Code shall be investigated, inquired into and tried and otherwise dealt with in accordance with the provisions hereinafter contained. For the purposes of investigation offences are divided into two categories 'cognizable ' and non cognizable. When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on investigation. 726 In case of non cognizable offence the officer shall not investigate without the order of a competent Magistrate. According to scheme of the Code investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts on an information relating to commission of an offence given to an officer in charge of Police Station and recorded under Section 154 of the Code. Investigation consists generally of various steps, namely proceeding to the spot ascertainment of facts and circumstances of the case, discovery and arrest of suspected offender, collection of evidence relating to the commission of the offence which may consist of examination of various persons including the accused, and the reduction of the statement into writing such as places and seizure of things and formation of opinion as to whether on material collected there is a case to place the accused before the Magistrate for trial and filing of the charge sheet under Section 173 of the Criminal Procedure Code. After the investigation is completed and a chargesheet is filed under Section 173 of the Criminal Procedure Code the question of taking cognizance arises. Section 190 of the Criminal Procedure Code lays down conditions necessary for initiation of proceedings. It provides for that any Presidency Magistrate, District Magistrate or Sub Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence. (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed. One mode of taking cognizance by the Magistrate is upon a report in writing of such facts made by any police officer. This stage is reached when the police officer submits a report under Section 173. When the Police Officer upon investigation forms an opinion that there is sufficient evidence or reasonable ground he shall forward the case to the Magistrate empowered to take cognizance of the offence upon a Police report. Under Section 190 of the Criminal Procedure Code, if the Magistrate to whom the report is sent by the Police Officer, agrees with the opinion of the police officer, he proceeds to take cognizance, and issues process under Section 204. The judicial opinion is unanimous that when once Magistrate taking cognizance of an offence finds that there is sufficient ground for proceeding and issues 727 summons or a warrant as the case may be, he takes cognizance, and the trial begins, and further proceedings will be undoubtedly before a criminal court. In Jamuna Singh and others vs Bhadai Sah, Das Gupta, J. observed "The Code does not contain any definition of the words 'institution of a case '. It is clear, however, and indeed not disputed, that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. " When once this stage is reached the requirement of Section 211 of the Indian Penal Code "institutes or causes to be instituted any criminal proceeding" is satisfied. The second part of Section 211 I.P.C. refers to falsely charging a person with having committed an offence. A person falsely charging another of a cognizable offence before a police officer will come within the mischief of the second part of the Section. The crucial question that arises in this case is whether it can be said that when a person falsely charges another person of a cognizable offence before a Police Officer and when the Police Officer upon investigation finds that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate under Section 169 and the Magistrate agrees with him, an offence under Section 211 is committed in or in relation of any proceeding in any court '. It is settled law that when a Magistrate applies his mind under Chapter XVI that is on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for purpose of ordering investigation under Section 156 (3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence vide R. R. Chari vs State of U.P. and in Gopal Das vs State of Assam. When the Magistrate receives a report under Section 169 of the Criminal Procedure Code that there is not sufficient evidence or reasonable ground for suspicion and agrees with it, he may be doing so in exercise of his judicial function but the question is whether he is acting as a court. In Abhinandan Jha & Ors. vs Dinesh Mishra this Court has pointed out the difference between the report by the police filed under Section 170 of the Criminal Procedure Code which is referred to as a charge sheet and a report sent under Section 169 which is termed variously in different States as either 'referred charge ', 'final report ' or 728 summary. This court observed that when the police submitted a report that no case has been made out for sending up accused for trial it is not open to the Magistrate to direct the police officer to file a chargesheet. In such circumstances the Magistrate is not powerless as it is open to him to take cognizance of an offence on the report submitted by the Police under Section 190(1)(c) of the Criminal Procedure Code. Dealing with the position of the Magistrate when a report is submitted by the police that no case is made out for sending a case for trial the court observed that it is open to the magistrate to agree with the report and close the proceedings. Equally it will be open to the Magistrate if he takes a different view to give directions to the police under Section 163(1) to make further investigations. After receiving a report from the police on further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under Section 190(1) (c) notwithstanding the opinion of the police expressed in final report. This court held in conclusion that there is no power expressly or impliedly conferred on the Magistrate under the Code to call upon the police to submit a charge sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending the case for trial. The same view is expressed in the decision in Kamla Prasad Singh vs Hari Nath Singh and another. In R. N. Chatterji vs Havildar Kuer Singh, A. N. Ray J. as he then was, followed the decision in Abhinandan Jha & Ors. vs Dinesh Mishra (supra) and held that the provisions of the Criminal Procedure Code do not empower the Magistrate to direct the police officer to submit a charge sheet but if he is of the opinion that the repot submitted by the police requires further investigation, the Magistrate may order investigation, under Section 163 of the Criminal Procedure Code. It was held that directing further enquiry is entirely different from asking police to submit a charge sheet. The only source open for the Magistrate if he is not satisfied with the police report under Section 169 is to take cognizance of an offence under Section 190(1) (c) of the Criminal Procedure Code. It may be noted that in M. L. Sethi vs R. P. Kapur & Anr., it was held that if the Magistrate disagrees with the opinion of the police he may proceed to take cognizance on the facts stated in the police under Section 190(1) (b). It is clear that when a Magistrate applies his mind to the contents of a complaint before him for the purpose of proceeding under Section 729 200 and the other provisions of the Code following it, he is taking cognizance of an offence as held by five judges Bench decision of this Court in Mowu vs The Superintendent, Special Jail, Nowgong, Assam and Others. The position regarding the case in which Magistrate accepts a report under Section 169 Criminal Procedure Code is different. On an analysis of the various sections, it appears that a report under Section 169 of the Cr. P. C. and the magistrate agreeing with it, are proceedings under Chapter XIV which relates to information to the police and their power to investigate. The Chapter provides for supervision by the Magistrates of the investigation by the police. It has been laid down that Magistrate has no option except to agree with the report of the Police Officer unless he proceeds to take cognizance of the offence under Section 190(1) (c). Though the Magistrate in deciding whether to accept the report or not may be exercising his judicial mind, it cannot be said that he is acting as a court. The Magistrate acting at this stage cannot be said to fulfil the positive requirements enumerated by Venkatarama Ayyar, J. in Shri Virinder Kumar Satvawadi vs The State of Punjab (supra). To be classified as court it must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment and to decide in a judicial manner. It involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. As pointed out by Lord Sankey in Shell Co. case (supra) though there may be some of the trappings of the court the magistrate at this stage cannot be termed as a court within the provisions of Section 195(2) Cr. The magistrate may decide the question finally which may affect parties but that is not enough. Even when a tribunal bears witnesses on oath and decides rights of parties and a right of appeal is provided, it may not, as observed by Lord Sankey, become a court. Most of requirements of a court are lacking when the Magistrate agrees with the report of the police officer under Section 169. At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate. The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage. It cannot be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him. 730 Taking into account the scheme of the Criminal Procedure Code, the function of the Magistrate in agreeing with a report under Section 169 can only be said to be in the course of investigation by the police. In Chapter XIV which relates to information to the police and their powers to investigate, the Magistrate having jurisdiction over the area and empowered to take cognizance is given certain supervisory powers. Thus the Police Officer incharge of Police Station is required to refer the informant to the Magistrate when information as to a non cognizable offence is received by him. The Police Officer shall not investigate a non cognizable case without the orders of the Magistrate though the Police Officer is entitled to investigate a cognizable offence without the order of the Magistrate. The Magistrate under Section 190 is entitled to order an investigation into a cognizable offence. Section 157 Cr. P.C. requires the officer incharge of the Police Station to send a report to the Magistrate empowered to take cognizance of the offence of which he has received information. Under Section 159 Crl. P.C. the Magistrate receiving a report under Section 157 may proceed or depute any magistrate subordinate to him to proceed to hold a preliminary inquiry into the case. Section 164 empowers Presidency Magistrate or any Magistrate of first class or any Magistrate of second class specially empowered by the State Government to record a statement or confession made to him in the course of an investigation under this Chapter. When a search is conducted by a Police Officer, he is required to send copies of the record to the nearest Magistrate empowered to take cognizance. Section 167 of the Crl. P.C. requires that when investigation cannot be completed within 24 hours and when there are grounds of believing that the accusation or information is well founded, the Officer incharge of the Police Station shall transmit to the nearest Magistrate the copy of the entries in the diary relating to the case and forward the accused to such Magistrate. The Magistrate to whom the accused is forwarded is empowered to authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days. If the period is to exceed 15 days he is required to forward the accused to the Magistrate having jurisdiction. When an investigation is completed and when the Police Officer is of the opinion that there is sufficient evidence, he shall forward the accused to the Magistrate along with his report. The final report of the Police Officer is to be submitted under Section 173. It may be noticed that Section 169 does not require the Police Officer to send a report as he is required under Section 170 when he is of the opinion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate. The only precaution he has to take is to take steps to ensure the appearance of 731 the accused in the event of the Magistrate empowered to take cognizance wants his presence. A perusal of the various Sections under Chapter XIV shows that the Magistrate is associated with the investigation by the Police in a supervisory capacity. It has been laid down that when the Magistrate applies his mind for ordering an investigation under Section 156(3) of the Cr. P.C. or for issue of a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. The Magistrate during this stage functions as a Magistrate during investigation. As the trial has yet to commence it cannot be said that he is acting as a court. Before leaving this aspect of the case I would refer to some of the decisions which were cited before us on this point. Strong reliance was placed by the learned counsel for the appellant on a decision in J. D. Boywalla vs Sorab Rustomji Engineer. Boywalla, the appellant in the case, lodged a complaint with the police against the respondent Sorab Rustomji Engineer for cheating in respect of three rupees. The police after investigation submitted a report stating that no offence has been disclosed against him with a request that he may be discharged and his bail bond cancelled. On receipt of the report the Magistrate discharged the accused and cancelled the bail bond. Sorab Rustomji Engineer, against whom the complaint was filed, filed a case under Section 211 of the I.P.C. alleging that the appellant Boywalla instituted criminal proceedings against him knowing that there is no just or lawful ground for such proceedings. The appellant contended that it is the Magistrate that can lodge a complaint under Section 195 (b) of the Cr. P.C. and that no court shall take cognizance of the offence punishable under Section 211 of the I.P.C. when such offence is alleged to have been committed in or in relation to any proceeding to a court except on a complaint in writing of such court. John Beaumont Chief Justice held that in doing what he had done the Magistrate had taken cognizance of the case and therefore under Section 195(b) Cr. P.C. it was the Magistrate alone who could lodge a complaint. Two reasons were given by the Chief Justice. The second ground with which we are concerned at the moment deals as to the capacity in which Magistrate acted when he accepted the police report under Section 169 and discharged the accused. The Chief Justice expressed that after considering the report if the Magistrate thinks that there is no sufficient ground of proceeding he may discharge the accused and though the Code does not expressly provide there can be no doubt that when the Magistrate can act upon the report of the 732 police officer and discharge an accused person without further inquiry only by acting in his judicial capacity which should be open to review by the High Court. The learned Chief Justice proceeded on the basis that before a magistrate passed orders on the report of the police under Section 169 he should take cognizance of the offence. The Chief Justice thus took the view that (1) the Magistrate before discharging the accused in pursuance of a police report under Section 169 takes cognizance and (2) acts in his judicial capacity. While there could be no doubt that the magistrate is acting judicially, I am unable to hold that before a magistrate discharges an accused agreeing with the report of the police under Section 169 Cr. P.C., he takes cognizance. This Court has held that the stage of laking cognizance arises only when he acts under Section 190(1) (b). Further this Court has taken the view that if the magistrate does not agree with a police report under Section 169 Cr. P.C., he can only proceed under Section 190(1)(c). The facts of the case were the accused was arrested and later after the order of discharge the bail bond was cancelled. The circumstances of the arrest of the accused his being released on bail during investigation and his discharge after the police report were the reasons for the learned Chief Justice coming to the conclusion that the Magistrate was acting in a judicial capacity. The learned Judge observed "indeed it is a novelty to me to hear it suggested that there is any authority which can make an administrative order discharging the arrested person from judicial capacity". But as he has pointed out acting in a judicial capacity alone is not enough. The Supreme Court in M. L. Sethi 's case (supra) expressed its dissent from the view taken in Ghulam Rasul vs Emperor where the learned Judge held that a complaint by criminal court is necessary when a false report is made in an investigation by the police. The facts of the case are that Ghulam Rasul made a report to the police that a certain person stole his watch from his car. On investigation the police came to the conclusion that the report was false and that the watch had been removed by the petitioner himself. The case was reported to the Magistrate for cancellation. A complaint was given against Ghulam Rasul for offence under Sections 193 and 211 I.P.C. and the Magistrate took cognizance and recorded the evidence of the prosecution witnesses and framed charge against him. Accepting the contention on behalf of Ghulam Rasul the High Court held that in view of section 195(1) (b), Criminal Procedure Code, the Magistrate 's taking cognizance of the offence was illegal. The Court observed: "I am clear that the words in this sub section 'in relation to any proceeding in any court ' apply to this case of a false report or a false 733 statement made in an investigation by the police with the intention that there shall in consequence of this, be a trial in the Criminal Court". The facts of the case show that a report under Section 169, Criminal Procedure Code was submitted by the police for cancellation and the Magistrate dropped further proceedings. The Supreme Court referring to the view of the High Court observed: "He appears to have held the view that the Magistrate having passed an order of cancellation, it was necessary that the complaint should be filed by the Magistrate, because section 195(1)(b) had become inapplicable. If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding following the police investigation was contemplated we consider that his decision cannot be accepted as correct". This decision makes it clear that even though the Magistrate passed an order of cancellation on the report by the police under section 169 if the Magistrate has not taken any proceeding, a complaint by the Magistrate is not necessary. The decision of the Supreme Court covers the facts of the present case so far as the discharge of the accused on a police report under section 169, Criminal Procedure Code, is concerned. Referring to the Bombay decision, the Supreme Court observed that "the decision of the Bombay High Court in J. D. Roywalla vs Sorab Rustomji Engineer (supra) is also inapplicable because in that case also orders were passed by a Magistrate on the final report made by the police after investigation of the facts in the report, in respect of which complaint under section 211 I.P.C. was filed". In Sethi 's case (supra) at the stage when the complaint was filed by the respondent under Section 211 I.P.C., the police were enquiring into the appellant 's report. When there is no proceeding pending before any court at the time when the applicability of section 195(1) (b) is to be determined, a complaint by the court is not necessary. The decision in Bombay case is therefore not applicable to the facts in Sethi 's case as in the Bombay case orders were passed by the magistrate on the final report of the police. There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under Section 169 the Magistrate does not take any further action. The Bombay, Saurashtra and Andhra Pradesh High Courts in 1946 Bombay 7(11), 1952 Saurashtra 67(68) and (287) have held that a Magistrate passing an order on a final report of police under Section 173 referring the case as false should be deemed to be a Court passing a judicial order disposing of the information to the police, and 734 that in such a case, the complaint of the Magistrate is necessary for the prosecution of the informant under Section 211 of the I.P.C. The Madras, Calcutta and Allahabad High Courts in A.I.R. 1934 Madras 175, A.I.R. 1948 Allahabad 184 Full Bench and A.I.R. 1916 Calcutta 593 following 1921 Patna 302 and 1917 Calcutta 593 have held the other view. For the reasons already stated I hold that when no further proceedings are taken by the Magistrate on receipt of a police report under Section 169 there is no proceeding in or in relation to any court and, therefore, no complaint by the court is necessary. The next question which arises in this case is that whether a complaint by the court is necessary because of the arrest and release on bail of the accused Satya Narayan Pathak in consequence of the complaint given by the appellant. The police after taking cognizance of the complaint by Kamlapati Trivedi, the appellant in this case, took cognizance under Sections 147, 448 and 379 I.P.C., registered a case and issued a warrant of arrest against Satya Narayan Pathak and five others. They all surrendered in court on 6 5 1970 and were released on bail on a bond of Rs. 200/ each. They attended court on 21 5 1970 and 21 7 1970 when the police report was expected to be filed. The High Court found that there was a police investigation and during investigation Satya Narayan Pathak surrendered before the Magistrate who released him on bail and police submitted a final report and the Magistrate discharged him from his bail bond. On this evidence the High Court came to the conclusion that the proceedings before the court become a criminal proceeding only when the court takes cognizance and not before. On these facts the question arises whether the proceedings when the accused were released on bail and later after the receipt of the report from the police they were discharged, would be in or in relation to a court. It was submitted that when in pursuance of a complaint the accused was arrested and remand and bail proceedings were subsequently taken before a Magistrate in connection with the report to the police, they were proceedings in court and a complaint by the court was necessary. In support of the proposition a decision in Badri vs State was relied upon. In that case the Allahabad High Court held that an offence under section 211, Indian Penal Code, alleged to have been committed by the appellant by making a false report against the complainant and others to the police, was an offence in relation to the remand proceedings and the bail proceedings because those proceedings were a direct consequence of the making of the report and the subsequent arrest and, therefore, the case is governed by section 195(1)(b) of Code of 735 Criminal Procedure. The Supreme Court in Sethi 's case (supra) at page 538 did not consider it necessary to express any opinion whether remand and bail proceedings before the Magistrate can be held to be proceedings in a court nor did they consider the question whether the charge of making a false report could be rightly held to be in relation to these proceedings. The position, therefore, is the question whether remand and bail proceedings before the Magistrate in pursuance of information given to the police of a cognizable offence are proceedings in or in relation to a court is left open. To determine whether the remand or bail proceedings are proceedings in a court it is useful to refer again to Chapter XIV of the Criminal Procedure Code. On a complaint by an informant relating to a commission of a cognizable offence the investigation starts. The information may not be against any person. When an investigation cannot be completed in 24 hours after the arrest of the accused and when the officer is of the view that there are grounds for believing that the accusation or information is well founded the officer is required to transmit to the nearest Magistrate a copy of the entries in the diary and to forward the accused to the Magistrate. When the accused is produced the Magistrate is required to act under Section 167(2) of the Criminal Procedure Code. The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in whole. If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction. We have seen that in investigation by the police the Magistrate is associated in a supervisory capacity. The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power. Even the Magistrate who has jurisdiction to try the accused when acting under the Section is not acting as a court for the words used are the Magistrate having jurisdiction. The trial commences only after the offence has been taken cognizance of. The proceedings under Section 167, is during investigation. But it has to be noted that when the bail and remand proceedings are before the Magistrate, he has to act judicially. If the accused applies for bail the Magistrate has to act judicially and take into account the facts of the case before he decides to release the accused on bail or refuse bail. Chapter XXXIII Cr. P. C. deals with bail. Section 496 provides as to when bail may be taken of non bailable offences. The provisions of Sections 496 and 497 speak of an accused person in custody charged with a non bailable offence 736 being produced before court at any stage of the proceedings. The Section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a court while in the custody of the police officer. According to the wording of Section, the bail proceedings would be before a court even though the accused is produced while in custody of a police officer. Even though the word 'court ' is used in Sections 496 and 497, we have to consider whether proceedings can be said to be taken before a court as defined in Section 195(2) of Cr. P. C. In deciding the question we have to bear in mind the restricted meaning given to the word in the observations of Lord Sankey in Shell Company 's case reported in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation (supra) and the tests laid down by Venkatarama Ayyar, J. in Shri Virinder Kumar Satyawadi vs The State of Punjab and Hidayatullah, J. in Smt. Ujjam Bai vs State of Uttar Pradesh (supra). Though there may be some trappings of a court and the section itself mentions the word 'court ', I feel that the requirements for being a court for the purpose of Section 195(2) have not been satisfied. The intention of the legislature in prescribing a bar when an offence under Chapter XI of I.P.C. is committed, that is, when false evidence is given or offence against public justice is committed is that the court should decide whether a complaint should be given for an offence committed before it and if satisfied should prefer the complaint itself. Before a court gives a complaint, it will have to satisfy itself that a prima facie case is made out and that it is in the interest of justice that a complaint should be lodged. The purpose, therefore, is that a private party should not be permitted to make a complaint regarding offences committed in or in relation to court proceedings. In an investigation by the police the complainant is only in the background. He might not have mentioned the name of any person as being involved in the crime. Taking all the circumstances into account, I am, in the absence of the complainant, unable to hold that remand and bail proceedings before cognizance of the offence is taken could be held to be proceedings before a court bearing in mind the restricted meaning given to the word 'court '. The second question is whether the charge of making of the false report could be rightly held to be in relation to proceedings in court. When an information is given of a commission of a cognizable offence, the police register a case and start investigation. For facilitating the investigation provision for remand is provided for. If the investigation is not completed within 24 hours the police may ask for further remand and the court may grant according to provisions of section 167 of 737 Criminal Procedure Code. At this stage though the remand and bail proceedings arise as a consequence of complaint given, it cannot be said that it is the direct result of a false report to a court for no one might have been mentioned in the complaint as a suspect. Further, it will be seen that the complainant is not entitled to appear in court and oppose grant of bail. The court dealing with the remand or bail proceedings cannot be said to fulfil the conditions laid down by Venkatarama Ayyar as the parties are not entitled as a matter of right to be heard in support of their claim and adduce evidence in proof of it. The Magistrate dealing with remand proceedings or a bail petition does not hear the complainant. He acts on the material that is placed before him by the police during investigation. The complainant has no opportunity of substantiating or presenting his case before the Magistrate at this stage. If the action of the Magistrate in agreeing with the report under section 169 Cr. P.C. and the proceedings taken during investigation by way of remand or bail are understood to be proceedings in or in relation to court a complaint may be preferred by the Magistrate without giving an opportunity to the complainant to satisfy the Magistrate about the truth of his case. In this connection, it is useful to refer to section 476 of the Cr. P. C. The section provides that when any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, sub section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction. Before making a complaint a preliminary inquiry is contemplated. Normally, it would mean that the person against whom a complaint is preferred has an opportunity to show why a complaint should not be preferred against him. These stages are not reached in a case when the Magistrate has still to take cognizance of an offence. The restricted meaning given to the Code in section 195(2) Cr. P.C. read along with the conditions to be specified before a complaint is preferred by the court, inclines me to hold that the proceedings before a Magistrate in which he agrees with the report by the police under section 169, Criminal Procedure Code, and the proceedings in remand or bail applications during investigation will not amount to proceedings in or in relation to court. 738 In the result I agree with the High Court that there was no proceeding in or in relation to a court, and, therefore, section 195(1)(b) of Criminal Procedure Code is not attracted. The appeal is dismissed. KOSHAL, J. I have had the advantage of going through the judgment prepared by my learned brother, Kailasam, J. Having given it my best consideration, I regret that I have to differ with him. The facts giving rise to this appeal lie in a narrow compass and may be stated in brief. The appellant before us is one Kamlapati Trivedi (hereinafter called Trivedi) on whose complaint a case was registered under sections 147, 448 and 379 of the Indian Penal Code at the Bally Police Station on the 18th April, 1970 against six persons including one Satyanarayan Pathak (called Pathak hereinafter). Warrants were issued for the arrest of the accused, all of whom surrendered on the 6th of May, 1970 in the Court of the Sub Divisional Judicial Magistrate, Howrah (referred to later herein as SDJM) who who was the magistrate having jurisdiction and who passed an order releasing them on bail. The police held an investigation culminating in a report dated the 25th of July, 1970 which was submitted to the SDJM under section 173 of the Code of Criminal Procedure, 1898 (the Code, for short). The contents of the report made out the complaint to be false and included a prayer that the accused "may be released from the charge". On the 31st of July, 1970 the SDJM, agreeing with the report, passed an order discharging the accused. On the 20th of October, 1970 Pathak filed a complaint before the SDJM accusing Trivedi of the commission of offences under sections 211 and 182 of the Indian Penal Code by reason of the latter having lodged with the police the false complaint dated the 18th of April, 1970. Trivedi appeared in the Court of the SDJM on the 16th of November, 1970 in response to a summons issued by the latter only in respect of an offence under section 211 of the Indian Penal Code and was allowed a fortnight to furnish security while the case itself was adjourned to the 10th of December, 1970. It was then that Trivedi presented a petition dated the 23rd December, 1970 to the High Court at Calcutta praying that the proceedings pending against him before the SDJM be quashed inasmuch as the latter was debarred from taking cognizance of the offence under section 211 of the Indian Penal Code in the absence of a complaint in writing of the SDJM himself in view of the provisions of clause (b) of sub section (1) of section 195 of the Code. Sub sections (1) and (2) of that section may be reproduced here for ready reference: 739 195. (1) No Court shall take cognizance (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is sub ordinate; or (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. (2) In clauses (b) and (c) of sub section (1), the term "Court" includes a Civil, Revenue, or Criminal Court, but does not include a Registrar or sub Registrar under the Indian Registration Act, 1977. " It was argued before the High Court that part of the proceedings which started with the registration of the case by the police on the 18th of April, 1970 at the instance of Trivedi and culminated in the order dated the 31st of July, 1970 discharging Pathak and his five co accused constituted proceedings before a Court, that the offence under section 211 of the Indian Penal Code attributed to Trivedi was committed in or, in any case, in relation to such part and therefore the case against Trivedi fell within the ambit of clause (b) above extracted. The argument did not find favour with the High Court and the learned Single Judge before whom it was made rejected it with the following observations: "The police submitted a final report and so the Magistrate discharged him from his bail bond but there was no criminal proceeding before the Court against Satyanarayan. The proceeding before the Court becomes a criminal proceeding only when a Court takes cognizance and not before. Whatever the view of the other High Courts 740 may be, the consistent view of this High Court is that so long as cognizance is not taken it cannot be said that there was a proceeding pending in the Court in respect of that offence and since no proceeding was pending before the Court section 195 (1)(b) of the Code is not attracted. " It is against the order of the High Court (which is dated the 18th of August, 1971) that Trivedi has instituted this appeal by special leave. Before us the argument which was put forward on behalf of Trivedi for the consideration of the High Court has been repeated and it has been urged strenuously by his learned counsel that in so far as the SDJM passed an order on the 6th of May, 1970 releasing him on bail and then another on the 31st of July, 1970 discharging him, the SDJM acted judicially and therefore as a Court, that it cannot but be held that these orders were passed in proceedings in relation to which the offence under section 211 of the Indian Penal Code was alleged to have been committed and that consequently the SDJM had no jurisdiction to take cognizance of that offence. The points requiring determination therefore are: (a) Whether the SDJM acted as a Court when he passed the orders dated the 6th of May, 1970 and the 31st of July, 1970 or any of them? (b) If the answer to question (a) is in the affirmative, whether the offence under section 211 of the Indian Penal Code attributed to Trivedi could be regarded as having been committed in relation to the proceedings culminating in either or both of the said orders? 5. In finding an answer to question (a) I attach quite some importance to the provision of sections 6, 496 and 497 of the Code. These sections are extracted below: "6. Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely: I. Courts of Session: II. Presidency Magistrates: III. Magistrates of the first class: IV. Magistrates of the second class: V. Magistrates of the third class." 741 "496. When any person other than a person accused of a non bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided : "Provided, further, that nothing in this section shall be deemed to affect the provisions of section 107, sub section (4), or section 117, sub section (3)." "497. (1) When any person accused of or suspected of the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed non bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. "(3) An officer or a Court releasing any person on bail under sub section (1) or sub section (2) shall record in writing his or its reason for so doing. "(3A) If, in any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not concluded within a period of sixty days from the first date fixed 742 for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. "(4) If, at any time, after the conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. "(5) A High Court or Court of Sessions and, in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody. " Magistrates are specifically labelled as Courts by the statutory provisions of section 6 and therefore have to be regarded as such. It is no doubt true that the Code assigns to a Magistrate various functions which do not fall within the sphere of judicial duties and are, on the other hand, functions of an executive nature such as the exercise of supervisory jurisdiction in relation to investigation carried out by the police or work done on the administrative side; and it may plausibly be argued that in the discharge of such functions a Magistrate does not act as a Court. But then in my opinion a Magistrate cannot but be regarded as a Court when he acts judicially. This follows from the provisions of section 6 itself. The Code does not contain any provision to the effect that no functions performed by a Magistrate in relation to criminal proceedings whether handled by him or dealt with by the police would be regarded as functions performed by a Court unless they are posterior in point of time to the stage when he acts under section 190 of the Code. On the contrary, sections 496 and 497 which embrace bail matters specifically describe a Magistrate while dealing therewith as a Court and these sections operate fully at all stages of a case including that when the investigation has just started. There is nothing in the context in which the word `Court ' is used in these two sections and section 195 which would provide an indication that it has been used in two different senses therein, and in such a situation the legislature must be deemed to have used it in one and the same sense wherever it occurs in the Code. While deciding the question of bail, therefore, a Magistrate must be held to be 743 acting as a Court and not in any other capacity, irrespective of the stage which the case has reached by then, that is, whether it is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate. It at once follows that the taking of cognizance of any offence by a Magistrate under section 190 of the Code is not a condition precedent for him to be regarded as a Court. Nor do I feel that the opinions expressed by Halsbury and Lord Sankey lay down any different principle. Those opinions appear to me to cover only cases of tribunals which perform quasi judicial functions but are not statutorily recognised as `Court '. At page 342 of Volume 9 of Halsbury 's Laws of England (third edition) appears the following passage in Para 809 : "Originally the term "court" meant, among other meanings, the Sovereign 's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not courts, in the sense in which the term is here employed, namely, to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction. Thus, arbitrators, committees of clubs, and the like, although they may be tribunals exercising judicial functions, are not "courts" in this sense of that term. On the other hand, a tribunal may be a court in the strict sense of the term although the chief part of its duties is not judicial. Parliament is a court, its duties are mainly deliberative and legislative : the judicial duties are only part of its functions. A coroner 's court is a true court although its essential function is investigation. " In para 810 the learned author proceeds to lay down the criteria which determine when a tribunal would be regarded as a Court. In his opinion, the elements to be considered are : (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings. 744 The learned author then quotes Lord Sankey 's observations in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation and then gives numerous examples of tribunals which are not regarded as Courts. One common feature of such tribunals is that they are not described as Courts by statute and are charged with the performance of administrative or executive functions as distinguished from judicial functions. Paragraph 812 on page 344 of the same Volume deals with the subject of creation of Courts and lays down : "Courts are created by the authority of the Sovereign as the fountain of justice. This authority is exercised either by statute, charter, letters patent, or Order in Council. In some cases, a court is held by prescription, as having existed from time immemorial, with the implication that there was at some time a grant of the Court by the Sovereign, which has been lost. "An Act of Parliament is necessary to create a court which does not proceed according to the common law. " Reference may usefully be made to Section 6 of the same Chapter in which the above paragraphs occur. That Section is headed "Magistrates ' Courts". The relevant part of paragraph 1041 with which the Section begins is to the following effect: "A magistrate 's court consists of a justice or justices of the peace acting under any enactment or by virtue of his or their commission or under common law (otherwise than as a court or committee of quarter sessions or a purely administrative tribunal), or of a stipendiary magistrate." The combined effect of the various paragraphs forming part of the treatise and noticed above would be that a Court may be created by a statute and that when such a Court performs judicial functions, it will be deemed to act as a Court and further, that Magistrates ' Courts are regarded as such unless performing executive or administrative functions. That is how the position stands in England and there is nothing in the case of Shell Company of Australia Ltd. vs Federal Commissioner of Taxation (supra) which runs to the contrary. It may be noted that in that case the question for decision was as to whether the Board of Review which had been constituted under the Australian Income Tax Assessment Act to review the decisions of the Commissioner of Taxation was or was not a Court and it was in that context that Lord Sankey expressed his opinion. Obviously he was 745 not dealing with the functions of a tribunal which had been statutorily labelled as a Court. What I have said of Lord Sankey 's opinion is true of the decisions of this Court in Virinder Kumar Satyawadi vs The State of Punjab and Smt. Ujjam Bai vs State of Uttar Pradesh. In the former the question for decision was as to whether a returning officer discharging functions under the Representation of the People Act, 1951 was a Court and in answering the same the Court referred to the case of Shell Company of Australia (supra) and other English and Australian authorities and then observed : "It is unnecessary to traverse the same ground once again. It may be stated broadly that distinguishes a court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. " In Ujjam Bai 's case (supra) this Court was resolving a question as to whether an officer of the income tax department was a Court and replied in the negative, broadly for the reason that even though taxing authorities follow a pattern of action which is considered judicial, they are not converted into Courts of civil judicature and that their actions are executive in nature. Neither of these cases deals with an authority on which the status of a Court is conferred by statute, nor with one forming part of the judiciary, such as a Magistrate in whose case the opinion of this Court would surely have been different as is apparent from the judgment of Hidayatullah, J., in Ujjam Bai 's case (supra) which quotes the following passage from Gullapalli Nageswara vs State of Andhra Pradesh 746 "The concept of a quasi judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power." and then proceeds : "The taxing departments are instrumentalities of the State. They are not a part of the Legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes they have to follow a pattern of action, which is considered judicial. They are not thereby converted into Courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of `State ' in article 12. In this view of the matter, their actions must be regarded, in the ultimate analysis, as executive in nature, since their determinations result in the demand of tax which neither the legislature nor the judiciary can collect. Thus, the actions of these quasi judicial bodies may be open to challenge on the ground of breach of fundamental rights. " It is thus clear that the source of power exercised by the authority, that is, whether it is an executive power or judicial power would make all the difference in the determination of the question as to whether the authority acts as a Court or merely as a quasi judicial tribunal not functioning as a Court. In this connection a reference may also be made to section 19 of the Indian Penal Code coupled with illustration (b) appended thereto and section 20 thereof : Section 19 : "The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person. "Who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which if confirmed by some other authority, would be definitive, or "who is one of a body of persons, which body of persons is empowered by law to give such a judgment." 747 Illustration (b) : "A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge. " Section 20 : "The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. " Although we are not here concerned with the terms "Judge" and "Court of Justice" properly so called, the provisions above extracted do give a definite indication of the attributes of a Court as used in criminal law generally. It may be noted that the Code and the Indian Penal Code are the main statutes operating in India in relation to the dispensation of criminal justice and may in a sense be regarded as supplementary to each other, the Code forming the procedural link of the same chain of which the Indian Penal Code constitutes the link of substantive law. This relation between the two enactments is further strengthened by the provisions contained in sub section (2) of section 4 (the definition clause) of the Code which runs thus : "4 (2) : Words which refer to acts done, extend also to illegal omissions; and "all words and expressions used herein and defined in the Indian Penal Code, and not hereinabove defined, shall be deemed to have the meanings respectively attributed to them by the Code. " It is no doubt true that the expression "Court of Justice" does not appear to have been used in the Code (although the expression "Judge" does find a place in section 197 thereof), but then there is no escape from the conclusion that when a "Judge" (including a Magistrate) who is empowered to act judicially and does so act constitutes not merely a Court but a Court of Justice. Now I proceed to examine the relevant provisions contained in Chapter XIV of the Code which carries the caption "INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE". It may be stated at once that although the Chapter is headed as stated, it is not confined to matters which are strictly concerned with the investigation stage but also deals with situations which arise after the investigation has been finalized. Reference may be made in this behalf to subsection (2) of section 172 of the Code reads thus : 748 "Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court, but, if they are used by the police officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of the , section 161 or section 145, as the case may be, shall apply. " The sub section clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but undoubtedly as a Court. The caption of the Chapter therefore is not decisive of the question as to whether a particular provision contained therein is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a Court. The contents of sections 169, 170 and 173 of the Code may now be scrutinised. They are re produced below : "169. If, upon an investigation under this Chapter, it appears to the officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial." "170. (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed." 749 "(2) When the officer in charge of a police station forwards an accused person to a Magistrate or take security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article, which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. "(3) If the Court of the District Magistrate or Sub divisional Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons." "173. (1) : Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall "(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond and, if so, whether with or without sureties, and "(b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. "(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. "(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, 750 the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. "(4) After forwarding a report under this section the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub section (1) and of the first information report recorded under section 154 and all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under section 164 and the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses. "(5) Notwithstanding anything contained in sub section (4), if the police officer is of opinion that any part of any statement recorded under sub section (3) of section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to the Magistrate stating his reasons for excluding such part : "Provided, that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused. " Section 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation (1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate (section 169) (2) that there is sufficient evidence or reasonable ground as aforesaid (section 170). In either case the final report of the police is to be submitted to the Magistrate under sub section (1) of section 173. Sub section (3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by section 169), the 751 Magistrate shall make "such order for the discharge of such bond or otherwise as he thinks fit". Now what are the courses open to the Magistrate in such a situation? He may, as held by this Court in Abhinandan Jha & Others vs Dinesh Mishra. (1) agree with the report of the police and file the proceedings, or (2) not agree with the police report and (a) order further investigation, or (b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of. The appropriate course has to be decided upon after a consideration of the report and the application of the mind of the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2 (a). The order passed by the Magistrate in each of the other two courses, that is, (1) and 2(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on the one hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court. The reasons which have weighed with me in coming to the conclusion arrived at in the last paragraph are equally applicable to the consideration of the question whether an order of bail passed by a Magistrate calls for the performance by him of his judicial functions. Such an order also decides the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in the discharge of his judicial duties, which factor constitutes it an act of a Court. For a tribunal to be acting as a Court, it is not necessary that the parties must have a right of hearing or adducing evidence at every stage of the proceedings before it. This is specially true of Courts constituted as such by the legislature. Reference may here be made to interlocutory orders issuing temporary injunctions or staying 752 proceedings in a subordinate Court or dispossession of a party by Civil Courts at the instance of a plaintiff or appellant and in the absence of the opposite party which comes into the picture later on after it is served with a notice. And even subsequent to the appearance of the party adversely affected, the existence of a prima facie case would till the scales against it so that the order earlier passed in favour of the other party is confirmed till the conclusion of the case on merits, even though the case may finally be decided otherwise and the interlocutory order found to be unjust and then vacated. And yet it can hardly be argued that the presiding officer of the Court does not act as a Court when passing such an order. Really, the right to adduce evidence and be heard is to be taken into consideration as being available at one stage of the proceedings or the other. Thus in the case of an order passed by a Magistrate under sub section (3) of section 173 of the Code in agreement with the police report does not call for any hearing or the production of any evidence on the part of the accused, as it goes in his favour. If the Magistrate, on the other hand, disagrees with the report submitted by the police and takes cognizance of the offence, the accused comes into the picture and thereafter shall have the right to be heard and to adduce evidence in support of his innocence. Viewed in this context, all orders passed by a Magistrate acting judicially (such as orders of bail and those passed under subsection (3) of section 173 of the Code discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial, or earlier according to the exigencies of the situation obtaining at a particular stage, and which involves, if need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. In the view that I have taken of the matter, I do not consider it necessary to go into the details of the conflict of opinion amongst the High Courts in India in relation there to but I would touch briefly thereupon. In J. D. Boywalla vs Sorab Rustomji Engineer Beaumont, C. J. speaking for himself and Macklin, J., emphatically held that a Magistrate while passing a order releasing an accused person on bail or discharging him in pursuance of a report submitted by the police to the effect that the evidence was insufficient to sustain the charge, acts judicially and therefore as a Court within the meaning of that term as used in clause (b) of sub section (1) of section 195 of the Code. That decision was followed by a Division Bench consis 753 ting of Shah, C. J., and Baxi, J., in State vs Vipra Khimji Gangaram in so far as an order discharging an accused person as aforesaid is concerned. Beaumont, C. J. 's view in regard to orders of bail was accepted as correct by M. C. Desai, C.J., and Mishra, J., in Badri vs State. These three decisions, in my opinion, lay down the correct law on the point and the view expressed to the country by the Madras, Calcutta and Patna High Court as also by a Full Bench of the Allahabad High Court in Hanwant vs Emperor and by a Full Bench of the Lahore High Court in Emperor vs Hyat Fateh Din merits rejection for the reasons stated above. In so far as this Court is concerned, the point debated before us has not been the subject matter of any decision and was expressly left open in M. L. Sethi vs R. P. Kapur & Anr. In that case the appellant had lodged a report with the police charging the respondents with certain cognizable offences. While the police were investigating into the report, the respondent filed a complaint in the Magistrate 's Court alleging that the appellant had committed an offence under section 211 of the Indian Penal Code by falsely charging the respondent with having committed an offence. The Magistrate took cognizance of the respondent 's complaint under section 190 of the Code. At that stage there were no proceedings in any Court nor any order by any Magistrate for arrest, remand or bail of the respondent in connection with the appellant 's report to the police. Later, however, the police arrested the respondent in connection with the appellant 's report and filed a charge sheet against him, but the case ended in an order of discharge. Thereafter, the appellant raised an objection in the Court of the Magistrate to the effect that cognizance of the offence under section 211 of the Indian Penal Code could not be taken in view of the provisions of clause (b) of sub section (1) of section 195 of the Code. The Magistrate rejected the contention and the order was confirmed by the Sessions Court and the High Court. While dismissing the appeal, this Court held that the complaint filed by the respondent was competent and that clause (b) aforesaid did not stand in the way of the Magistrate taking cognizance, in as much as, there had been no proceedings of any kind whatsoever before the Magistrate in relation to the report lodged by the appellant with the police till the complaint was 754 filed by the respondent. Reliance was placed on behalf of the appellant in that case on Badri vs State (supra) and J. D. Boywalla vs Sorab Rustomji Engineer (supra) but the points decided in those cases were held not to arise in the case then before the Court which made the following observations in relation thereto : "In the case of Badri vs State, where an offence under section 211, I.P.C., was alleged to have been committed by the person making a false report against the complainant and others to the police, it was held that it was an offence in relation to the remand proceedings and the bail proceedings which were subsequently taken before a Magistrate in connection with that report to the police, and, therefore, the case was governed by section 195 (1) (b), Cr. P. C., and no cognizance of the offence could be taken except on a complaint by the Magistrate who held the remand and bail proceedings. We do not consider it necessary to express any opinion whether the remand and bail proceedings before Magistrate could be held to be proceedings in a Court, nor need we consider the question whether the charge of making of the false report could be rightly held to be in relation to those proceedings. That aspect need not detain us, because, in the case before us, the facts are different. The complaint for the offence under section 211, I.P.C. was taken cognizance of by the Judicial Magistrate at Chandigarh at a stage when there had been no proceedings for arrest, remand or bail of the respondent and the case was still entirely in the hands of the police. There was, in fact, no order by any Magistrate in the proceedings being taken by the police on the report lodged by the appellant up to the stage when the question of applying the provisions of section 195 (1)(b), Cr. P.C. arose. These two cases are also, therefore, of no assistance to the appellant. On the same ground, the decision of the Bombay High Court, in J. D. Boywalla vs Sorab Rustomhi Engineer is also inapplicable, because in that case also orders were passed by a Magistrate on the final report made by the police after investigation of the facts in the report in respect of which the complaint under section 211, I.P.C. was sought to be filed." 13. In another part of the judgment deciding M. L. Sethi vs R. P. Kapur (supra) this Court disagreed with the view expressed in Ghulam 755 Rasul vs Emperor wherein Blacker, J., made the following observation : "I am clear that the words in this sub section "in relation to any proceedings in any Court" apply to the case of a false report or a false statement made an investigation by the police with the intention that there shall in consequence of this be a trial in the criminal Court, and I find support for this view in the case reported as 1929 Sind 132 (1)". This view of Blacker, J., was repelled by this Court thus : "The decision in the words in which the learned Judge expressed himself appears to support the argument of learned counsel for the appellant in the present case but we think that very likely in that case, the learned Judge was influenced by the circumstances that the case had been reported by the police to the Magistrate for cancellation. He appears to have held the view that the Magistrate having passed an order of cancellation, it was necessary that the complaint should be filed by the Magistrate, because section 195 (1) (b) had become applicable. If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police, it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding following the police investigation was contemplated, we consider that his decision cannot be accepted as correct. " These observations cannot be held to mean that if an order of cancellation of a case has actually been passed by a Magistrate in agreement with the report of the police to the effect that no sufficient evidence was available against the accused, such order could not be regarded as a judicial proceeding and the Magistrate passing it could not be given the status of a Court. This is apparent from the last sentence of the passage just above extracted which indicates that all that was meant was that if Blacker, J., meant to say that even though no proceeding at all had been taken by the Magistrate, clause (b) of sub section (1) of section 195 of the Code would be attracted merely for the reason that the police had held an investigation which would at a later point of time result in any proceedings before the Magistrate this Court could not agree with him. Another fact which may be noted in this connection is that judgment in Ghulam Rasul vs Emperor (supra) does not state in unmistakable terms that any order 756 of cancellation of the case was passed by the concerned Magistrate and all that is mentioned is that the police had reported the case for "cancellation", which may well mean that really no order of cancellation had in fact been made by the Magistrate. As the order releasing Trivedi on bail and the one ultimately discharging him of the offence complained of amount to proceedings before a Court, all that remains to be seen is whether the offence under section 211 of the Indian Penal Code which is the subject matter of the complaint against Trivedi can be said to have been committed "in relation to" those proceedings. Both the orders resulted directly from the information lodged by Trivedi with the police against Pathak and in this situation there is no getting out of the conclusion that the said offence must be regarded as one committed in relation to those proceedings. This requirement of clause (b) aforementioned is also therefore fully satisfied. For the reasons stated, I hold that the complaint against Trivedi is in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it the SDJM acted in contravention of the bar contained in the said clause (b), as there was no complaint in writing either of the SDJM or of a superior Court. In the result, therefore, I accept the appeal and, setting aside the order of the High Court, quash the proceedings taken by the SDJM against Trivedi. ORDER In accordance with the opinion of the majority, the appeal is allowed, the order of the High Court is set aside and the proceedings taken by the Sub Divisional Judicial Magistrate against the appellant, Kamlapati Trivedi, are quashed. N.V.K. Appeal allowed. [/INST]Section 195(1)(b) of the Code of Criminal Procedure provides that no court shall take cognizance of any offence punishable under any of the sections enumerated therein (one of which is section 211) if such offence is alleged to have been committed in or in relation to any proceedings in any court. The appellant filed a complaint with the police that the accused criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school of which he was the secretary. After investigation the police found that there was no evidence against the accused and therefore, the Magistrate discharged all the accused. One of the accused thereupon preferred a complaint under section 211 IPC alleging that the appellant had instituted criminal proceedings with the intent to cause injury to him and others knowing that there was no just or lawful ground and thereby caused pecuniary loss and agony to him. The appellant moved the High Court for quashing the proceedings before the Magistrate because in the absence of a complaint in writing of the Magistrate himself, the Magistrate had no jurisdiction to take cognizance of the offence under s.211 IPC in view of the provisions of section 195 (1)(b) of the Cr. The High Court refused to quash the proceedings. On further appeal it was contended that an order passed by a Magistrate on a report submitted by the police under section 173 Cr. P. C. being a judicial order the bar of section 195(1)(b) would be attracted. Allowing the appeal, ^ HELD: Per Koshal, J. (with whom Jaswant Singh, J. agreed) 1. The complaint against the appellant was in respect of an offence alleged to have been committed in relation to a proceeding in court. In taking cognizance of it the Magistrate acted in contravention of the bar contained in section 195(1)(b) because there was no complaint in writing either of the Magistrate or of a superior court. [756 D] 2. Taking cognizance of any offence by a Magistrate under section 190 is not a condition precedent for him to be regarded as a court. Magistrates are specifically labelled as courts by section 6 of the Code of Criminal Procedure and, therefore, have to be regarded as such. It is true that a Magistrate also performs functions which are of an executive nature and do not fall within 718 the sphere of judicial duties and it may plausibly be argued that in the discharge of those functions he does not act as a court. But then he cannot but be regarded as a court when he acts judicially. Sections 496 and 497 which make provision for bail matters describe a Magistrate while dealing with those matters as a court and these sections operate at all stages of a case including that when the investigation has just started. Neither in these sections nor in section 195 is there anything to show that the word "court" has been used in two different senses and therefore the legislature must be deemed to have used it in one sense wherever it occurs in the Code. [743 B, 742 D H] 3. The well accepted position is that a court created by a statute, when it performs judicial functions, would be deemed to act as a court; and Magistrates ' courts are regarded as such unless they are performing executive or administrative functions. [744 F G]. Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation, PC and Halsbury 's Laws of England (3rd Edn.) Vol. 9 p. 342; Virinder Kumar Satyawadi vs The State of Punjab, ; Smt. Ujjam Bai vs State of U.P., [1963] 1 SCR 778; referred to. The source of power exercised by the authority, i.e. whether it is executive or judicial power, would make all the difference in the determination of the question whether the authority acts as a court or merely as a quasi judicial tribunal. [746 F]. Section 4(2) of the Code of Criminal Procedure provides that "all words and expressions used herein and defined in the IPC and not hereinabove defined shall be deemed to have the meanings respectively attributed to them by the Code. " In the matter of dispensation of criminal justice the Indian Penal Code (which contains the substantive law) and the Criminal Procedure Code (which deals with procedure) may be regarded as supplementary to each other. The term "Judge" and "Court of justice" used in sections 19 and 20 of the Indian Penal Code give an indication of the attributes of a court as used in criminal law generally. Although the term "court of justice" has not been used in the Cr. P.C. the expression "Judge" is used in section 197 and, therefore, when a judge (including a Magistrate) who is empowered to act judicially and does so act, constitutes not merely a Court but a Court of Justice. [747 E, D, C, F G]. The caption of Chapter XIV is not decisive of the question whether a particular provision contained in it is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a court. Although Chapter XIV is headed "Information to the police and their powers to Investigate", it is not confined to matters which are strictly concerned with the investigation stage but also deals with situations arising after the investigation has been finalised. For example, section 172(2) clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but as a court. Similarly sections 169 and 170 are another instance in point in which an order passed by a Magistrate is a judicial order determining the rights of the parties after application of his mind. If that 719 be so the order passed by the Magistrate in the instant case must be characterised as a judicial act and therefore as one performed in his capacity as a court. [748 D, 747 G 748 C, 750 G, 751 E] 7. For a tribunal to be acting as a court, it is not necessary that the parties must have a right of hearing of adducing evidence at every stage of the proceedings before it. While passing interlocutory orders, issuing temporary injunctions etc. , the presiding officer of a court does act as a court. [751 H 752 B]. All orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub section (3) of section 173 of the Code discharging the accused or orders taking cognizance of an offence complained of) are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial or earlier, according to the exigencies of the situation obtaining at a particular stage and which involves, if the need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. [752 E F]. Abhinandan Jha & Ors. vs Dinesh Mishra, ; ; M. L. Sethi vs R. P. Kapur & Anr., ; ; referred to. Kailasam, J. (dissenting) The restricted meaning given to "Court" in section 195(2) Cr. P.C. read along with the conditions to be specified before a complaint is preferred by the court, indicate that the proceedings before a Magistrate in which he agrees with the report by the police under section 169 Cr. P.C. and the proceedings in remand or bail applications during investigations will not amount to proceedings 'in or in relation to court. ' [737 H]. The policy behind the bar against institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence is committed against public justice, it should be the concerned authority that should prefer a complaint and no one else. [723 H]. A court is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law [725 B C]. It is settled law that when a Magistrate applies his mind on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for the purpose of ordering investigation under section 156(3) Cr. P.C. or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. [727 E] 4. When the Magistrate receives a report under section 169 of the Cr. P.C. that there is not sufficient evidence or reasonable ground for suspicion and agrees 720 with it, he may be doing so in exercise of his judicial function but the question is whether he is acting as a court. Most of the requirement of a court are lacking at this stage. To be classified as a court, an authority must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. This involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. [729 D E]. Though the Magistrate in deciding whether or not to accept the report of a police officer under section 169 Cr. P.C. may be exercising his judicial mind and though there may be some of the trappings of the court, at this stage he cannot be termed as a court within the provisions of section 195(2) Cr. At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate. The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage. It cannot, therefore, be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him. [729 B, F H] 7. The proceeding under section 167 Cr. P.C. is during investigation. The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in whole. If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction. In investigation by the police the Magistrate is associated in a supervisory capacity. The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power. The trial commences only after the offence has been taken cognizance of. [735 E F] 8. Section 496 provides as to when bail may be taken in non bailable offences. The provisions of section 496 and section 497 speak of an accused person in custody charged with a non bailable offence being produced before court at any stage of the proceedings. The section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a Court while in the custody of the police officer. Though there may be some trappings of a court and the section itself mentions the word 'court ', the requirements for being a court for the purpose of section 195(2) have not been satisfied. [735 H 736 D] 9(i) There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under section 169 the Magistrate does not take any further action. The Bombay, Saurashtra and Andhra Pradesh High Courts in , 1952 Saurashtra 67(68) and (287) have held that a Magistrate passing an order on a final report of police under section 173 referring the case as false should be deemed to be a court passing a judicial order disposing of the information to the police, and that in such a case, the complaint of the Magistrate is necessary for the prosecution of the informant under section 211 IPC. The Madras, Calcutta and 721 Allahabad High Court in AIR 1934 Mad. 175, AIR 1948 All. 184 FB and AIR 1916 Cal. 593 have held the other view. (ii) When no further proceedings are taken by the Magistrate or receipt of a police report under section 169 there is no proceeding in or in relation to any court and therefore, no complaint by the court is necessary. [733 G 734 B]. </s>

<s>[INST] Summarize the judgementivil Appeal No. 2873 of 1987. From the Judgment and Order dated 5.8.1987 of the Punjab & Haryana High Court in Civil Revision No. 2209 of 1979. Harbans Lal, S.K. Mehta, Dhruv Mehta and Aman Vachher for the Appellant. Rajinder Sachhar, K.C. Dua and Ms. Manju Chopra for the Respondent. N.S. Das Behl, (Not present) The Judgment of the Court was delivered by 425 RANGANATH MISRA, J. This is a tenant 's appeal by special leave challenging his eviction from a business premises located at Jallandhar. Under a rent note (Exh. A I), the appellant had taken the premises on rent from the respondent landlord. The use to which the premises was intended to be put was running of a cycle and rickshaw repairing shop. As far as relevant, on the allegation that the tenant had put the premises to different use, an application for his eviction was made under section 13(2)(ii)(b) of the East Punjab Urban Rent Restric tion Act, 1949. The Controller found that the appellant had continued the business of repairing of cycles and rickshaws but side by side had for a period of about seven months been selling televisions in the premises but he stopped the same as it was not viable. According to the Controller, this did not constitute user for a purpose other than that for which the premises was leased and he accordingly rejected the peti tion. The appellate authority at the landlord 's instance held that the statutory condition was satisfied and granted eviction. The High Court when moved by the tenant declined to interfere. The short question that arises for consideration is whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased. The tenant did not dispute that he had taken the premises for running a repair shop of cycles and rickshaws. In his statement he said that he had commenced the business of selling the televisions side by side in view of the slump in the cycle and rickshaw repairing business. He also accepted the position that he had not obtained the consent of the landlord when he started the TV business. The landlord has accepted the position that in the rent note it was not written that the respondent would not do any business in the shop in dispute except the cycle or rickshaw repairs. On these facts it has now to be decided as to whether the premises has been used for a purpose other than that for which it had been leased. Reliance was placed on the Full Bench decision of the Punjab High court in Des Raj vs Sham Lal, AIR 1980 P & H 229 where the question for consideration was as to whether when the lease was for the purpose of a shop without anything more specific, user thereof as a godown amounted to change of user. The High Court in course of the discussion in the judgment rightly drew the distinction between resi 426 dential and non residential premises and also classified non residential buildings into known categories like shop, godown, restaurant, cinema, hotel etc. In course of the discussion the Full Bench referred to the decision of this Court in Moti Ram vs State of Madhya Pradesh, ; and came to the conclusion that when the letting out purpose was location of a shop and it .was exclusively used as a godown, it amounted to a change of user. Not much of support is directly available for the resolution of the present dispute from that judgment. Reliance was also placed on a decision of this Court in the case of Mohan Lal vs Jai Bhagwan, ; where the very provision of the East Punjab Act was considered in a case of eviction. The decision of this Court in the case of Maharaj Kishan Kesar vs Milkha Singh, (C.A. No. 1086/64 decided on November 10, 1965) was referred to therein. That again was a decision under the very Act and the dispute related to the allegation of change of user when petrol was sold as an allied business of the avowed purpose of locating the workshop. The Court found. that location of a petrol pump could not be regarded as not being a part of motor workshop business. Rightly, our learned brother Mukharji, J. indicated that the ratio in Maharaj Kishan Kesar 's case did not provide any guideline of general nature. What was said in pars 9 of his judgment is perhaps useful. Our learned Brother quoted the observations of Lord Diplock, J. in Duport Steels Ltd. vs Sirs, and said: "While respectfully agreeing with the said observations of Lord Diplock, that the; Par liament Legislates to remedy and the judiciary interprets them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of the time. In the background of the purpose of rent legisla tion and inasmuch as in the instant case the change of the user would not cause any mis chief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which at tracted the mischief of section 13(2)(ii)(b). " On that conclusion, the order of eviction was reversed. Letting of a premises can broadly be for residential or commercial purpose. The restriction which is statutorily. provided in section 13(2)(ii)(b) of the Act is obviously one to protect the interests of the landlord .and is intended to restrict the use of the landlord 's premises 427 taken by the tenant under lease. It is akin to the provision contained in section 108(0) of the dealing with the obligations of a lessee. That clause pro vides: 'The lessee may use the property and its products, if. any, as a person of ordinary prudence would use then if they were of his own; but be must not use or permit another to use the property for a purpose other than that for which it was leased . ' A house let for residential purpose would not be available for being used as a shop even without structural alteration. The concept of injury to the premises which forms the foundation of cl. (o) is the main basis for providing cl.(b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction. The Privy Council in U Po Naing vs Burma Oil Co., AIR 1929 PC 108 adopted the same considera tion. The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property Simi larly, the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plas tic goods, change in the nature of business did not bring about change of user as contemplated in section 108(o) of the The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable. In this case, the premises was let out for running of a repair shop. Along with the repair business, sale of televi sions was temporarily .carried on. We do not think this constituted a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant. The appeal is allowed and the order of eviction passed by the appellate authority and affirmed by the High Court is vacated and the order of the Controller is restored. Parties are directed to bear their own costs throughout. T.N.A. Appeal allowed. [/INST]The appellant had taken the premises on rent from the respondent landlord for running a cycle and rickshaw repair ing shop. In the rent note there was no stipulation that the appellant would not do any business in the shop except the cycle or rickshaw repairs. Along with the repair business the appellant temporarily carried on sale of televisions also in the premises. The landlord filed an application for eviction under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 alleging that the tenant had put the premises to different use. The Rent Controller rejected the application by holding that the temporary sale of televisions did not constitute user for a purpose other than that for which the premises was leased. On an appeal filed by the landlord the appellate authority granted eviction by holding that the statutory condition was satisfied. The appeal filed by the tenant against the decision of the appellate authority was dis missed by the High Court. Hence this appeal by the tenant. Allowing the appeal and setting aside the order of eviction, HELD: Letting of a premises can broadly be for residen tial or commercial purpose. The restriction which is statu torily provided in section 13(2)(ii)(b) of the Act is obvi ously one to protect the interests of the landlord and is intended to restrict the use of landlord 's premises taken by the tenant under lease. It is akin to the provision con tained in section 108(o) of the dealing with the obliga 424 tions of a lessee. A house let for residential purpose would not be available for being used as a shop even without structural alteration. The concept of injury to the premises which forms the foundation of clause (o) is the main basis for providing clause (b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction. [426H, 427A B] The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable. In the instant case, the premises was let out for running of a repair shop. Along with the repair busi ness, sale of televisions was temporarily carried on. This did not constitute a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant. [427E, F] Mohan Lal vs Jai Bhagwan, ; , applied. Des Raj vs Sham Lal, A.I.R. 1980 P & H 229, held inapplica ble. Moti Ram vs State of Mahdya Pradesh, A.I.R. 1978 S.C. 1594; Maharaj Krishan Kesar vs Milkha Singh, Civil Appeal No. 1086 of 1964 decided on November 10, 1965 (S.C.); Dup port Steel Ltd. vs Sirs, ; U.P. Naing vs Burma Oil Co., A.I.R. 1929 P.C. 108; Raghavan Pillai vs Sainaba Beevi, [1977] Kerala L.T. 417 and Dattatraya vs Gulab Rao, , referred to. </s>

<s>[INST] Summarize the judgement: Criminal Appeals Nos. 15 and 35 of 1967. Appeals from the judgment and order dated October 12, 1966 of the Bombay High Court in Criminal Revision Application No. 289 of 1966. N.S.Bindra,R.M.Parikh and S.P. Nayar, for the appellants (in Cr. A. No. 15 of 1967) and the respondents (in Cr. A. No. 35 of 1967). N.N. Keswani, for the appellants (in Cr. A. No. 35 of 1967) and the respondents (in Cr. A. No. 15 of 1967). K.R. Chaudhuri, for the intervener (in Cr. A. No. 15 of 1967). The Judgment of the Court was delivered by Hegde, J. These appeals by certificate arise from the decision of the High Court of Bombay in Criminal Revision Application No. 238 of 1966 wherein the following questions of law arise for decision: (i) Whether the prosecution from which these Criminal Revision Petitions arose is barred under article 20 (2) of the Constitution as against accused Nos. 1 and 2 in that case by reason of the decision of the Collector of Customs in the proceedings under the ? (ii) Whether under any circumstance the finding of the Collector of Customs that the Ist and 2nd accused are not proved to be guilty operated as an issue estoppel in the criminal case against those accused ? (iii) Whether the present prosecution amounts to an abuse of the process of the Court in view of inordinate delay in launching the same and consequently whether it is liable to be quashed ? (iv) Whether section 173(4), Criminal Procedure Code is applicable to the facts of this case and (v) Whether the documents mentioned in the petition filed by the 1st accused on August 3, 1965 are required tO be summoned under section 94, Criminal Procedure Code ? The aforementioned questions were raised before the trial Magistrate by the 1st accused by means of an application but 441 the learned Magistrate ' found ,no substance in the pleas advanced in that application and accordingly he dismissed the same as per his order dated 25,1 1966. In revision, a .Division Bench of the Bombay High Court agreeing with the trial Magistrate negatived all but one of the contentions advanced on behalf of accused Nos. 1 and 2. It did not agree with the learned Magistrate that there was no need, at that stage to summon the statements of witnesses recorded Customs Act. It directed the learned Magistrate to summon hose statements and curiously enough, it went further and directed him to see that the prosecution made available the copies of those statements to the accused before the commencement of the enquiry in the case. In so far as. the Other documents called for are concerned, the High Court after indicating, what according to it, is the law on the subject left the matter to the discretion of the learned Magistrate. Criminal Appeal No. 15 of 1967 is filed by the Assistant Collector of Customs, Bombay and the State of Maharashtra and Criminal Appeal No. 35 of 1967 is the appeal filed by accused Nos. 1 and 2 in the case (Case No. 98 of 1965 in the Court of the Chief Presidency Magistrate, Bombay). The appellants in Criminal Appeal No. 15 of 1967 challenge the correctness of the decision of the Bombay High Court in so far as it went against them and the appellants in Criminal Appeal No. 35 of 1967 challenge that decision in other respects. The prosecution case is that the accused persons and some other unknown persons had entered into a conspiracy at Bombay and other places in the beginning Of October, 1959 or India and in pursuance of that conspiracy they had smuggled several items of foreign goods in the years 1959 and 1960. In that connection an enquiry was held by the Customs authorities. In the course of the enquiry some of the goods said to have been smuggled were seized. After the close of the enquiry those goods were ordered to be confiscated. In addition penalty was imposed on some of the accused. Thereafter on February 19, 1965, the Assistant Collector of Customs, Bombay after obtaining the required sanction of the Government flied a complaint against five persons including the appellants in Criminal Appeal No. 35 of 1967 (accused Nos. 1 and 2 in the case) under section 120 B,I.P.C. read with cls. (37), (75), (76) and (81) of section 167 of the (Act VIII of 1878) as well as under section 5 of the Imports and Exports (Control) Act, 1947. Before the commencement of the enquiry in that complaint, the 1st accused filed on August 3, 1965, the application mentioned above. C.I./69 11 442 Now we shall proceed to examine the contentions set out earlier. Reliance on article 20(2) is placed under the following circumstances. In the enquiry held by the Collector of Customs, he gave the benefit of doubt to accused Nos. 1 and 2. This is what he stated therein: "As regards M/s. Lamel Enterprises (of which accused No. 1 is the proprietor and accused No. 2 is the Manager) although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty. Since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthorised importation, they escape on a benefit of doubt." Despite this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons. Hence the question is whether that prosecution is barred under article 20(2) of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once. This article has no direct bearing on the question at issue. Evedently those accused persons want to spell out from this article the rule of autrefois acquit embodied in section 403, Criminal Procedure Code. Assuming we can do that still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence. In order to get the benefit of section 403, Criminal Procedure Code or article 20(2), it is necessary for an accused person to establish that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he ' might have been convicted under section 237. It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a "prosecution" nor the Collector of Customs a "Court". In Maqbool Hussain vs The State of Bombay(1), this Court held that the wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute (1) ; 443 which creates the offence and regulates the procedure. This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under section 167 of the and an order for confiscation of goods had been passed, was subsequently prosecuted before a criminal court for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act, the proceeding before the Sea Customs authorities was not a "prosecution" and the order for confiscation was not a "punishment" inflicted by a Court or judicial tribunal within the meaning of article 20(2) of the Constitution and hence his subsequent prosecution was not barred. The said rule was reiterated in Thomas Dana vs State of Punjab(1) and in several other cases. We shall not take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution. The issue estoppel rule is but a facet of the doctrine of autrefois acquit. In Sambasivan vs Public Prosecutor, Federation of Malaya(a), Lord MacDermott enunciated the said rule thus: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less appliCable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. " The rule laid down in that decision was adopted ' by this Court in Pritam Singh vs State of Punjab(a) and again in N.R. Ghose alias Nikhil Ranjan Ghose vs State of West Bengal(4). (1) (2) at p. 479. (3) AI.R. 1956 S.C, 415. (4) ; 444 But before an accused can call into aid the above rule, he 'must establish that in a previous lawful trial before a competent court,he has secured a verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the reasons already mentioned, we are unable to hold that the proceeding before the Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2. This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same. It is urged on behalf of the accused that because of the delay in launching the same, the present prosecution amounts to an abuse of the process of the Court. The High Court has repelled that contention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the case. of the accused that any period of limitation is prescribed for filing. the complaint. Hence the court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there, was delay in instituting the complaint. We also see no merit in the contention that the accused in this case are entitled to the benefit of section 173(4), Criminal Procedure Code which provides that before the commencement of the enquiry or trial the officer in charge of the police station who forwards a report under section 173, Criminal Procedure Code, should furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under section 173(1), Criminal Procedure Code of the first information report recorded under section 154, Criminal Procedure Code and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164, Criminal Procedure Code and the statements recorded under section 161, Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses. On a plain reading of section 173, Criminal Procedure Code, it is clear that the same is wholly inapplicable to the facts of the present case. In the instant case no report had been sent under section 173, Criminal Procedure Code. Therefore that provision is not attracted. That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code, followed up by a final report under section 173, Criminal Procedure Code. It may be remembered that sub section (4) of 445 173, was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 1955, presumably because of the changes effected in the mode of trials in cases instituted on police reports. Before the Criminal Procedure Code was amended by Act 26 of 1955, there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases. Till then in all. cases irrespective of the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquiries or trials was identical. In both type of cases, there were two distinct stages i.e. the enquiry stage and the trial stage. When the prosecution witnesses were examined in a case before a charge is framed, it was open to the accused to cross examine them. Hence there was no need for making available to the accused the documents mentioned in subs.(4) of section 173, Criminal Procedure Code. The right given to him under section 162, Criminal Procedure Code was thought to be sufficient to safeguard his interest. But Act 26 of 1955 as mentioned earlier made substantial changes in the procedure to be adopted in the matter of enquiry in cases instituted on police reports. That procedure is now set out in section 251(A), Criminal Procedure Code. This new procedure truncated the enquiry stage. Section 251 (A), Criminal Procedure Code says that the Magistrate, if upon consideration of all the documents referred to in section 173 and making such examination if any, of the accused as he thinks necessary and after giving the prosecution and the accused an opportunity of being heard considers the charge against the accused to be groundless he shall discharge him but if he is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case which he is competent to try. and which in his opinion could be adequately punished by him, he shall frame in writing a charge against him. Under the procedure prescribed in section 251 (A), Criminal Procedure Code but for the facility provided to him under s.173(4)of that Code an accused person would have been greatly handicapped in his defence. But in a case instituted on a complaint, like the one before us and governed by sections 252 to 259 of the Criminal Procedure Code, no such difficulty arises. Therein the position is as it was before the amendment of the Criminal Procedure Code in 1955. We are unable to agree with the learned fudges of the High Court that the legislature did not make available the benefit of s.173(4), Criminal Procedure Code in cases instituted otherwise than on police reports by oversight. The observations of the learned Judges in the course of their judgment that "Even the great Homer occasionally nods. There is nothing to show that the,legislature has applied its mind to the question of the amendment of the procedure so far as the investigation of an offence 446 under the is concerned at the time when it was considering amendments to the Criminal Procedure Code" is without any basis. In the first place, it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly. Secondly from the history of the legislation to which reference has been made earlier, the reason for introducing section 173(4) is clear. The learned judges of the High Court were constrained to hold that s, 173(4), Criminal Procedure Code in terms does not apply to the present case. But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case, they have directed the learned Magistrate to require the prosecution to make available to the accused, the copies, of the statements recorded from the prosecution witnesses during the enquiry under the Customs Act. They have purported to make that order under section 94(1), Criminal Procedure Code which to the extent material for our present purpose reads: "Whenever any Court . . considers that production of any document or other thing is necessary or desirable for the purposes of any . enquiry, trial or other proceeding under this Code by or before such Court . such Court may issue a summons . to the person in whose possession and power such document or thing is believed to be, requiring him to attend and produce it. or to produce it, at the time and place stated in the summons or order. " This section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person That much appears to be plain from the language of that section it was impermissible for the High Court to read into section 94, Criminal Procedure Code the requirements of section 173(4), Criminal Procedure Code. The High Court was not justified, in indirectly applying to cases instituted on private complaints the requirements of section 173(4), Criminal Procedure Code. That apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate Whether a particular document should be summoned or not is essentially in the discretion of the trial court. In the instant case the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs authorities and shall make avail able to the defence Counsel the statement of the concerned witness as and when he is examined. In view of that assurance, the learned Magistrate observed in his order: "The recording of the prosecution evidence is yet commence in this case and at present there are no male 447 before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the heating of the case. The request made for the issue of the summons under section 94, Criminal Procedure Code is also omnibus." The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has not come to the conclusion that the documents in question, if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of eases and result in waste of public money and time as has happened in this case. For the reasons mentioned above, we allow Criminal Appeal No. 15 of 1967 and dismiss Criminal Appeal No. 35 of 1967. In other words, we restore the order of the learned Magistrate. G.C. Criminal Appeal No. 15 of 1967 allowed. Criminal Appeal No. 35 of 1967 dismissed. [/INST]The appellant entered into a contract with the Government of India. The contract contained an arbitration clause. For certain supplies made under the contract the appellant made representations to the Government or payment and for arbitration of disputes. On or about July 10, 1958 Government refused to refer the matter for arbitration. On July 11, 1961 the appellant flied an application in the Court of the District Judge under sections 8 and 20 of the , for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the court. The respondent contended that the application was barred by Limitation. The District Judge allowed the application, holding that there was no limitation for making an application under sections 8 and 20. The defendant 's appeal was dismissed by the High Court as incompetent in so far as it challenged the order under section 8 but was allowed in so far as it challenged the order under section 20. The High Court held that an application under section 20 is governed 'by article 181 of the Indian Limitation Act, 1908. In coming to this conclusion the High Court took into account the settled judicial view that the. operation of article 181 is limited to applications under the Code of Civil Procedure. and reasoned as follows: Article 181 should be construed as if the words 'under the Code ' were added in it. The repealed paragraph 17 of the second schedule to the Code and re enacted it in section 70 with minor modifications. That being so section 8(1) of the applied and the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the . Appeal against the High Court 's judgment was filed with certificate. HELD: The 'appeal must be allowed. By the the Legislature amended articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in article 181. It is manifest that save as provided in articles 158 and 178 there would not be any limitation for other applications under the Act. Further there is nothing to indicate that for the purpose of limitation section 20 of the 1940 Act should be regarded as a re enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. [236 D G] In the circumstances it is not possible to construe the implied reference in article 181 to the Code of Civil Procedure as a reference to the or to hold that article 181 applies to applications under that Act. The rule of construction given in section 8(1)of the cannot be applied, as it appears that the legislature had a 233 different intention. It follows that an application under sections 8 and 20 of the is not governed by article 181. The Limitation Act does not prescribe any period of limitation for such an application. [236 G H] The present application under sections 8 and 20 was therefore not barred by limitation. [237 A] Bai Manekbai vs Manekji Kavasji, Born. 213, 214 Hansraj Gupta vs Official Liquidator Dehra Dun Mussourie Electric Tramway Company, (1933) L.R. 60 I.A. 13, 20, Shah Mulchand & Co. vs Jawahar Mills Ltd. ; , 371, Bombay Gas Co. vs Gopal Bhiva, ; and Wazirchand Mahajan & Anr. vs Union of India, ; , referred </s>

<s>[INST] Summarize the judgementiminal Appeal No. 09 of 1966. Appeal by special leave from the judgment and order dated November 24, 1965 of the Bombay High Court in Criminal Revi ion Application No. 232 of 1965. 194 A.S. R. Chari, N. C. Maniar, P. C. Bhartari and J. B. Dada. chanji, for the appellant. G. L. Sanghi and section P. Nayyar, for respondent No. 1. N. C. Maniar, K. L. Hathi and Atiqur Rehman, for respondent No. 2. The Judgment of the Court was delivered by Vaidialingam, J. In this appeal, by special leave, on behalf of the appellant, the fifth accused in Special Case No. 9 of 1963. in the Court of the Special Judge for Greater Bombay, Mr ' A. section R. Chari, learned counsel, challenges the order, dated November 24, 1965, passed by the High Court of Bombay, in Criminal, Revision Application No. 232 of 1965. There are five accused, in Special Case No. 9 of 1963. The appellant, and accused No. 4, are partners of an industrial concern, known as 'Premier Industries '. Accused No. 1 is an Income tax Consultant, and accused Nos. 2 and 3, are clerks. in the Income tax Department. The substance of the prosecution case. against these five accused, is that they formed a conspiracy, to cheat the income tax authorities, in respect of the income tax assessments, of the Premier Industries, for the assessment year 1960 61, and, in pursuance of the said conspiracy, committed ,offences, under section 420 IPC., and section 5(1)(d) read with section 5(2). of the Prevention of Corruption Act, 1947 (Act 11 of 1947). (hereinafter called the Act). They have also been charged with an offence, under section 468 IPC., alleged to have been committed, by them, in furtherance of the said conspiracy. The allegations, relating to the commission of the offence,. under section 420 IPC., is comprised in charge No. 2. That charge ends up by saying that, by the various acts, mentioned therein. the appellant, along with accused No. 1, who is the Income tax Practitioner, and accused No. 4, dishonestly or fraudulently induced the income tax authorities and obtained assessment order for less income tax than due by accused Nos. 4 and 5, and that. all the three of them, have committed an offence, under section 420. It is not necessary to refer to the other charges. The appellant raised an objection, to the framing of a charge. under section 420 IPC. According to him, the charge should really have been framed under section 417, on the ground that the assessment order, in this case, is not 'property '. He also raised an objection, that the assessment order, is not 'valuable security '. The Special Judge, by his order, dated February 3, 1965, re jected the preliminary objections, raised by the appellant. He held that the assessment order was 'property ', and that it was also 'valuable security '. Therefore, he held that the charge, framed 195 under section 420 IPC., was correct. There were certain other objections, raised 'by the appellant, viz., that sanction had not been obtained, under section 196A, Cr. P.C., that where the offence itself was alleged to have been committed, in pursuance of the conspiracy, and was the subject matter of charge, no charge of conspiracy could still be maintained, and that the period of conspiracy had been artificially fixed, in the charge. These objections have also been overruled, by the Special Judge. The appellant carried the, matter, in revision, before the High Court of Bombay. The learned Judge, by his order, dated November 24, 1965, which is under attack, has confirmed the order of the Special Judge. Here again, the High Court has taken the view that the assessment order is 'property ' and it is also 'valuable security ', under section 30, IPC. The High Court is further of the view that the allegations, contained in the material charge, do prima facie disclose an offence, under section 420 IPC. Certain other objections, raised before the High Court, were also negatived. Mr. A. section R. Chari, learned counsel for the appellant, has again reiterated the same objections. Except for the question, relating to the charge framed under section 420 IPC., we make it clear that we are not expressing any opinion, regarding the other points, raised by Mr. Chari. If any other objections are available to the appellant, or any other accused, he or they, will be perfectly entitled to raise the same, during the course of the trial. The argument, regarding the invalidity of the charge, framed under section 420, runs as follows. The essential ingredient of an offence, under section 420 IPC., is that the person cheating, must thereby, dishonestly induce, the person deceived, to deliver any property, or to make the whole or any part of a valuable security. We are not referring to the other matters, contained in section 420 IPC. The issue or delivery of an order of assessment, by an Income tax Officer is not in consequence of the cheating, committed by a party, though it may be that the computation of income, as found in the assessment order, may be the result of cheating, practised by the accused. Therefore, the accused cannot be considered to have, by creating, dishonestly induced the Income tax Officer, to deliver the assessment order, because that is issued, to a party, as a matter of routine. The assessment order, cannot also be considered to be 'property ', within the meaning of section 420 IPC. It cannot also be stated, that the accused, by cheating have dishonestly induced the Income tax Officer to make a valuable security, because an assessment order, can, in no sense, be considered to be a valuable security. No legal right is created by an assessment order. The liability to payment of income tax is created by the charging section, section 3, of the Indian 196 Income tax Act, 1922, and the demand, for payment of tax is made, on the basis of a notice of demand, issued by the Income tax Officer, concerned. At the most, the accused will be guilty of ' cheating ', as defined under section 415, IPC, inasmuch as they may have intentionally induced the Income tax Officer, who is deceived, to do or omit to do, anything which he would not do, or omit. if he were not so deceived, and they will be liable for punishment, under section 417, IPC. Mr. G. L. Sanghi, learned counsel for the State, has supported the views, expressed by the High Court. We are not inclined to accept the contentions of Mr. Chari, that there is any error, or illegality, in framing a charge, under section 420 IPC. As to whether the prosecution is able to make out its case, or not, is a different point. We are only concerned, at this stage, to consider as to whether, under the circumstances, a charge, under section 420, could have been framed. It is well known, that, under the Indian Income tax Act, liability to pay income tax arises on the accrual of the income, and not from the computation, made by the taxing authorities, in the course of assessment proceedings, and that it arises, at a point of time, not later than the close of the year of account. It has also been laid down, by this Court, that assessments particularise the total income of an assessee and the amount of tax, payable. But it is not as if that the assessment order is valueless, as is sought to be made out. The question, that arises for consideration, in this case, is whether there is any 'delivery of property ', or, at any rate, whether the Income tax Officer has been induced 'to make a valuable security '. 'Movable property ' is defined, in section 22, IPC; 'Document ' and 'valuable security ' are defined in sections 29 and 30, IPC, respectively. Under the scheme of the Income tax Act, it is clear that the assessment order determines the total income of the assessee, and the tax payable, on the basis of such assessment. The assessment order has to be served, on the assessee. The tax is demanded, by the issue of a notice, under section 29; but the tax demanded, is on the basis of the assessment order, communicated to an assessee. The communicated order of assessment, received by an assessee, is in our opinion, 'property ', since it is of great importance, to an assessee, as containing a computation, of his total assessable income and, as a determination, of his tax liability. In our view, the word 'property ', occurring in section 420, IPC, does not necessarily mean that the thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value, in the hand of the person cheated. Even if the thing has no money value, in the hand of the person cheated, but becomes 197 a thing of value, in the hand of the person, who may get possession of it, as a result of the cheating practised by him, it would still fall within the connotation of the term 'property ', in section 420, IPC. Once the assessment order is held to be 'property ', the question arises as to whether there is a 'delivery ', of the, same, to the assessee, 'by the Income tax Officer. It is argued that the order is communicated, in the usual course, and that irrespective of any ,cheating ', the officer is bound to serve the assessment order. This argument, though attractive, has no merit. Communication, or service of an assessment order, is part of the procedure of the assessment itself. But it can be held that, if the necessary allega tions are established, the accused have dishonestly induced the Income tax Officer, to deliver the particular property, viz., the assessment order, as passed by him, in and by which a considerably low amount has been determined, as the total income of the assessee, on the basis of which the amount of tax, has been fixed. Nor are we impressed with the contention, that the deception, if at all, is practised, not when the assessment order is delivered, but at the stage, when the computation, of the total income, is made, by the Income ,tax Officer. The process of 'cheating ', employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee. An offence under section 420, IPC, will also be made out, if it is established that the accused have cheated and, thereby, dishonestly induced the Income tax Officer to make a 'valuable security '. This takes us to the question : "Is the assessment order. 'valuable security ' ?" We have already referred to section 30, IPC, defining, valuable security '. The assessment order is certainly a 'document ', under section 29, IPC. The order of assessment does create a right, in the assessee, in the sense that he has a right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent. Therefore an 'order of assessment ' is a 'valuable security ', under section 420, IPC. Therefore, if the cheating, employed by the accused, resulted in inducing the Income tax Officer to make a wrong assessment order, it would amount to inducing the Income tax Officer, to make a 'valuable security '. Considering the question, from either point of view, as indicated above, it follows that the framing of a charge, for an offence, tinder section 420 IPC., is correct. The appeal, accordingly, fails, and is dismissed. G.C. Appeal dismissed. [/INST]The appellant along with certain others was tried for the offence of entering into a conspiracy to cheat the income tax authorities in respect of the income tax assessment of a firm. The prosecution levelled against him a charge inter alia, of the offence under section 420 I.P.C. The appellant raised before the Special Judge an objection to the effect that the terms of section 420 I.P.C. were not satisfied inasmuch as (i) an assessment order was not 'property ', (ii) its communication to him was not 'delivery ', (iii) an assessment order was also not a 'valuable security '. The Special Judge and the High Court rejected these contentions. The appellant came to this Court by special leave. HELD : (i) Even if an assessment order is not 'property ' in the hands of the Income tax Officer, it is 'property ' in the hands of the assessee because it contains a computation of his assessable income and a determination of his tax liability. The word property occurring in section 420 I.P.C. does not necessarily mean that the. thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value in the hands of the person cheated. [196 G 197 A] (ii) Communication or service of an assessment order is part of the procedure itself. But if the necessary allegations are established, the accused must be held to have dishonestly induced the Income tax Officer to 'deliver ' the particular property viz. the assessment order. Nor could the contention be accepted that the deception, if at all, is practised not when the assessment order is delivered, hut at the stage when the computation of the total income is made by Income tax Officer, for, the process of 'cheating ' employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee. [197 C D] (iii) An order of assessment is a 'valuable security ' under section 420 [.P.C. because@ it creates a right in the assessee in the sense that he has right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent. [197 F G] On the above reasoning, framing of a charge for an offence under 420 I.P.C. is correct. </s>

<s>[INST] Summarize the judgementAppeal No. 1323 of 1966. Appeal by special leave from the judgment and order dated September 10, 1965 of the Allahabad High Court in Civil Miscellaneous Writ No. 3567 of 1965. Niren De, Addl. Solicitor General and N. H. Hingorani, for the appellant. R.K. Garg, D. K. Agarwala and M. V. Goswami, for respon dent No. 1. The appellant will be so entitled, if it is held to be 'a railway ', as contended, on behalf of the appellant. The High Court of Allahabad, in its order and judgment, under appeal, has held that the appellant is not a railway, but only a tramway and, as such, not eligible for exemption, from the tax, in question. The short facts, leading to this appeal, may now be briefly set out. The appellant is a limited liability company; and it runs a railway, between Shahdara, in Delhi, and Saharanpur, in the State of Uttar Pradesh a distance of about 95 miles or 148.865 kilo meters. The appellant company also operates within the municipal area of Saharanpur. The company was, originally, registered as a tramway, under the (Act XI of 1886) (hereinafter called the Tramways Act), on November 20, 1905. By Notification, No. 5752, dated July 5, 1907, the Governor General in Council extended to the appellant company, the whole of the Indian Railways Act, 1890 (Act I of 245 1890) (hereinafter called the Railways Act), excepting the provisions of Section 135. The Municipal Board of Saharanpur, the first respondent herein, imposes a terminal tax, under the provisions of section 128(1)(xiii) of the United Provinces Municipalities Act, 1916, as amended by Act I of 1918. Under the said Act, the first respondent has prohibited the importation of goods, within the local limits of the Saharanpur Municipality, by rail, until the tax leviable thereon, or in respect thereof, has been paid, in accordance with the provisions of the Act and the Rules. The Board has also framed rules for the assessment and collection of Terminal Tax, as authorized by the Government Notification No. 856/XI D.T. 3, dated May 1, 1919. The rules have been amended, as per another notification, No. 5965/XI D.T. 3, dated September 21, 1939. Item 2, of Schedule B, of, these rules, provides for a list of articles being exempted from payment of Terminal Tax. The said item is as follows : "Railway stores and materials, which are required for use on Railways, whether in construction, maintaining or working the same and which are not removed outside the Railway land boundaries but not stores imported into Municipal limits for purchase and consumption by Railway employees nor stores with which Railway Cooperative Stores are stocked for sale to Member. " It is the claim of the appellant that, till 1961, the first respondent has never imposed any terminal tax, on 'railway stores and materials ' required for use on the railway of the appellant company, for the purposes mentioned in item 2 of Schedule B. But, for the first time, in January 1962, according to the appellant, the first respondent imposed tax on such stores and attempted to make the appellant liable. The appellant company protested against this levy, on the ground that, it being a railway, was entitled to the exemption provided in respect of 'railway stores and materials, which are required for use on railway '. But, the first respondent, by its order, dated October 11, 1962, over ruled the appellant 's objections in this regard. An appeal, taken by the appellant company, to the Additional District Magistrate, Saharanpur, under section 160 of the Municipalities Act, read with the relevant Rules, did not meet with success, as the said Magistrate rejected the appeal, by his order dated May 25, 1965. The appellant company filed Civil Miscellaneous Writ No. 3567 of 1965, in the High Court of Allahabad, challenging the levy of terminal tax and claimed exemption, under item 2, of Schedule B, referred to earlier. The learned Judges of the Allahabad High Court, by their judgment, dated September 10, 1965, dismissed 246 the writ petition. They were of the view that the appellant company was not 'a railway ', but 'a tramway ' constructed tinder the Tramways Act. In this connection, the learned Judges adverted to the Railways Act, which defines both the terms 'tramway ' and ' railway '. It is their view that when a tramway and a railway, are both separately defined in an Act, a tramway cannot also be a railway. The learned Judges, of the High Court, then referred to the fact that so far as the appellant company was concerned, the Central Government had not applied section 135 of the Railways Act, though all the other provisions of that Act had been applied. They further held that a mere application of the Railways Act, in whole or in part, to a tramway, will not convert the tramway into a railway and that, in order to be a railway, it has to be opened, in accordance with the provisions contained in Chapter IV, of the Railways Act. So, they concluded that, inasmuch as the appellant railway was not opened, in accordance with the provisions of the Railways Act, it had been, from its inception, and it continued to be, not a railway, but only a tramway. On this line of reasoning, the High Court further held that in the rules framed by the Municipal Board, the expression 'railway ' must be intended to refer only to 'railways ' coming under the Railways Act, and could not include a 'tramway ', like the appellant, opened under the Tramways Act. In consequence, the claim of the appellant, for exemption, was, according to the High Court, rightly rejected by the authorities. The result was the dismissal of the appellant 's writ petition, by the High Court. We shall now refer to the main features of the appellant company. The appellant railway is worked by steam, or other mechanical power, and is not wholly within a Municipal area. The railway line comprises narrow gauge track of 2 6" gauge, and consists of main line, transportation sidings and commercial sidings. 'Me line passes through four districts viz. Saharanpur, Muzaffarnagar, Meerut and Delhi, within the provinces of Uttar Pradesh and Delhi. The system has about 155 level crossings, comprising of Special Class, A class, B class and C class. Some of the level crossings are provided with signalling and interlocking arrangements and the system takes in 406 bridges, and 26 railway stations ' in all. The bridges and culverts are maintained, in accordance with the instructions contained in 'Way and Works Manual ' of the Indian Railways, and the railway stations are fitted with Morse speakers and instruments, for working trains, as per general rules applicable to all railways. There is annual inspection of the railway line, by the Additional Commissioner of Railways Safety, appointed by the Government, to inspect Indian Railways. There are arrangements for through booking of goods and passengers. From 247 what is stated above, it will be seen that the appellant company is a 'railway ', as commonly understood, and described in ordinary parlance. The Tramways Act was an Act passed to facilitate the con struction and to regulate the working of Tramways. Section 3(5) defines 'tramway ' as follows : " 'tramway ' means a tramway having one, two or more rails, and includes (a)any part of a tramway, or any siding, turnout, connection, line or track belonging to a tramway; (b) any electrical equipment of a tramway; and (c) any electric supply line transmitting power from a generating station or sub station to a tramway or from a generating station to a sub station from which power is transmitted to a tramway. " The expression 'order ', under section 3(6), means an order authorizing the construction of a tramway under the Act, and includes a further Order substituted for, or amending, extending or varying, that order. There are various other provisions in this Act relating to the construction and maintenance of tramways, orders authorizing the construction of tramways, and other incidental matters. The Railways Act was an Act to consolidate, amend and add to the law relating to Railways in India. Section 3(1) defines 'tramway ' as meaning a tramway constructed under the Tramways Act. or any special Act relating to tramways. Section 3(4) defines 'railways ' and is as follows " railway ' means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes (a)all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway; (b)all lines of rails, sidings or branches worked over for thepurposes of, or in connection with, a railway; (c)all stations, offices, warehouses, wharves, work shops,manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway; and (d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the autho rity administering the railway. " 248 This Act also contains various provisions relating to the opening of railways, inspection of railways, construction and maintenance of works, working of railways and several other incidental matters. Section 135, occurring in Chapter X, containing supplemental provisions, relates to taxation of railways by local authorities. That section reads : " 135. Notwithstanding anything to the contrary in any enactment, or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways and from railway adminis trations in aid of the funds of local authorities, namely : (1)A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the Central Government has, by notification in the Official Gazette, declared the railway administration to be liable to pay the tax. (2)While a notification of the Central Government under clause (1) of this section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or, in lieu thereof, such sum, if any, as an officer appointed in this behalf by the Central Government may, having regard to all the circumstances of the case, from time to time determine to be fair and reasonable. (3)The Central Government may at any time re voke or vary a notification under clause (1) of this section. (4)Nothing in this section is to be construed as debarring any railway administration from entering into a contract with any local authority for the supply of water or light, or for the scavenging of railway premises, or for any other service which the local authority may be rendering or be prepared to render within any part of the local area under its control. (5) 'Local authority ' in this section means a local authority as defined in the General Clauses Act, 1887, and includes any authority legally entitled to or entrusted with the control or management of any fund for the maintenance of watchmen or for the conservancy of a river. " The point to be noted, in this provision, is that unless a notification has been issued by the Central Government, under sub section (1) of section 135, declaring a railway administration to be liable to pay a tax, a railway administration shall not be liable to pay any tax in 249 aid of the funds of any local authority. Section 146, giving power to the Government to extend the Railways Act to certain tramways, is as follows: "146. (1) This Act or any portion thereof may be extended by notification in the Official Gazette (a) to any tramway which is wholly within a municipal area or which is declared not to be a railway under clause (20) of article 366 of the Constitution, by the State Government; and (b) to any other tramway, by the Central Government. (2) This section does not apply to any tramway not worked by steam or other mechanical power. " We have already pointed out that all the provisions of the Railways Act, except section 135, have been extended to the appellant company. The next enactment to be referred to is the (Act X of 1895), which provided for the payment, by railway companies, registered under the Indian Companies Act, 1 882, of interest out of capital during construction. Section 2(1) defines 'railway ' as meaning a railway as defined in section 3, cl. (4) of the Railways Act. Section 3 provided for a railway company paying interest on its paid up share capital, out of capital, for the period, and subject to the conditions and restrictions contained in that section. There are other consequential provisions, in this Act. The (Act IV of 1902) was one to apply the provisions of the , to certain tramway companies. The preamble to this Act IV of 1902, stated that it was expedient to apply the provisions of the , to companies formed for the construction of tramways 'not differing in structure and working from light railways '. This preamble will clearly show that, even as early as 1902, the Legislature considered that though certain systems were called 'tramways, substantially they did not differ, in structure and working, from light railways. The expression 'railway ' is defined, in section 311(2) of the Government of India Act, 1935, as follows : " railway ' includes a tramway not wholly within a municipal area. " It is to be noted that if a system, though a tramway, is wholly not within a municipal area, that system will be a 'railway '. Entry 250 58, of List 1 (Federal List) of the Seventh Schedule to the 1935 Act, was : "Terminal taxes on goods or passengers carried by railway or air; taxes on railway fares and freights. " It is, again, to be noted, that under this Entry, in respect of a tramway, which is not wholly within a municipal area and which will, therefore, be a 'railway ', under section 311(2), the levy of terminal tax on goods or passengers carried by such a system, will be within the competence of the Federal Legislature. Under article 366(20) of the Constitution, the expression 'rai lway ' is dealt with, as follows : " railway ' does not include (a) a tramway wholly within a municipal area, or (b) any other line of communication wholly situate in one State and declared by Parliament by law not to be a railway. " It may be noted here that the appellant 's system does not come within the exclusions mentioned in cls. (a) or (b) of this definition. Entry 89 of List 1 (Union List), of the Seventh Schedule to the Constitution, is as follows : "Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights." ' It may be noted that the competent legislative body to levy terminal taxes on goods or passengers, carried by the appellant 's system, which will be a 'railway ', under article 366(20), is the Parliament. The only other Act to be referred to is the (Act XXV of 194 1 ), which was an Act to regulate the extent to which railway property shall be liable to taxation imposed by an authority. Section 3(1) of that Act provided that a railway administration shall be liable to pay any tax in aid of the funds of any local authority, if the Central Government, by notification in the Official Gazette, declared it to be so liable. Section 4 provided for the Central Government, by notification in the Official Gazette, revoking or varying any notification issued under section 135(1) of the Railways Act. The learned Additional Solicitor General, appearing for the appellant, pointed out that the expression 'railway ' had not been defined in the United Provinces Municipalities Act, or in the Terminal Tax Rules. 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 and goods, on iron rails '. By virtue of the definition, in section 311(2) of the 1935 Act, and the provision, 251 corresponding to it, in the Constitution, viz., article 366(20), the appellant 's system, though registered under the Tramways Act, was a railway. The mere fact that section 135, of the Railways Act, had not been applied to the appellant 's system, is not a decisive factor against the appellant, as had been assumed by the High Court. In view of the various features of the appellant 's system, and pointed out by us earlier, it is argued that the appellant 's system is a 'railway ', both in law and in fact. It satisfies all the ingredients of a railway and, if that is so, the appellants are entitled to the exemption provided for, under item 2 of Schedule B, of the Terminal Tax Rules. On the other hand, Mr. Garg, learned counsel appearing for the respondent Board, pressed before us for acceptance the various reasons, given by the High Court, for holding that the appellant is not entitled to claim be exemption. In particular, counsel pointed out that there were two different enactments, one dealing with 'tramways ' and the other with 'railways ', being the Tramways Act and the Railways Act, respectively. Therefore, there were two diff erent systems, under two different names, namely 'tramways ' and 'railways ', which was clearly known to the authorities concerned at the time when the Terminal Tax Rules were framed, and so when the expression 'railway ' was used in the exemption clause, it must have been the intention of the framers of the Rules to bring, within its ambit, only the 'railways ' constructed under the Railways Act. The appellant 's system, though called a 'railway ' and though it might have ill the features of i railway, it is pointed out, nevertheless, that inasmuch is it has been constructed under a different enactment, viz., the Tramways Act, it cannot be treated as a 'railway ' for the purposes of the exemption. Counsel also stressed that section 135 of the Railways Act had not been applied to the appellant. We are not impressed with the approach made by the learned Judges of the High Court, for negativing the claim for exemption, made by the appellant. It must be borne in mind that the expression 'railway has not been defined either in the concerned Municipalities Act, orthe Rules; if such is the case. , the definition must hold the field. Going by the definition of the expression ' railway ', containedin section 311(2) of the Government of India Act, 1935, and the corresponding provision in article 366(20) of the Constitution, the appellant 's system is a 'railway '. All the provisions of the Railways Act have been extended to the appellant, excepting section 135. In our opinion, if the appellant is a 'railway ', otherwise, the mere fact that the provisions of section 135, of the Railways Act, have not been applied, is of no consequence. We have already referred to the fact, which is not in dispute, that the appellant 's railway passes through four districts in U.P. and 252 Delhi, and that it has got all the features of a railway, as ordinarily understood. In this connection, we may refer to certain English decisions, where the claim, made on behalf of a system, for being taxed at a concessional rate, had come up for consideration. In Blackpool and Fleetwood Tramroad Company vs Thornton Urban Council(1), the Court of Appeal had to consider as to how far the Blackpool & Fleetwood Tramroad Company, the appellant before them, was entitled to the assessment, at a lower rate under section 211 (1) (b), of the Public Health Act, 1875 (38 & 39 Viet. c. 55). The material portion of that section was : "the occupier of any land . used only as a canal . or as a railway, constructed under the powers of any Act of Parliament, for public conveyance, shall be assessed in respect of the same in the proportion of one fourth part only of the net annual value thereof. " The question was as to whether the appellant, in that case, was a 'railway ', to whom the said provision would apply. The appellant company had constructed and maintained a tramroad connecting two systems of tramways, under the local Acts of 1896 and 1898. Various provisions of the Railways Clauses Consolidation Act, 1845, had been applied to the tramroad. The tramroad, in that case, was on rails laid on sleepers, fenced off from adjoining land, excepting at the level crossings of roads. The Divisional Court had rejected the claim of the appellant; but the Court of Appeal held that the tramroad was land 'used only as a railway constructed under the power of an Act of Parliament for public conveyance, within the meaning of section 21 1 (1)(b) of the Public Health Act, 1875, and that the company was, consequently, entitled to be assessed, in respect of the said 'railway ', at onefourth of its net annual value. The appellants contended that the tramroad was and could only be worked as a railway and was, in fact and in law, used as a railway, and, in consequence, they urged that the tramroad, maintained by them, is 'land ' used only as a railway. The Court of Appeal noted that the rails were raised and laid on sleepers, just as a railway is laid, and that was the main distinction between the appellant 's system, and a tramway, which ran along public streets and in grooved rails. No doubt, it was pointed out for the Urban Council, that the appellant company had been incorporated under the Tramways Act and the very fact that certain provisions of the Railway Clauses Consolidation Act were applied to the appellant 's system showed that the appellant was not a railway. The Court of Appeal held that it was impossible to distinguish the piece of tramroad, owned by the (1) L. R. [190711 K.B.D. 568. 253 appellants, from a railway and that the exemption provided for in the Public Health Act applied to the tramroad of the appellants as it would, to any ordinary railroad passing through parts where it was not deriving the full benefit from the district rates in those parts. The Court of Appeal also rejected the contention of the Urban Council that the tramroad, owned by the appellants could be treated as a 'railway ' only for particular purposes, and not for the purpose of claiming the exemption under the Public Health Act; because, according to the Court of Appeal, a reading of section 211 (1) (b) of the Public Health Act, showed that it applied to land used as a railway, i.e., constructed as a railway in fact. This decision was taken up in further appeal, before the House of Lords, whose decision is reported as Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company(1), and the decision of the Court of Appeal was confirmed. In the course of the judgment, after referring to section 211 of the Public Health Act, Lord Macnaghten observed, at p. 267 : "Now it cannot be denied that the rails on which the tramcars run, with the embankment or foundation on which they rest, and everything that supports them, do form a road or way, and that that road or way was constructed under parliamentary powers for public conveyance. Is it 'a railway '? There is nothing in the Public Health Act, 1875, or in the earlier Acts, in which the same provision is found, to confine the word ' railway ' as used in those Acts to a particular kind of railway, or to limit the generality of the expression in any way. " His Lordship, further observed at p. 268 : "It seems to me that if it is a railway in fact, not differing from other railways in any material particular, it is nonetheless a railways because the promoters in their special Act chose to call it a 'tramroad ' a very convenient term to use for the title of their Act and the name under which they sought incorporation. Nor is it the less a railway because some only of the sections of the Railways Clauses Consolidation Act are incorporated in the special Act, or because, if one did not know what the thing really was, the language used for the purpose of applying the sections which are incorporated might seem to import that it was not, properly speaking, a railway at all. You must look at the special Act to see that it confers the appropriate powers of construction. Every thing else in the Act is, I think, beside the question which this House has now to determine." (1) 254 In our opinion, the observations of the House of Lords, ex tracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression 'railway ', and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word 'railway ', in item 2 of Schedule B, is used only to refer to a 'railway ' registered under the Railways Act or to limit the generality of the expression 'railway ' in any way. Under those circumstances, if the appellant is a 'railway ' in fact, as commonly understood there does not appear to be any serious controversy on that point it will be a 'rail way ', notwithstanding the fact that it is registered as a 'tramway ', under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant, and the appellant also satisfies the definition of a 'railway ' under the Government of India Act, 1935, and the Constitution. The provisions of the , have also been applied to the tramways constructed, under the Tramways Act, by the Indian Tramway Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways, to which the Indian Railway Companies, Act was made applicable, '#,lo not differ in structure and working from railways '. The object underlying the exemption under item 2, of Sche dule B, to the Terminal Tax Rules, is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a 'railway ', so to be entitled to the exemption provided under item 2 of Schedule B. Before we close the discussion, we ",ill also refer to the decision of th House of Lords in Tottenham Urban Council vs Metropolitan Electric Tramways, Ltd.(1). The same question regarding the eligibility of a 'tramway ' for exemption, under section 21 1(1)(b) of the Public Health Act, 1 875, came up for consideration in that case. From the judgment, it will be seen that the company were working, as a connected system, a tramway and a light railway, which were constructed in and along certain public streets and roads, in the district of the urban Council. The 'tramway ' was constructed under the Tramway Acts and Orders and the 'railway, ' under the Light Railways Act, 1896. Both were identical as to the mode of construction and materials used. The claim of the company in respect of the 'railway ', as such, for assessment at a lower rate. was accepted; but, so far as the 'tramway ' ",as concerned, the House of Lords held that it is not a 'railway ', within the meaning of section 21 1(1)(b), of the Public Health Act, 1875. The (1) L. R. [1913]1 A. C. 702. 255 reason given by the House of Lords, for not accepting the claim of the tramway, was that in the great bulk of public legislation, relating to railways, the legislation has universally been understood and interpreted by Courts as applying only to that which is popularly known as a 'railway ', and not to that which is Popularly known as a 'tramway '. And special emphasis is laid by the House of Lords that the legislature has used the word 'railways ' and not 'railways and tramways ', in section 211 of the Public Health Act, 1875. We are only adverting to this decision to show that, on the basis of an interpretation placed by the Courts, the House of Lords held that the word 'railways ', in the Public Health Act, 1875, will not take in 'tramways '. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen from the Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a .railway '. In our opinion, the principles laid down by the House of Lords in Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company(1), apply to the particular matter on hand and, we hold that the appellant, being a 'railway ', is entitled to the exemption under item 2, of Schedule B, to the Terminal Tax Rules, in question. We, accordingly, allow the appeal and set aside the judgment of the High Court, and further direct that a writ will issue, as prayed for by the appellant. The appellant will be entitled to its costs, from the first respondent, both in this Court and in the High Court. G. C. Appeal allowed. [/INST]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. </s>

<s>[INST] Summarize the judgementAppeal No. 2376 of 1966. 355 356 Appeal from the judgment and order dated January 18, 1963 of the Madhya Pradesh High Court in Miscellaneous Petition NO. 267 of 1962. R.V.S. Mani, E.C. Agarwala and P.C. Agarwala,.for the appellant. B. Sen, M.N. Shroff for I.N. Shroff for the respondent. Shelat, J. Prior to December 17, 1947 the appellant was serving as an Overseer in the Public Works Department of the Central Provinces and Berar Government. On December 17, 1947 he was suspended from service and prosecuted under section .161 of the Penal Code. The trial resulted in his conviction but that was set aside in appeal on the ground that no proper sanction for prosecution was obtained. He was again prosecuted on the same charge but the Special Judge trying him quashed the chargesheet on the ground that the investigation had not been carried out by the proper authorities. In revision the High Court of Nagpur held that the Special Judge was in error in so holding but recommended that the prosecution should not be proceeded with as nearly 10 years had gone by since it was launched against the appellant. Following the recommendation the prosecution was dropped but a departmental inquiry was held on the same charges. The Inquiry Officer found the appellant not guilty but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed. By an order dated December 5, 1960 the Government held that the charges against the appellant were not proved beyond reasonable doubt. It also held that the suspension and the departmental inquiry "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 that, 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. On a representation made by him against the said order hav ing been rejected the appellant filed a petition under article 226 of the Constitution in the High Court of Madhya Pradesh for quashing the said order and for an order directing the Government to treat the period of absence from duty as period spent on duty under cl. 2 of the said Fundamental Rule and to revise the pension payable to him under that clause. The High Court dismissed the petition but granted certificate to file this appeal and that is how this appeal has come up before us. 357 Fundamental Rule 54 on the interpretation of which this appeal depends is as follows: "(1) When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order , (a) Regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty , (2) Where the authority 'Mentioned in sub rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3)In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. Provided that the payment of allowances under clause (2)or clause (3) shall be, subject to all other conditions under which such allowances are admissible. Provided other that such proportion of such pay and allowances ' all not be less than the subsistence and other allowances admissible under Rule 53. (4) In a case falling under clause (2), the period of absence from by shall be treated as a period spent on duty for all Purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty,unless such competent authority specifically directs that it shall be so treated for any specified purpose. Provided that if the Government servant so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the, Government servant. " On behalf of the appellant two points were urged before the High Court; (1) that before passing the impugned order the appellant ought to have been given a reasonable opportunity to show cause against the action proposed and (2) that it was clause 2 and not clause 5 which applied to his case. The High Court rejected both the contentions and, as aforesaid, dismissed the petition. 358 Counsel for the appellant canvassed the same contentions before us. Mr. Sen on behalf of the State. however, argued that F.R. 54 does not in express terms lay down a duty on the part of the authority to give an opportunity to show cause to the government employee and therefore the question would be whether the Rule imposed such a duty by necessary implication. He urged that the Rule cannot be said to lay down such duty by implications inasmuch as the impugned order is only a consequential order. That it was passed following a departmental inquiry held against the appellant during the course of which opportunity to show cause was already afforded. He contended that the only duty laid down by FR. 54 was that the Government should, consider whether the appellant was fully exonerated and in case of suspension whether such suspension was wholly unjustified and that once the authority formed the opinion that it was not so cls. 3 and 5 would apply. The Government having formed the opinion that the suspension was not wholly unjustified clans 5 applied and the impugned order was not liable to be challenged. The first question which requires consideration is whether there was a duty on the competent authority to afford an opportunity to the appellant to show cause before that authority formed the opinion as to whether he was fully exonerated and whether his suspension was wholly unjustified. Under F.R. 54 where a Government servant is reinstated, the authority has to consider and make a specific order (i) regarding pay and allowances payable to him for the period of his absence from duty and (ii) whether such period of absence should be treated as one spent on duty. The consideration of these questions depends on whether on the facts and circumstances of the case the Government servant had been fully exonerated and in case of pension whether it was wholly unjustified. If the authority forms such an opinion the Government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot form such an opinion the Government servant may be given such proportion of pay an allowances as the authority may prescribe. In the former case the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the government servant would be entitled to full pay and allowances. It is true that the order under FR. 54 in a sense a con sequential order in that it would be passed aft an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the government servant has to be given an opportunity to show cause or not. It is also true 359 that in. a case where reinstatement is ordered after a departmental inquiry the government servant would Ordinarily have had an opportunity, to show: cause. In such a case, the authority no doubt ,would have before him the entire record including the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has been fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such a case the order passed under a rule such as the present Fundamental Rule might be said to be a consquential order following a departmental inquiry. But there are, three classes of cases as laid down by the proviso in article 311 where a departmental inquiry would not be held, viz., (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered. to dismiss or remove person or to reduce him in rank is satisfied for reasons to be record in writing that it is not reasonably practicable to hold such an inquiry; and (c) where the President or the Governor as the case may be is satisfied, that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the ' government servant. The authority in such cages would have to consider and pass the ' order merely on such facts which might be placed before him by the department concerned. The order in such a case Would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore, aft order passed under Fundamental Rule 45 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee. It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under cl. 2 or cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and. his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under cls. 3 and 5. Consideration under this rule 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. 360 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 present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. In the State of Orissa vs Dr. (Miss) Binapani Devi and others(1) this Court held that an order fixing the date of birth of the government servant concerned there and declaring that she should be deemed to have retired on a particular date on the basis of the date so determined without giving an opportunity to show cause against the action proposed was invalid on the ground that the determination was in violation of the principles of natural justice. It was there observed: "The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an inquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth. But the decision of the State could be based upon the result of an enquiry in a manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his pre judice. " We find that the High Court of Maharashtra has also taken in V. R. Gokhale vs State of Maharashtra(2) the same view which we are inclined to take of the nature of function under R. 152 of the Bombay Civil Service Rules, 1959, a rule in terms identical to those of F.R. 54 before us. In our view, F.R. 54 contemplates a duty to act in accord ance with the basic concept of justice and fairplay. The authority therefore had to afford a reasonable opportunity to the appellant to show cause why cls. 3 and 5 should not be applied and that having not been done the order must be held to be invalid. (1) ; (2) I.L.R. 361 The appeal is allowed and the High Court 's order is set aside. The competent authority is directed to consider the question de novo after giving to the appellant a reasonable opportunity to show cause against the action proposed against him. The respondent will pay to the appellant costs of this appeal as also the costs of the petition in the petition in the High Court. G.C Appeal allowed. [/INST]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. </s>

<s>[INST] Summarize the judgementAppeals Nos. 71 to 76 of 1953. Appeals under article 132(1) of the Constitution of India from the Judgment and Order dated 30th January, 1953, of the Orissa High Court in Original Jurisdiction Cases Nos. 13, 14, 15, 16, 25 and 26 of 1952. The facts of the case appear in the judgment. B. Somayya (K. B. Krishnamurthi, with him) for the appellant in Civil Appeal No. 71 of 1953. B. Somayya (D. Narasaraju and N. Y. Ramdas, with him) for the appellant in Civil Appeal No. 72 of 1953. D. Narasaraju and A. Krishnaswami (N. V. Ramdas, with them) for the appellant in Civil Appeal No. 73 of 1953. D. Narasaraju (N. V. Ramdas, wit him) :for the appellant in Civil Appeal No. 76 of 1953. D. V. Narasinga Rao for the appellant in Civil Appeal No. 75 of 1953. R. Patnaik for the appellant in Civil Appeal No. 74 of 1953. M. C. Setalvad, Attorney General for India, and Pitambar Misra, Advocate General of Orissa (P. A. Mehta, with them) for the respondent. May 29. The Judgment of the Court was delivered by MUKHERJEA J. 4 MUKHERJEA J. These six appeals arise out of as many applications, presented to the High Court of Orissa, under article 226 of the Constitution, by the proprietors of certain permanently settled estates within the State of Orissa, challenging the constitutional validity of the legislation known as the Orissa Estates Abolition Act of 1952 (hereinafter called "the Act") and praying for mandatory writs against the State Government restraining them from enforcing the provisions of the Act so far as the estates owned by the petitioners are concerned. The impugned Act was introduced in the Orissa State Legislature on the 17th of January, 1950, and was passed by it on the 28th September, 1951. It was reserved by the State Governor for consideration of the President and the President gave his assent on 23rd January, 1952. The Act thus receives the protection of articles 31(4) and 31A of the Constitution though it was not and could not be included in the list of statutes enumerated in the ninth schedule to the Constitution, as referred to in article 31B. The Act, so far as its main features are concerned, follows the pattern of similar statutes passed by the Bihar, Uttar Pradesh and Madhya Pradesh Legislative Assemblies. The primary purpose of the Act is to abolish all zemindary and other proprietary estates and interests in the State of Orissa and after eliminating all the intermediaries, to bring the ryots or the actual occupants of the lands in direct contact with the State Government. It may be convenient here to refer briefly to some of the provisions of the Act which are material for our present purpose. The object of the legislation is fully set out in the preamble to the Act which discloses the public purpose underlying it. Section 2(g) defines an "estate" as meaning any land held by an intermediary and 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 a district. The expression "intermediary" with reference to any estate is then defined and it 5 means a proprietor, sub proprietor, landlord, landholder . thikadar, tenure holder, under tenure holder and includes the holder of inam estate, jagir and maufi tenures and all other interests of similar nature between the ryot and the State. Section 3 of the Act empowers the State Government to declare, by notification, that the estate described in the notification has vested in the State free from all encumbrances. Under section 4 it is open to the State Government, at any time before issuing such notification, to invite proposals from "intermediaries" for surrender of their estates and if such proposals are accepted, the surrendered estate shall vest in the Government as soon as the agreement embodying the terms of surrender is executed. The consequences of vesting either by issue of notification or as a result of surrender are described in detail in section 5 of the Act . It would be sufficient for our present purpose to state that the primary consequence is that all lands comprised in the estate including communal lands, non ryoti lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks, water channels, fisheries, ferries, hats and bazars, and buildings or structures together with the land on which they stand shall, subject to the other provisions of the Act, vest absolutely in the State Government free from all encumbrances and the intermediary shall cease to have any interest in them. Under section 6, the intermediary is allowed to keep for himself his homestead and buildings and structures used for residential or trading purposes such as golas, factories, mills, etc., but buildings used for office or estate purposes would vest in the Government. Section 7 provides that an intermediary will be entitled to retain all lands used for agricultural or horticultural purposes which are in his kha 's possession at the date of vesting. Private lands of the intermediary, which were held by temporary tenants under him, would however vest in the Government and the temporary tenants would be deemed to be tenants under the Government, except where the intermediary himself holds less than 33 acres of land in any capacity. As 6 regards the compensation to be paid for the compulsory acquisition of the estates, the principle adopted is that the amount of compensation would be calculated at a certain number of years ' purchase of the net annual income of the estate during the previous agricultural year, that is to say, the year immediately preceding that in which the date of vesting falls. First of all, the gross asset is to be ascertained and by gross asset is meant the aggregate of the rents including all cesses payable in respect of the estate. From the gross asset certain deductions are made in order to arrive at the net income. These deductions include land revenue or rent including cesses payable to the State Government, the agricultural 'income tax payable in the previous year, any sum payable as chowkidary or municipal tax in respect of the buildings taken over as office or estate buildings and also costs of management fixed in accordance with a sliding percentage scale with reference to the gross income. Any other sum payable as income tax in respect of any other kind of income derived from the estate would also be included in the deductions. The amount of compensation thus determined is payable in 30 annual equated instalments commencing from the date of vesting and an option is given to the State Government to make full payment at any time. These in brief are the main features of the Act. There was a fairly large number of grounds put forward on behalf of the appellants before the High Court in assailing the validity of the Act. It is to be remembered that the question of the constitutional validity of three other similar legislative measures passed, respectively, by the Bihar, Uttar Pradesh and Madhya Pradesh Legislative Assemblies had already come for consideration before this court and this court had pronounced all of them to be valid with the exception of two very minor provisions in the Bihar Act. In spite of all the previous pronouncements there appears to have been no lack of legal ingenuity to support the present attack upon the Orissa legislation, and as a matter of fact, much of the arguments put forward on behalf of the appellants purported to have been based 7 on the majority judgment of this court in the Bihar appeals, where two small provisions of the Bihar Act were held to be unconstitutional. The arguments advanced on behalf of the appellants before the High Court have been classified by the learned Chief Justice in his judgment under three separate heads. In the first place, there were contentions raised, attacking the validity of the Act as a whole. In the second place, the validity of the Act was challenged as far as it related to certain specified items of property included in an estate, e.g., private lands, buildings, waste lands, etc. Thirdly, the challenge was as to the validity of certain provisions in the Act relating to determination of compensation payable to the intermediary, with reference either to the calculation of the gross assets or the deductions to be made therefrom for the purpose of arriving at the net income. The learned Chief Justice in a most elaborate judgment discussed all the points raised by the appellants and negatived them all except that the objections with regard to some of the matters were kept open. Mr. Justice Narasimham, the other learned Judge in the Bench, while agreeing with the Chief Justice as to other points, expressed,, in a separate judgment of his own, his suspicion about the bona fides of the Orissa Agricultural Income tax (Second Amendment) Act, 1950, and he was inclined to hold that though ostensibly it was a taxation measure, it was in substance nothing else but a colorable device to cut down drastically the income of the intermediaries so as to facilitate further reduction of their net income as provided in clause (b) of section 27(1) of the Act. He, however, did not dissent from the final decision arrived at by the Chief Justice, the ground assigned being that whenever there is any doubt regarding the constitutionality of an enactment, the doubt should always go in favour of the legislature. The result was that with the exception of the few matters that were kept open, all the petitions were dismissed. The proprietors have now come before us on appeal on the strength of certificates granted by the High Court under articles 132 and 133 8 of the Constitution as well as under section 110 of the Code of Civil Procedure. No contention has been pressed before us on behalf of the appellants attacking the constitutional validity of the Act as a whole. The arguments that have been advanced by the learned counsel for the appellants can be conveniently divided under three heads: In the first place, there has been an attack on the validity of the provisions of two other statutes, namely, the Orissa Agricultural Income tax (Amendment) Act, 1950, and the Madras Estates Land (Amendment) Act, 1947, in so far as they affect the calculation of the net income of an estate for the purpose of determining the compensation payable under the Act. In the second place, the provisions of the Act have been challenged as unconstitutional to the extent that they are applicable to private lands and buildings of the proprietors, both of which vest as parts of the estate, under section 5 of the Act. Lastly, the manner of payment of compensation money, as laid down in section 37 of the Act, has been challenged as invalid and unconstitutional. Under the first head the appellants ' main contention relates to the validity of the Orissa Agricultural Income tax (Amendment) Act of 1950. This Act, it is said, is not a bona fide taxation statute at all, but is a colorable piece of legislation, the real object of which is to reduce, by artificial means, the net income of the intermediaries, so that the compensation payable to them under the Act might be kept down to as low a figure as possible. To appreciate this contention of the appellants, it would be necessary to narrate a few relevant facts. Under section 27 (1)(b) of the Act, any sum payable in respect of an estate as agricultural income tax, for the previous agricultural year, constitutes an item of deduction which has to be deducted from the gross asset of an estate for the purpose of arriving at its net income, on the basis of which the amount of compensation is to be determined. The Estates Abolition Bill was published in the local gazette on 3rd January 1950, As has been said 9 already, it was introduced in the Orissa Legislative Assembly on the 17th of January following and it was passed on the 28th September, 1951. There was an Agricultural Income tax Act in force in the State of Orissa from the year 1947 which provided a progressive scale of taxation on agricultural income, the highest rate of tax being 3 annas in the rupee on a slab of over Rs. 30,000 received as agricultural income. On 8th January, 1950, that is to say, five days after the publication of the Abolition Bill, an amended agricultural income tax bill was published in the official gazette. At that time Mr. H. K. Mahtab was the Chief Minister of Orissa and this bill was sponsored by him. The changes proposed by this Amendment Act were not very material. The highest rate was enhanced from 3 annas to 4 annas in the rupee and the highest slab was reduced from Rs. 30,000 to Rs. 20,000. For some reason or other, however, this bill was dropped and a revised bill was_ published in the local gazette on 22nd July, 1950, and it passed into law on 10th of August following. This new Act admittedly made changes of a very drastic character regarding agricultural income tax. The rate of taxation was greatly enhanced for slabs of agricultural income above Rs. 15,000 and for the highest slab the rate prescribed was as much as 12 annas 6 pies in the rupee. It was stated in the statement of objects and reasons that the enhanced agricultural income was necessary for financing various development schemes in the State. This, it is said, was wholly untrue for it could not be disputed that almost all the persons who came within the higher income group and were primarily affected by the enhanced rates were intermediaries under the Estates Abolition Bill which was at that time before the Select Committee and was expected to become law very soon, and as the legislature had already definitely decided to extinguish this class of intermediaries, it was absurd to say that an increased taxation upon them was necessary for the development schemes. The object of this amended legislation, according to the appellants, was totally different from what it ostensibly purported 2 10 to be and the object was nothing else but to use it as a means of effecting a drastic reduction in the income of the intermediaries, so that the compensation payable to them may be reduced almost to nothing. This change in the provisions of the Agricultural Income tax Bill, it is further pointed out, synchronized with a change in the Ministry of the Orissa State. The original amended bill was introduced by the then Chief Minister, Mr. H. K. Mahtab, who was in favour of allowing suitable compensation to expropriated zemin. dars; but his successor, who introduced the revised bill, was said to be a champion of the abolition of zemindary rights with little or no compensation to the proprietors. In these circumstances, the argument of the learned counsel is that the agricultural income tax legislation being really not a taxation statute but a mere device for serving another collateral purpose constitutes a fraud on the Constitution and as such is invalid, either in its entirety, or at any rate to the extent that it affects the estate abolition scheme. We have been referred to a number of decisions on this point where the doctrine of colourable legislation came up for discussion before courts of law; and stress is laid primarily upon the pronouncement of the majority of this court in the case of The State of Bihar vs Maharaja Kameshwar Singh and Others (1) which held two provisions of the Bihar Land Reforms Act, namely, sections 4(b) and 23 (f) to be unconstitutional on the ground, among others, that these provisions constituted a fraud on the Constitution. The fact that the provisions in the amended Agricultural Income tax Act were embodied in a separate statute and not expressly made a part of the Abolition Act itself should not, it is argued, make any difference in principle. As the question is of some importance and is likely to be debated in similar cases in future, it would be necessary to examine the precise scope and meaning of what is known ordinarily as the doctrine of "colourable legislation". It may be made clear at the outset that the doctrine of colourable legislation does not involve any question (1) of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power( ' (1). A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction. If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colorable legislation" has been applied in certain Judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise. As was said by Duff J. in Attorney General for Ontario vs Reciprocal Insurers and Others(2), "Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation (1) Vide Cooley 's Constitutional Limitations Vol. I. p. 379. (2) at 337. 12 for the purpose of determining what is that the legislature is really doing. " In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method. In cases like these, the enquiry must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authority(1). For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design(1). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise its powers. It is said by Lefroy in his well known work on Canadian Constitution that even if the legislature avow on the face of an Act that it intends thereby to legislate in reference to a subject over which it has no jurisdiction, yet if the enacting clauses of the Act bring the legislation within its powers, the Act cannot be considered ultra vires(3). In support of his contention that the Orissa Agricultural Income tax (Amendment) Act of 1950 is a colorable piece of legislation and hence ultra vires the Constitution, the learned counsel for the appellants, as said above, placed considerable reliance upon the majority decision of this court in the case of The State of Bihar vs Sir Kameshwar Singh(4), where two clauses (1) Vide Attorney General for Ontario vs Reciprocal Insurers and Others, at 337. (2) Vide Attorney General for Alberta vs Attorney General for Canada, [19391 A.C. I 17 at 130. (3) See Lefroy on Canadian Constitution, page 75. (4) 13 of the Bihar Land Reform Act were held to be un constitutional as being colourable exercise of legislative power under entry 42 of List III of Schedule VII of the Constitution. The learned counsel has also referred us, in this connection, to a number of cases, mostly of the Judicial Committee of the Privy Council, where the doctrine of colourable legislation came up for consideration in relation to certain enactments of the Canadian and Australian legislatures. The principles laid down in these decisions do appear to us to be fairly well settled, but we do not think that the appellants in these appeals could derive much assistance from them. In the cases from Canada, the question invariably has been whether the Dominion Parliament has, under colour of general legislation, attempted to deal with what are merely provincial matters, or conversely whether the Provincial legislatures under the pretence of legislating on any of the matters enumerated in section 92 of the British North America Act really legislated on a matter assigned to the Dominion Parliament. In the case of Union Colliery Company of British, Columbia Ltd. vs Bryden( ), the question raised was whether section 4 of the British Columbian Coal Mines Regulation Act, 1890, which prohibited China men of full age from employment in under ground coal working, was, in that respect, ultra vires of the Provincial legislature. The question was answered in the affirmative. It was held that if it was regarded merely as a coal working regulation, it could certainly come within section 92, sub section (10) or (13), of the British North America Act; but its exclusive application to Chinamen, who were aliens or naturalised subjects, would be a statutory prohibition which was within the exclusive authority of the Dominion Parliament, con ferred by section 91, sub section (25), of the Act. As the Judicial Committee themselves explained in a later case(2), the regulations in the British Columbian Act "were not really aimed at the regulation of coal mines at all, but were in truth a device to deprive the Chinese, (1) (2) Vide Cunningham vs Tomeyhomma at 157. 14 naturalised or not, of the ordinary rights of the inhabit ants of British Columbia and in effect to prohibit their continued residence in that province since it prohibited their earning their living in that province. " On the other hand, in ReInsurance Act of Canada(1), the Privy Council had to deal with the constitutionality of sections 11 and 12 of the Insurance Act of Canada passed by the Dominion Parliament under which it was declared to be unlawful for any Canadian company or an alien, whether a natural person or a foreign company, to carry on insurance business except under a licence from the Minister, granted pursuant to the provisions of the Act. The question was whether a foreign or British insurer licensed under the Quebec Insurance Act was entitled to carry on business within that Province without taking out a licence under the Dominion Act? It was held that sections 1 1 and 12 of the Canadian Insurance Act, which required the foreign insurers to be licensed, were ultra vires, since in the guise of legislation as to aliens and immigration matters admittedly within the Dominion authority the Dominion legislature was seeking to intermeddle with the conduct of insurance business which was a subject exclusively within the provincial authority. The whole law on this point was thus summed up by Lord Maugham in Attorney General for Alberta vs Attorney General for Canada(2): "It is not competent either for the Dominion or a Province under the guise, or the pretence, or in the form of an exercise of its own powers to carry out an object which is beyond its powers and a trespass on the exclusive power of the other." The same principle has been applied where the question was not of one legislature encroaching upon the exclusive field of another but of itself violating any constitutional guarantee or prohibition. As an illustration of this type of cases we may refer to the Australian case of Moran vs The Deputy Commissioner of Taxation for New South Wales(3). What happened (1)[1932] A.C. 41. (3) [1940]A.C.838. (2)[1939] A.C. 117 at 130. 15 in that case was that in pursuance of a joint Commonwealth and States scheme to ensure to wheat growers in all the Australian States "a payable price for their produce " a number of Acts were passed by the Commonwealth Parliament imposing taxes on flour sold in Australia for home consumption, so as to provide a fund available for payment of moneys to wheat growers. Besides a number of taxing statutes, which imposed tax on flour, the Wheat Industry Assistance Act No. 53 of 1938 provided for a fund into which the taxes were to be paid and of which certain payments were to be made to the wheat growers in accordance with State legislation. In the case of Tasmania where the quantity of wheat grown was relatively small but the taxes were imposed as in the other States, it was agreed as a part of the scheme and was provided by section 14 of the Wheat Industry Assistance Act that a special grant should be made to Tasmania, not subject to any federal statutory conditions but intended to be applied by the Government of Tasmania, in paying back to Tasmanian millers, nearly the whole of the flour tax paid by them and provision to give effect to that purpose was made by the Flour Tax Relief Act No. 40 of 1938 of the State of Tasmania. The contention raised was that these Acts were a part of a scheme of taxation operating and intended to operate by way of discriminating between States or parts of States and as such were contrary to the provisions of section 51(ii) of the Commonwealth Australian Constitution Act. The matter came up for consideration before a full court of the High Court of Australia and the majority of the Judges came to the conclusion that such legislation was protected by Section 96 of the Constitution, which empowered the Parliament of the Commonwealth to grant financial assistance to any State on such terms and conditions as the Parliament thought fit. Evatt J. in a separate judgment dissented from the view and held that under the guise of executing the powers under section 96 of the Constitution, the legislature had really violated the constitutional prohibition laid down in section 51(ii) of the Constitution. There was an appeal taken to the Privy Council. The Privy Council 16 affirmed the judgment of the majority but pointed out that " cases may be imagined in which a purported exercise of the power to grant financial assistance under section 96 would be merely colourable. Under the guise and pretence of assisting a State with money, the real substance and purpose of the Act might simply be to effect discrimination in regard to taxation. Such an Act might well be ultra vires the Commonwealth Parliament. " We will now come to the decision of the majority of this court regarding two clauses in the Bihar Land Reforms Act which seems to be the sheet anchor of the appellants ' case(1). In that case the provisions of sections 23(f) and 4(b) of the Bihar Land Reforms Act were held to be invalid by the majority of this court not on the ground that, in legislating on these topics, the State legislature had encroached upon the exclusive field of the Central legislature, but that the subjectmatter of legislation did not at all come within the ambit of item No. 42 of List III, Schedule VII of the Constitution under which it purported to have been enacted. As these sections did not come within entry 42, the consequence was that half of the arrears of rent as well as 12 '% of the gross assets of an estate were taken away, otherwise than by authority of law and therefore there was a violation of fundamental rights guaranteed by article 31 (1) of the Constitution. This was a form of colourable legislation which made these provisions ultra vires the Constitution. It may be stated here that section 23 of the Bihar Land Reforms Act lays down the method of computing the net income of an estate or a tenure which is the subject matter of acquisition under the Act. In arriving at the net income certain deductions are to be made from the gross asset and the deductions include, among others, revenue, cess and agricultural income tax payable in respect of the properties and also the costs of management. Section 23 (f) provided another item of deduction under which a sum representing 4 to 121 % of the gross asset of an estate was to be (1) Vide The State of Bihar vs Sir Kameshwar Singh, 17 deducted as "costs of works for benefit to the raiyat". The other provision contained in section 4 (b) provides that all arrears of rent which had already accrued due to the landlord prior to the date of vesting shall vest in the State and the latter would pay only 50% of these arrears to the landlord. Both these provisions purported to have been enacted under entry 42 of List III Schedule VII of the Constitution and that entry speaks of" principles on which compensation for property acquired is to be determined and the form and manner in which that compensation is to be given. " It was held in the Bihar case(1) by the majority of this court that the item of deduction provided for in section 23(f) was a fictitious item wholly unrelated to facts. There was no definable pre existing liability on the part of the landlord to execute works of any kind for the benefit of the raiyat. What was attempted to be done, therefore, was to bring within. the scope of the legislation something which not being existent at all could not have conceivable relation to any principle of compensation. This was, therefore, held to be a colourable piece of legislation which though purporting to have been made under entry 42 could not factually come within its scope. The same principle was held applicable in regard to acquisition of arrears of rent which had become due to the landlord prior to the date of vesting. The net result of this provision was that the State Government was given the power to appropriate to itself half of the arrears of rent due to the landlord without giving him any compensation whatsoever. Taking the whole and returning the half meant nothing more or less than taking the half without any return and this, it was held, could not be regarded as a principle of compensation in any sense of the word. It was held definitely by one of the learned Judges, who constituted the majority, that item 42 of List III was nothing but the description of a legislative head and in deciding the com petency of the legislation under this entry, the court is not concerned with the justice or propriety of the (1) 3 18 principles upon which the assessment of compensation is directed to be made; but it must be a principle of compensation, no matter whether it was just or unjust and there could be no principle of compensation based upon something which was unrelated to facts. It may be mentioned here that two of the three learned Judges who formed the majority did base their decision regarding the invalidity of the provision, relating to arrears of rent, mainly on the ground that there was no public purpose behind such acquisition. It was held by these Judges that the scope of article 31(4) is limited to the express provisions of article 31(2) and although the court could not examine the adequacy of the provision for compensation contained in any law which came within the purview of article 31(4), yet that clause did not in any way debar the court from considering whether the acquisition was for any public purpose. This view was not taken by the majority of the court and Mr. Narasaraju, who argued the appeals before us, did not very properly pursue that line of reasoning. This being the position, the question now arises whether the majority decision of this court with regard to the two provisions of the Bihar Act is really of any assistance to the appellants in the cases before us. In our opinion, the question has, got to be answered in the negative. In the first place, the line of reasoning underlying the majority decision in the Bihar case(1) cannot possibly have any application to the facts of the present case. The Orissa Agricultural Income tax (Amendment) Act of 1950 is certainly a legislation on " taxing of agricultural income " as described in entry 46 of List II of the Seventh Schedule. The State legislature had undoubted competency to legislate on agricultural income tax and the substance of the amended legislation of 1950 is that it purports to increase the existing rates of agricultural income tax, the highest rate being fixed at 12 annas 6 pies in the rupee. This may be unjust or inequitable, but that does not affect the competency of the legislature. It cannot be said, as was said in the Bihar case(1), that the legislation purported to be based (1) 19 on something which was unrelated to facts and did not exist at all. Both in form and in substance the Act was an agricultural income tax legislation and agricultural income tax is certainly a relevant item of deduction in the computation of the net income of an estate and is not unrelated to it as item No. 23(f) of the Bihar Act was held to be. If under the existing law the agricultural income tax was payable at a certain rate and without any amendment or change in the law, it was provided in the Estates Abolition Act that agricultural income tax should be deducted from the gross asset at a higher rate than what was payable under law, it might have been possible to argue that there being no pre existing liability of this character it was really a non existing thing and could not be an ingredient in the assessment of compensation. But here the Agricultural Income tax (Amendment) Act was passed in August, 1950. It came into force immediately thereafter and agricultural income tax was realised on the basis of the amended Act in the following year. It was, therefore, an existing liability in 1952, when the Estates Abolition Act came into force. It may be that many of the people belonging to the higher income group did disappear as a result of the Estates Abolition Act, but even then there were people still existing upon whom the Act could operate. The contention of Mr. Narasaraju really is that though apparently it purported to be a taxation statute coming under entry 46 of List II, really and in substance it was not so. It was introduced under the guise of a taxation statute with a view to accomplish an ulterior purpose, namely, to inflate the deductions for the purpose of valuing an estate so that the compensation payable in respect of it might be as small as possible. Assuming that it is so. still it cannot be regarded as a colourable legislation in accordance with the principles indicated above, unless the ulterior purpose which it is intended to serve is something which lies beyond the powers of the legislature to legislate upon. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do 20 directly. If a legislature is competent to do a thing directly, then the mere fact that it attempted to do it in an indirect or disguised manner, cannot make the Act invalid. Under entry 42 of List III which is a mere head of legislative power the legislature can adopt any principle of compensation in respect to properties compulsorily acquired. Whether the deductions are large or small, inflated or deflated they do not affect the constitutionality of a legislation under this entry ' The only restrictions on this power, as has been explained by this court in the earlier cases, are those mentioned in article 31(2) of the Constitution and if in the circumstances of a particular case the provision of article 31(4) is attracted to a legislation, no objection as to the amount or adequacy of the compensation can at all be raised. The fact that the deductions are unjust, exorbitant or improper does not make the legislation invalid, unless it is shown to be based on something which is unrelated to facts. As we have already stated, the question of motive does not really arise in such cases and one of the learned Judges of the High Court in our opinion pursued a wrong line of enquiry in trying to find out what actually the motives were which impelled the legislature to act in this manner. It may appear on scrutiny that the real purpose of a legislation is different from what appears on the face of it, but it would be a colourable legislation only if it is shown that the real object is not attainable to it by reason of any constitutional limitation or that it lies within the exclusive field of another legislature. The result is that in our opinion the Orissa Agricultural Income tax (Amendment) Act of 1950 could not be held to be a piece of colourable legislation, and as such invalid. The first point raised on behalf of the appellants must therefore fail. The other point raised by the learned counsel for the appellants under the first head of his arguments relates to the validity of certain provisions of the Madras Estates Land (Orissa Amendment) Act of 1947. This argument is applicable only to those estates which are 21 situated in what is known as ex Madras area, that is to say, which formerly belonged to the State of Madras but became a part of Orissa from 1st April, 1936. The law regulating the relation of landlord and tenant in these areas is contained in the Madras Estates Land Act of 1908 and this Act was amended with reference to the areas situated in the State of Orissa by the amending Act XIX of 1947. The provisions in the amended Act, to which objections have been taken by the learned counsel for the appellants, relate to settlement and reduction of rents payable by raiyats. Under section 168 of the Madras Estates Land Act, settlement of rents in any village or area for which a record of rights has been published can be made either on the application of the landholder or the raivats. On such application being made, the Provincial Government may at any time direct the Collector to settle fair and equitable rents in respect of the lands situated therein. Sub section (2) of section 168 expressly provides that in settling rents under this section, the Collector shall presume, until the contrary is proved, that the existing rate of rent is fair and equitable, and he would further have regard to the provisions of this Act for determining the rates of rent payable by raiyats. Section 177 provides that when any rent is settled under this chapter, it can neither be enhanced nor reduced for a period of 20 years, except on grounds specified in sections 30 and 38 of the Act respectively. The amending Act of 1947 introduced certain changes in this law. A new section, namely, section 168 A was. introduced and a further provision was added to section 177 as sub section (2) of that section, the original section being renumbered as sub section (1). Section 168 A of the amended Act runs as follows: (1) Notwithstanding anything contained in this Act the Provincial Government may, on being satisfied that the exercise of the powers hereinafter mentioned is necessary in the interests of public order or of the local welfare or that the rates of rent payable in money or in kind whether commuted, settled or 22 otherwise fixed are unfair or inequitable invest the Collector with the following powers: (a) Power to settle fair and equitable rents in cash; (b) Power, when settling rents to reduce rents if in the opinion of the Collector the continuance of the existing rents would on any ground, whether specified in this Act or not, be unfair and inequitable. (2) The power given under this section may be made exercisable within specified areas either generally or with reference to specified cases or class of cases. " Sub section (2) which has been added to section 177 stands thus: " 2(a) Notwithstanding anything in sub section (1) where rent is settled under the provisions of section 168 A, the Provincial Government may either retrospectively or prospectively prescribe the date on which such settlement shall take effect. In giving retrospective effect the Provincial Government may, at their discretion, direct that the rent so settled shall take effect from a date prior to the commencement of the Madras Estates Land (Orissa Amendment) Act, 1947. " The appellants ' contention is that by these amended provisions the Provincial Government was authorised to invest the Collector with power to settle and reduce rents, in any way he liked, unfettered by any of the rules and principles laid down in the Act and the Provincial Government was also at liberty to direct that the reduction of rents should take effect retrospectively, even with reference to a period for which rents had already been paid by the tenant. Under section 26 of the Orissa Estates Abolition Act, the gross asset of an estate is to be calculated on the basis of rents payable by raiyats for the previous agricultural year. According to the appellants, the State Government made use of the provisions of the amended Madras Estates Land (Orissa Amendment) Act to reduce arbitrarily the rents payable by raiyats and further to make the reduction take effect retrospectively, so that the diminished rents could be reckoned 23 as rents for the previous year in accordance with the provision of section 26 of the Estates Abolition Act and thus deflate the basis upon which the gross asset of an estate was to be computed. It is conceded by the learned counsel for the appellants that the amendments in the Madras Estates Land Act are no part of the Estates Abolition Act of Orissa and there is no question of any colourable exercise of legislative powers in regard to the enactment of these provisions. The legislation, however, has been challenged, as unconstitutional, on two grounds. First of all, it is urged that by the amended sections mentioned above, there has been an improper delegation of legislative powers by the legislature to the Provincial Government, the latter being virtually empowered to repeal existing laws which govern the relations between landlord and tenant in those areas. The other ground put forward is that these provisions offend against the equal protection clause embodied in article 14 of the Constitution. It is pointed out that the Provincial Government is given unfettered discretion to choose the particular areas where the settlement of rent is to be made. The Government has also absolute power to direct that the reduced rents should take effect either prospectively or retrospectively in particular cases as they deem proper. It is argued that there being no principle of classification indicated in these legislative provisions and the discretion vested in the Government being an uncontrolled and unfetter ed discretion guided by no legislative policy, the pro visions are void as repugnant to article 14 of the Con stitution. In reply to these arguments it has been contended by the learned Attorney General that, apart from the fact as to whether the contentions are well founded or not, they are not relevant for purposes of the present case. The arguments put forward by the appellants are not grounds of attack on the validity of the Estates Abolition Act, which, is the subject matter of dispute in the present case, and it is not suggested that the provisions of the Estates Abolition Act relating to 24 the computation of gross asset on the basis of rents payable by raiyats is in any way illegal. The grievance of the appellants in substance is that the machinery of the amended Act is being utilised by the Government for the purpose of deflating the gross asset of an estate. We agree with the learned Attorney General that if the appellants are right in their contention, they can raise these objections if and when the gross assets are sought to be computed on the basis of the rents settled under the above provisions. If the provisions are void, the rents settled in pursuance thereof could not legitimately form the basis of the valuation of the estate under the Estates Abolition Act and it might be open to the appellants then to say that for purposes of section 26 of the Estates Abolition Act, the rents payable for the previous year would be the rents settled under the Madras Estates Land Act, as it stood unamended before 1947. The learned counsel for the appellants eventually agreed with the views of the Attorney General on this point and with the consent of both sides we decided to leave these questions open. They should not be deemed to have been de cided in these cases. The appellants ' second head of arguments relates to two items of property, namely, buildings and private lands of the intermediary, which, along with other interests, vest in the State under section 5 of the Act. There are different provisions in the Act in regard to different classes of buildings. Firstly, dwelling houses used by an intermediary for purposes of residence or for commercial or trading purposes remain with him on the footing of his being a tenant under the State in respect to the sites thereof and paying such fair and equitable rent as might be determined in accordance with the provisions of the Act. In the second place, buildings used primarily as office or kutchery for man agement of the estates or for collection of rents or as rest houses for estate servants or as golas for storing of rents in kind vest in the State and the owner is allowed compensation in respect thereof. In addition to these, there are certain special provisions in the Act 25 relating to buildings constructed after 1st January, 1946, and used for residential or trading purposes, in respect to which the question of bona fides as to its construction and use might be raised and investigated by the Collector. There are separate provisions also in respect to buildings constructed before 1st January, 1946, which were not in possession of the intermediary at the date of coming into force of the Act. The questions arising in regard to this class of cases have been left open by the High Court and we are not concerned with them in the present appeals. No objection has been taken by the appellants in respect to the provisions of the Act relating to buildings used for residential or trade purposes. Their objections relate only to the building used for estate or office purposes which vest in the State Government under the provisions of the Act. In regard to these provisions, it is urged primarily that the buildings raised on lands do not necessarily become parts of the land under Indian law and the legislature, therefore, was wrong in treating them as parts of the estate for purposes of acquisition. This contention, we are afraid, raises an unnecessary issue with which we are not at all concerned in the present cases. Assuming that in India there is no absolute rule of law that whatever is affixed to or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself, there is nothing in law which prevents the State legislature from providing as a part of the estates abolition scheme that buildings, lying within the ambit of an estate and used primarily for management or administration of the estate. would vest in the Government as appurtenances to the estate itself. This is merely ancillary to the acquisition of an estate and forms an integral part of the abolition scheme. Such acquisition would come within article 31(2) of the Constitution and if the conditions laid down in clause (4) of that article are complied with, it would certainly attract the protection afforded by that clause. Compensation has been pro. vided for these buildings in section 26(2) (iii) of the 4 26 Act and the annual rent of these buildings determined in the prescribed manner constitutes one of the elements for computation of the gross asset of an estate. The contention of the appellants eventually narrows down to this that the effect of treating the annual valuation of the buildings as part of the gross asset of the estate in its entirety, leads to unjust results, for if these buildings were treated as separate properties, the intermediaries could have got compensation on a much higher scale in accordance with the slab system adopted in the Act. To this objection, two answers can be given. In the first place, if these buildings are really appurtenant to the estate, they can certainly be valued as parts of the estate itself. In the second place, even if the compensation provided for the acquisition of the buildings is not just and proper, the provision of article 31 (4) of the Constitution would be a complete answer to such acquisition. As regards the private lands of the proprietor, the appellants have taken strong exception to the provisions of the Act so far as they relate to private lands in possession of temporary tenants. In law these lands are in possession of the proprietor and the temporary tenants cannot acquire occupancy rights therein, yet they vest, under the Act, in the State Government on the acquisition of an estate, the only exception being made in cases of small land holders who do not hold more than 33 acres of land in any capacity. Section 8(1) of the Act gives the temporary tenants the right to hold the lands in their occupation under the State Government on the same terms as they held them under the proprietor. Under the Orissa Tenants Protection Act, which is a temporary Act, the landholder is not entitled to get contractual or competitive rents from these temporary tenants in possession of his private lands and the rent is fixed at two fifths of the gross produce. It is on the basis of this produce rent which is included in the computation of the gross asset of an estate under section 26 of the Act, that the land holder gets compensation in respect to the private lands in occupation of temporary tenants. The appellants ' main contention is that although in these lands 27 both the melvaram and kudivaram rights, that is to say, both the proprietor 's as well as the raiyat 's interests are united in the land holder, the provisions of the Act indicated above have given no compensation whatsoever for the kudivaram or the tenant 's right and in substance this interest has been confiscated without any return. This, in our opinion, is a wrong way of looking at the provisions for compensation made in the Act. The Orissa Act, like similar Acts passed by the legislatures of other States, provides for payment of compensation on the basis of the net income of the whole estate. One result of the adoption of this principle, undoubtedly is, that no compensation is allowed in respect of potential values of properties; and those parts of an estate which do not fetch any income have practically been ignorned. There is no doubt that the Act does not give anything like a fair or market price of the properties acquired and the appellants may be right in their contention that the compensation allowed is inadequate and improper; but that does not affect the constitutionality of the provisions. In the first place, no question of inadequacy of compensation can be raised in view of the provision of article 31(4) of the Constitution and it cannot also be suggested that the rule for payment of compensation on rental basis is outside the ambit of entry 42 of List Ill. This point is concluded by the earlier decision of this court in Raja Suriya Pal Singh vs The State of U.P.(1) and is not open to further discussion. Mr. Narasaraju is not right in saying that the compensation for the private lands in possession of temporary tenants has been given only for the landlord 's interest in these properties and nothing has been given in lieu of the tenant 's interest. The entire interest of the proprietor in these lands has been acquired and the compensation payable for the whole interest has been assessed on the basis of the net income of the property as represented by the share of the produce payable by the temporary tenants to the landlord. It is true that the Orissa Tenants Protection Act is a temporary statute, but whether or not it is renewed in future, the (1) 28 rent fixed by it has been taken only as the measure of tile income derivable from these properties at the date of acquisition. Mr. Narasaraju further argues that his clients are not precluded from raising any objection on the ground of inadequacy of compensation in regard to these private lands by reason of article 31(4) of the Constitution, as the provision of that article is not attracted to the facts of the present case. What is said is, that the original Estates Abolition Bill, which was pending before the Orissa Legislature at the time when the Constitution came into force, did not contain any provision that the private lands of the proprietor in occupation of temporary tenants would also vest in the State. This provision was subsequently introduced by way of amendment during the progress of the Bill and after the Constitution came into force. It is argued, therefore, that this provision is not protected by article 31(4). The contention seems to us to be manifestly untenable. Article 31(4) is worded as follows: "If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2). " Thus it is necessary first of all that the Bill, which ultimately becomes law, should be pending before the State Legislature at the time of the coming into force of the Constitution. That Bill must be passed by the Legislature and then receive the assent of the President. It is the law to which the assent of the President is given that is protected from any attack on the ground of non compliance with the provisions of clause (2) of article 31. The fallacy in the reasoning of the learned counsel lies in the assumption that the Bill has got to be passed in its original shape without any change whatsoever, before the provision of clause (4) of article 31 could be attracted. There is no 29 warrant for such assumption in the language of the clause. The expression "passed by such Legislature" must mean "passed with or without amendments" in accordance with the normal procedure contemplated by article 107 of the Constitution. There can be no doubt that all the requirements of article 31(4) have been complied with in the present case and consequently there is no room for any objection to the legislation on the ground that the compensation provided by it is inadequate. The last contention of the appellants is directed against the provision of the Act laying down the manner of payment of the compensation money. The relevant section is section 37 and it provides for the payment of compensation together with interest in 30 annual equated instalments leaving it open to the State to make the payment in full at any time prior to the expiration of the period. The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which comes within the principle enunciated by the majority of this court in the Bihar case referred to above. It is difficult to appreciate this argument of the learned counsel. Section 37 of the Act contains the legislative provision regarding the form and the manner in which the compensation for acquired properties is to be given and as such it comes within the clear language of entry 42 of List III, Schedule VII of the Constitution. It is not a legislation on something which is non existent or unrelated to facts. It cannot also be seriously contended that what section 37 provides for, is not the giving of compensation but of negativing the right to compensation as the learned counsel seems to suggest. There is no substance in this contention and we have no hesitation in overruling it. The result is that all the points raised by the learned counsel for the appellants fail and the appeals are dismissed. Having regard to some important constitutional questions involved in these cases which needed clearing up, we direct that each party should bear his own costs in these appeals. Appeals dismissed. 30 Agent for the appellant in Civil Appeal Nos. 71, 72, 73, 75 & 76: M. section K. Sastri. Agent for the appellant in Civil Appeal No. 74: R.C. Prasad. [/INST]By an agreement with the Fort William Jute Company in 1925 the appellant company became its Managing Agent. The terms, inter alia, were that the appellant or its successors, unless they chose to resign, were to continue as Managing Agent until they ceased to hold certain shares in the capital of the company and were on that account removed by a resolution of the company or their tenure of office was determined by the winding up of the company. On termination of the agency, the Managing Agent was to get such reasonable compensation as was agreed upon between the Managing Agent and the company. Besides this managing agency the appellant held five other managing agencies. In 1952, the appellant by in agreement with M/s. Mugneeram Bangur & Co., agreed to relinquished the managing agency of the Fort William Jute Co., Ltd., in their favour in consideration of M/s. Mugneeram Bangur and Co. taking over the shares held by the appellant, procuring repayment of loans advanced by the appellant to the Fort William Jute Company and further procuring that the Fort William Jute Company. will pay com pensation to the appellant. The appellant intimated the members of the latter company that it would be in the best interest of the share holders to terminate the appellant 's agency which would otherwise continue till 1957 and that M/S. Mugneeram Bengur & Co. had agreed to reimburse the Fort William Jute Co. Ltd. for payment of Rs. 3,50,000 as compensation to the appellant. The arrangement with M/s. Mugneeram Bangur & Co. was accepted by the Fort William Jute Co. and the appellant tendered resignation. M/s. Mugneeram Bangur and Co. 94 became the Managing agent. The appellant received the sum of Rs. 3,50,000 and credited the sum in its profit and loss account as having been received from the Fort William Jute Co. Ltd. on account of compensation for loss of office and in calculating the net profit for the purpose of income tax for the year 1953 54 did not include this amount in the return. The Income tax Officer in assessment included the amount in the appellant 's taxable income. The Assistant Appellate Commissioner on appeal modified the assessment holding that the sum received by the appellant as compensation for surrendering the managing agency, which was to enure for five years more and might have continued for another twenty years, was a capital receipt. The Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner. At the instance of the Commissioner of Income tax the following question was referred to the High Court: Whether on the facts and circumstances of the case the sum of Rs. 3,50,000 received by the assessee to relinquish the managing agency was a revenue receipt assessable under the Indian Income tax Act?. The High Court answered the question in the affirmative. HELD: that the answer should be in the negative. The transaction in question was not a trading transaction, but one in which the assessee parted with an asset of enduring value. The compensation received was compensation for loss of capital. It was inconsequential whether the appellant conducted the remaining agencies after the determination of the one in question. Where payment is made as compensation for cancellation of a contract which does not affect the trading structure of the business, nor causes 'deprivation of what in substance is source of income, and is a normal incident of the business, the compensation is revenue. But where the cancellation impairs the trading structure or results in loss of the source of income, the compensation paid for the cancellation of the agreement is normally capital receipt. Commissioner of Income tax Nagpur vs Rai Bahadur Jairam Yalji, , referred to. Commissioner of Income tax vs Shaw Wallace and Co. L.R. 59 I.A. 206, explained. Raja Bahadur Kamakshaya Narain Singh of Ramgarh vs Commissioner of Income tax, Bihar and Orissa, L.R. 70 I.A. 180, Commissioner of Income tax and Excess Profits Tax Madras vs South India Pictures, , Peirce Leslie and Co. Ltd. vs Commissioner of Income tax, Madras, , Commissioner of Income tax, Hyderabad Deccan vs Vazir Sultan and Sons. and Godrej & Co. vs Commissioner of Income tax, Bombay City, , discussed. </s>

<s>[INST] Summarize the judgementAppeals Nos. 890 to 892 of 1968. Appeals by special leave from the judgment and order dated November 24, 1967 of the Allahabad High Court in Special Appeals Nos. 476 to 478 of 1965. section T. Desai, H. K. Puri and B. N. Kirpal, for the appellant (in all the appeals). Sukumar Mitra, section C. Manchanda, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals). From time to time the Company purchased and installed machi nery of the value of Rs. 75 lakhs for its factory. In proceedings for assessment of income tax, the Company was allowed, in computing its income from business for the assessment years 1950 51, 1951 52 and 1952 53 "initial depreciation" aggregating to Rs. 15,91,51 1/ in respect of new machinery installed in the relevant previous years. The Company was also allowed "normal depreciation I ' at the appropriate rates. In the assessment year 1956 57 the aggregate of all depreciation allowances including "initial depreciation" exceeded the original cost of the machinery, but the Income tax Officer on the written down value of the machinery computed at Rs. 16,48,053/ allowed Rs. 2,59,236/ as normal depreciation. In so computing the normal depreciation the Income tax Officer apparently lost sight of clause (c) of the proviso to section 10(2) (vi) of the Income tax Act, 1922. Depreciation allowance was also allowed in the assessment years 1957 58 and 1958 59 as a percentage on the appropriate written down value in those years. The Income tax Officer on November 20, 1964, issued notices of re assessment for the three years under section 148 of the Indian Income tax Act, 1961, which had replaced the Act of 1922. The Company filed under protest fresh returns and objected to the issue of the notices of reassessment. The Company also moved petitions in the High Court of Allahabad for writs quashing the three notices,. contending inter alia, that the notices issued more than four years after the expiry of the years of assessment were barred. At the hearing of the petitions counsel for the Company conceded that under proviso (c) to section 10 (2) (vi) of the Indian Income tax Act, 1922, in the form in which it stood in the assessment year 1956 57 and thereafter, excessive depreciation was in fact allowed to the Company. It was also common ground that by virtue of cl. (c) to Explana 594 tion 1 of section 147 of the Income tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income tax Act, 1922, the income chargeable to tax had escaped assessment. But it was urged that the income had not escaped assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly, all material facts necessary for assessment of that year", for (1) the Indian Income tax Art, 1922, and the forms of returns prescribed under the rules did not require the, assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Income tax Officer knew that initial depreciation had been allowed to the Company in the years 1950 51, 1951 52 and 1952 53. R. section Pathak, J., who heard the petitions held that the Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return. But the learned Judge held that it was. incumbent upon the Company to inform the Income tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled. The learned Judge accordingly rejected the petitions. The order passed by Pathak, J., was confirmed in appeal under the Letters Patent. By cl. (vi) of sub section (2) of section 10 of the Income tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains. of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in cls. (a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 3 1st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on that account proviso (c) to section 10 (2) (vi) was not modified. The written down value of the machinery of the, Company in the year 1956 57 was Rs. 16,48,053, but 'for the application of cl. (c) of the proviso to section 10(2) (vi) the initial depreciation allowed in the years 1950 51, 1951 52 and 1952 53 had to be taken into account. The Income tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 1956 57 in excess of the amount permissible under proviso (c) to section 10(2) (vi). The 595 Income tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax. Before R. section Pathak, I., it was contended that the definition of written down value" in section 10(5) (b) applies wherever the expression is used in section 10(2) and on that account the Company in seting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to ' disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted by the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account section 147 ( 1 )(a) was attracted and the, notice was properly issued. In appeal, the High Court observed that the "only question for consideration" was whether the Income tax Officer was justified in issuing a notice under section 148 of the Income tax Act, 1961. After stating that there was apparently "a mistake and error on the side of the Company as well as the Income tax Officer", the, Court observed that the Income tax Officer could reasonably comer to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income tax Officer as a result of which some income had es caped assessment. The High Court then observed : "It is difficult to hold that the Income tax Officer while issuing the notices under Act could not reasonably hold the assessee was responsible for assessment.", and held that the notices were not Section 34(1) (a) of the Income tax Act, 1922, provided: " (1) if (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, 596 income, profits or, gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or he may proceed to assess or re assess such income, profits or gains or re compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 34 confers jurisdiction upon the Income tax Officer to 'issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end. of the relevant year, if two conditions exist (1) that the Income tax Officer has reason to believe that income, profits or gains chargeable to income tax had been under assessed; and (2) that he has also reason to believe that such "under. assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These ,conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re assessment : Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and Anr. (1) In deciding the appeal, the High Court held that the Income tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary. for assessment. The judgment of the High Court is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment of the Company for the three years in question, any income, profits or gains chargeable to income tax have escaped assessment or the ,Company has been given excessive depreciation allowance in computing its income. Costs of these appeals will be costs in the High Court. One hearing fee. Appeal allowed and case remanded. [/INST]The Respondent Girasdars in the State of Saurashtra mortgaged their lands with possession with the appellants, who paid the land revenue and other dues. By the Saurashtra Land Reforms Act (25 of 1951), the, rights of the Girasdars were extinguished, and the tenants of Girasdars became occupants of land held by them. The Land Reforms Act provided for the Mamlatdar to allot land to a Girasdar for personal cultivation. The special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to; be taken, and that there was no need to grant 'any occupancy rights. The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted scaling down the debts and for providing for rest oration of their property, to the debtors. Thereupon the respondents applied.for adjustment of their debt to the Court having jurisdiction under the Debtors Relief article The ' appellants relied on the order of the Special Mamlatdar declaring the lands as Khalsa and contended that the lands having been declared as Kholsa, the respondents had lost their rights therein. HELD : The rights of the respondents Girasdars in this case were not extinguished under the Land Reforms Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide the restoration of the land in possession of the mortgagees to, the mortgagors on taking fresh account between the parties and directing. payments by one party to the other. The Saurashtra Land Reforms Act aimed at regulating the relationship of persons in position of Landholders and their tenants, and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It was not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law. No adjudication of the rights of the debtors and creditors inter se was done. All that the Special Mamlatdar decided and had jurisdiction to decide under the Land Reforms Act was whether the respondents could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being Khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights. In order to get such occupancy rights the appellants had to show that they had become tenants which they could not be under the provisions of section 6 of the Land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with tenancy rights. That apart, it has not been shown that the respondents were awarded any compensation in respect of the 691 Khalsa lands given in mortgage to the appellants. The occupancy certificates, if any, given by the Special Mamlatdar to the appellants could not under the provisions of the Land Reforms Act extinguish the title of the respondents. [695 H; 696 H] </s>

<s>[INST] Summarize the judgementN: Criminal Appeal Nos. 208 209 of 1974. Appeals by Special Leave from the Judgment and order dated 18/19 1 1974 of the Bombay High Court in Criminal Revision Application Nos. 821/72 and 305/74. AND SPECIAL LEAVE PETITION (CRL.) No 630 OF 1977. From the Judgment and order dated 30 6 1972 of the Madhya Pradesh High Court in Crl. Rev. No. 81/72. R. K. Garg, B. A. Desai. V. J. Francis, and D. K. Garg for the Appellant in Crl. A. Nos. 208 209. section K. Gambhir and Miss Ram Rikhyani for the Petitioner in SLP No. 630/77. J. L. Nain and M. N. Shroff for the Respondent in Crl. Nos. 208 209. 179 The Judgment of the Court was delivered by SARKARIA, J. These appeals by special leave directed against judgments dated January 17, 1974 and March 29, 1974, of the Bombay High Court, raise, among others, three important questions, namely: (1) Whether an officer of the Railway Protection Force, making an inquiry under the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 1966 Act, in respect of an offence under Section 3 of that Act of unlawful possession of the railway property, is a Police officer for the purposes of Section 25, Evidence Act and Section 162 of the Code of Criminal Procedure. 1898; and as such. any confession or incriminating statement recorded by him in the course of an inquiry under Section 9 of the Act is inadmissible in evidence. (2) Whether a person arrested by an officer of the Railway Protection Force under Section 6 of the Act for the alleged commission of an offence under Section 3 of the Act, is a "person accused of an offence" within the meaning of Article 20(3) of the Constitution. (3) Whether Section 9 of the Act is violative of Article 14 of the Constitution. E The appeals arise in these circumstances: The Inspector, Central Intelligence Bureau, Head Quarters, Bombay (Shri P. A. Kakade) filed a complaint before the Presidency Magistrate, 35th Court, Victoria Terminus, Bombay, complaining of the commission of an offence by the appellants, herein, (in Crl. Appeals 208 and 209 of 1974), under Section 3 of the Act. The allegations in the complaint, as summarised in the judgment of the High Court in Criminal Revision Application No. 821 of 1973, are as under: On November 21, 1970, the Assistant Security officer, Central Railway, Bhusawal intimated to the Chief Security officer, Bombay V.T. that two wagons Nos. ERKC 9447 exhibit HSPG BNDN to Akola and Wagon No. ERKC 75531 exhibit were unloaded by Unloading Foreman, one B. D. Raverkar of Akola Goods Shed. Seventynine M. section Plates (Mild Steel Plates) were unloaded from Wagon No. ERKC 75531. On November 14, 1970, one Ram Singh who was having R. R. No. 982859 Invoice No. 3 for 78 M.S. Plates and Invoice No. 2 RR No. 892857 for 60 M.S. Plates signed the RRs. and endorsed the same to M/s. Vallabhaji Brothers, Clearing Agents at Akola Goods Shed for 180 taking the delivery. Clerk Onkar of the said firm was sent to take delivery. He took delivery of 78 plates from one J. Meshram after paying the necessary railway dues of Rs. 1,813.80 P., and the 78 Plates were removed by the said party in lorries. The Delivery of the second consignment of 60 M.S. Plates was taken on November 16, 1970 after paying the railway dues of Rs. 2.247.40 P. The said Ram Singh posed as a proprietor of Modern Industries which was found to be a fictitious firm, which never existed. The Deputy Commercial Superintendent, Bhusawal, on November 19, 1970, informed all concerned that the delivery from these wagons was obtained on fraudulent Railway Receipts. The inquiry into this case was entrusted to the Complainant Inspector, P. A. Kakade, who is an officer of the Railway Protection Force. In the course of that inquiry, the statements of certain persons, including that of Balkishan, appellant herein, were recorded by the said Inspector. On January 31, 1971, while inquiring into another case of Wadi Bunder in which Balkishan was involved, the Inspector recorded the confessional statement of Balkishan, appellant, herein. After making that confessional statement, Balkishan is said to have led Inspector Kakade, in the presence of Panchas, to Tulsiram Gupta Mills Estate Compound, wherefrom 35 M.S. Plates were recovered. The Inspector further discovered that the M.S. Plates were shifted from Devi Dayal 's compound to Nittal Estate, Kurla Andheri Road, Marol Naka and they were transported from there for Devi Dayal 's Estates. He recorded the statement of Tukaram, the owner of one of these motor trucks on February 7, 1971. Tukaram stated that his lorry was engaged on November 1, 1971, by the appellant. In the meantime, investigation regarding the offences of forgery and cheating was being done at Akola by the concerned Police Sub Inspector, who was directed to suspend his inquiry till further orders were received by him. In the complaint, Inspector Kakade stated that accused 2 and 3 are absconding Annexed to the complaint was a list of prosecution witnesses numbering, in all, 40 and a list of documents numbering 62. The appellant (accused 1) appeared before the Presidency Magistrate. He was then supplied the list of prosecution witnesses and the list of documents to be relied upon by the prosecution. The list of documents included the list of statements of various persons recorded by the Inspector of the Railway Protection Force. The Presidency Magistrate commenced an inquiry and recorded the 181 statements of four witnesses, of one on March 2, 1973 and of the other three on June 12, 1973. On June 11, 1973, an application was filed by the appellant to the Magistrate, making a grievance that although three witnesses had been examined, no copies of the documents were furnished to him by the prosecution. On June 25, 1973, the appellant made a further application to the Magistrate, requesting for supply of true copies of all the documents in the case to enable him to prepare his defence. He further prayed that he should be allowed to take photostats of all the documents in the presence of the court officer. The Magistrate on August 3, 1973, passed an order rejecting the accused 's application, dated June 11, 1973, on the ground that the offence complained of against him was non cognizable and the provisions of Section 251A of the Code of Criminal Procedure were not applicable, and consequently. he (accused 1) had no right to obtain copies of the documents concerned. The Magistrate further passed an order on August 3, 1973. declining to allow the accused to take photostats of all the documents, on the ground that the documents could not be allowed to be taken outside the court. He, however, added that "if any request to secure the photostat copies in the Court comes, it will be considered". On August 24, 1973, the Magistrate framed a charge under Section 3(a) of the Act to the effect? that on or after November 14, 1970 the accused was found in possession of M.S. Plates numbering about 110, which were the Railway property unlawfully possessed by him. The accused pleaded 'not guilty ' and again made an application repeating his request for copies of the statements of witnesses recorded by Inspector Kakade. He also prayed that he be allowed to inspect all the statements recorded by the prosecution and take copies thereof. The Magistrate rejected this application, also, by an order on September 7, 1973. Feeling aggrieved by the orders passed by the Magistrate on August 9. 1973 and September 7, 1973, and the framing of the charge against him, the appellant invoked the inherent jurisdiction of the High Court by a petition under Section 561A of the Code of Criminal Procedure, 1898, and prayed that the said orders be quashed. In this petition, he challenged the constitutional validity of Section 9 of the Act. The petition was heard by a Bench consisting of Vaidya and Gandhi, JJ. The learned Judges answered all the questions, posed above, in the negative. But, on the other aspects of the case, the Assistant Government Pleader, appearing on behalf of the State, stated before the High Court that the prosecution did not desire to keep back 182 any material from the accused and that they would produce copies of statements of all the witnesses and the documents on which the prosecution intends to rely or which the accused wanted to examine. In view of this statement of the Government Pleader, the High Court set aside the orders of the Magistrate and directed the complainant under Section 165 of the Evidence Act to produce in the trial court the true copies of the statement of the witnesses already examined and to be examined hereafter By the complainant and of the documents on which the complainant desired to depend. The High Court further declared that the accused and his counsel shall be entitled to inspect those documents and take copies thereof, if necessary, in the court. If further declared that Section 9 of the Act, is not ultra vires the Constitution. Hence, these appeals by the accused persons. Question No. 1 The first question for consideration is. whether an Inspector of the Railway Protection Force, (for short, RPF) is a "police officer", and therefore any confessional statement made to him comes within the prohibition of Section 25. Evidence Act. Section 25 reads thus: "No confession made to a police officer shall be proved as against a person accused of any offence. " As explained by this Court in Ariel vs State the policy behind Sections 25 and 26. Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall be presumed to have been obtained under the circumstances mentioned in p Section 24 and, therefore, inadmissible except so far as is provided in Section 27, of that Act. The term "Police officer" has not been defined in the Evidence Act. Shri R. K. Garg, appearing for the appellant, submits that the expression "police officer" in Section 25, Evidence Act must be construed in a wide popular sense, so as to include within its ambit all officers of Government who are, in substance, invested with the power to investigate certain offences in accordance with the provisions of the Code of Criminal Procedure 1898 (for short, called the Code). irrespective of the fact that they are differently labelled such as, Excise officers or Customs officers or members of the RPF, otherwise, the very object of Section 25 will be defeated. In support of this contention, the learned counsel has referred to the decision of this Court 183 in Raja Ram Jaiswal vs State of Bihar. The point pressed into argument is that an Inspector of the RPF making an inquiry under the Railway Property (Unlawful Possession) Act. 1966 into an offence under Section 3 of that Act, in substance. acts and exercises almost all the powers of a 'Police officer ' making an investigation under the Code of Criminal Procedure. If that be the correct position proceeds the argument any confessional statement recorded by such Inspector will be hit by section 25, Evidence Act, and if that statement falls short of a 'confession ', then also, it will not be admissible in evidence against its maker, at his trial because of the bar in section 162. Criminal Procedure Code. As against the above, Shri Nain submits that an officer of the RPF while making an inquiry under the 1966 Act cannot be equated with a Police officer in charge of a Police Station making an investigation under the Code. One important difference in their powers is, that the RPF Inspector has no power to submit a report or chargesheet under section 173 of the Code. Shri Nain has further pointed out that Raja Ram Jaiswal 's case stands on its own peculiar facts, and was distinguished in a later decision by a Constitution Bench of this Court in Badku Joti Savant vs State of Mysore. According to Shri Nain, the correct test for determining whether or not a RPF officer is a 'Police officer ' for the purpose of section 25. Evidence Act, is the one which was consistently applied in State of Punjab vs Barkat Ram; Badku Joti Savant (ibid); Romesh Chandra Mehta vs West Bengal. To top it all, it is maintained, the question is now no longer res integra and has been concluded by the recent judgment of this Court in State of U.P. vs Durga Prasad. In reply, Shri R.K. Garg has tried to distinguish Durga Prasad 's case, ibid, on the ground, that therein the question whether or not an officer of the RPF is a Police officer within the contemplation of section 25 of the Evidence Act, was not directly in issue. It is maintained that the only question for decision in that case was. Whether an enquiry conducted under section 8(1) of the 1966 Act can be deemed to be an investigation for the purpose of section 162 of the Code of Criminal Procedure. and this question was answered in the negative. In the alternative, it is urged that Durga Prasad 's case was not correctly decided and its ratio needs reconsideration by a larger Bench because it has overlooked the test laid down by the 3 Judge Bench in Raja Ram laiswal 's case. 184 Although Durga Prasad 's case very largely appears to conclude this question, yet, in deference to the last argument of Shri Garg, we propose to deal with the other decisions of this Court. which have been referred to by counsel on both sides. At the outset, for the sake of perspective, we may notice the relevant provisions of the 1966 Act and the Railway Protection Force Act ]957 (for short called the 1957 Act). First we will notice the relevant features of the 1957 Act whereunder the RPF was constituted. The preamble of the 1957 Act states that its object is to provide for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of railway property. The various clauses in Section 2 contains definitions. The definition of "railway property" in clause (e) "includes any goods, money or valuable security, or animal, belonging to, or in the charge or possession of. a railway administration." "Member of The Force" means "a person appointed to the Force under this Act other than a superior officer". Clause (c) "superior officer" means any of the officers appointed under section 4. Clause (g) says that the words and expressions used but not defined in this Act and defined in the Indian Railways Act 1890, shall have the meanings respectively assigned to them under that Act. Section 3 gives powers to the Central Government to constitute and maintain the Force. Section 5 enumerates the classes of officers; Inspector/Sub Inspector/Assistant Sub Inspector. Section 10 says that the officers and members of the Force shall be deemed to be 'railway servants ' within the meaning of the Indian Railways Act. Section 11 is important. It enumerates That, the duty of every superior officer and member of the Force shall be (a) promptly to execute all orders lawfully issued to him by his superior authority; (b) to protect and safeguard railway property; (c) to remove any obstruction in the movement of railway property; and (d) to do any other act conducive to the better protection and security of railway property. Section 12 enables any superior officer or member of the Force to arrest, without an order from a Magistrate and without a warrant "(a) any person who has been concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months, or against whom a reasonable suspicion exists of his having been so concerned; or 185 (b) any person found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to, railway property. " Section 13 provides: "Whenever any superior officer, or any member of the Force, not below the rank of a Senior Rakshak, has reason to believe that any such offence as is referred to in section 12 has been nor is being committed and that a search warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence, he may detain him and search his person and belongings forthwith and, if he thinks proper, arrest any person whom he has reason to believe to have committed the offence. Under sub section (2), the provisions of the Code, relating to searches under that Code shall, so far as may be, apply to searches under this section. Section 14 indicates the procedure to be followed after arrest. According to it, any superior officer or member of the Force making an arrest under this Act, shall without unnecessary delay. make over the person arrested to a police officer, or, in the absence of a Police officer, take such person or cause him to be taken to the nearest police station. Section 17 provides penalties for neglect of duty, etc. Section 20 gives protection to a member of the Force for any act done by him in the discharge of his duties. Section 21 gives powers to the Central Government to make rules for carrying out the purposes of this Act. Clause (b) of sub section (2) of this section says that such rules may provide, inter alia, for regulating the powers and duties of superior officers and members of the Force authorised to exercise any functions by or under this Act. From the above survey, it will be seen that the primary object of constituting the Railway Protection Force is to secure better "protection and security of the railway property." The restricted power of arrest and search given to the officers or members of the Force is incidental to the efficient discharge of their basic duty to protect and safeguard Railway Property. No general power to investigate all cognizable offences relating to Railway Property, under the Criminal Procedure Code has been conferred on any superior officer or member of the Force by the 1957 Act. Section 14 itself makes it clear that even with regard to an offence relating to 'railway property ', the superior officer or member of the Force making an arrest under section 13 shall forthwith make over the person arrested to a police officer, or cause his production in the nearest police station. Now, we will take up the 1966 Act, which came into force on September 16, 1966. As is evident from its preamble, it is an Act to consolidate and amend the law relating to unlawful possession of 186 Railway Property. The material part of the objects and Reasons for moving the Bill which became this Act, is as under: "2. At present, offences against Railway property are being dealt with under Railway Stores (Unlawful Possession) Act, 1955, but this Act has been found, by experience, to be ineffective in tackling with the enormity of the problems of theft and pilferages on Railways. As it is, this Act makes unlawful possession of Railway Stores an Defence, but it is only applicable to unlawful possession of Railway property owned by the Railways, and does not cover the offences relating to goods and parcels entrusted to Railways for transport. Further, the offences under this Act are investigated and enquired into by local police in accordance with the provisions of the Code of Criminal Procedure, 1898. It has been observed that the two Agencies, i.e. the Government Railway Police and Railway Protection Force, which are at present provided to deal with crimes on railways find themselves handicapped, for different reasons, in effectively dealing with the problem of theft and pilferage of Railway Property. The Railways are spread out over a large part of the country and property, etc., entrusted to them is carried from one part to another usually crossing boundaries of different states. The jurisdiction of State Police being restricted to the State boundary only, it becomes difficult at times for the Police to make thorough and fruitful investigation into offences relating to Railway Property. Besides, investigation of cases in respect of Railway Property also requires a specialised knowledge of Railway working. The Railway Protection Force, on the other hand, are not at present equipped with requisite powers of investigation and prosecution, with the result that whatever action they take in respect of prevention etc., is taken just in aid of the State Police who conduct investigation and prosecution etc. Due to this fact of two agencies being responsible for achieving the same object, the machinery has not proved as effective as it ought to have. 4, It is, therefore, proposed to replace the Railway Stores (Unlawful Possession) Act, 1955, by a more comprehensive Act so as to bring with its ambit the unlawful possession of goods entrusted to the Railways as common carriers and to make the punishment for such offences more deterrent. It is also proposed to invest powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs." (emphasis added) 187 From what has been quoted above, it is clear that the main purpose of passing the 1966 Act was to "invest powers of investigation and prosecution" of offences relating to railway property in the RPF "in the same manner as in the Excise and Customs". We will advert to this point later. Suffice it to say here that in view of the aforesaid object of enacting the 1966 Act. the decisions of this Court on the question as to whether an Excise officer/Customs officer is a "Police officer", within the purview of section 25, Evidence Act, or section 162, Criminal Procedure Code, assume analogical importance for the purpose of deciding the precise question before us. The various clauses of section 2 of the 1966 Act, contain definitions. Clause (c) defines "officer of the Force" to mean "an officer of and above the rank of Assistant Sub Inspector appointed to the Force and includes a superior officer. " The definition of "railway property" in clause (d) has been expanded so as to include goods entrusted to the Railway for carriage or transport, belonging to another person. Section 3 provides: "Whoever is found. Or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully be punishable (a) for the first offence with imprisonment for a term which may extend to five years, or with fine, or with both and; in the absence of . special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees; and (b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees". It will be seen that if any person is found or proved to be in possession of any 'railway property ', which is reasonably suspected of having been stolen or unlawfully obtained, the burden shall shift on to that person to prove his innocence, that is to say, to establish that he came into possession of the 'railway property ' lawfully. Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act. 188 Section 5 says: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable". It may be noted that in spite of provision in the Code of Criminal Procedure to the contrary, offences under this Act have been made non cognizable and, as such, cannot be investigated by a police officer under the Code. It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under section 173(4) of the Criminal Procedure Code, 1898. Section 6 gives powers to any superior officer or member of the Force to arrest without an order from a Magistrate and without a warrant, any person who has been concerned in an offence punishable under this Act, or against whom a reasonable suspicion existed of his having been so concerned. Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed by the officer before whom the accused Person is produced. Reading section 7 of the 1966 Act with that of section 14 of the 1957 Act, it is clear that while in the case of a person arrested under section 12 of the 1957 Act the only course open to the superior officer or member of the Force was to make over the person arrested to a police officer, in the case of a person arrested for a suspected offence under the 1966 Act, he is required to be produced without delay before the nearest officer of the Force, who shall obviously be bound (in view of Article 22(1) of the Constitution) to produce him further before the Magistrate concerned. Section 8 of the 1966 Act is new. It provides for an inquiry to be made against the arrested persons. According to it, when any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under section 7, he shall proceed to inquire into the charge against such person. It is to be noted that such power of inquiry, has been conferred on an officer of the Force, although he is not an officer incharge of a police station as envisaged by section 173 of the Code of Criminal Procedure, Sub section (2) of this section confers on the officer of the Force "the same powers" for the purpose of the inquiry under sub section (1) and subject to the same provisions "as the officer incharge of a police station may exercise and is subject under the Code of. Criminal Procedure, 1898 when investigating a cognizable case. " Then there is a proviso which says: 189 "Provided that (a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. " Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents, or any other thing in any inquiry for any of the purposes of this Act. Sub sections (3) and (4) provide: "(3) All persons, so summoned, shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemption under section 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance under this section." "(4) Every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding ' within the meaning of section 193 and section 228 of the Indian Penal Code." Section 10 enables an officer of the Force, having reason for the requisite belief to apply for a search warrant to the Magistrate. Section 11 provides that searches and arrests shall be in accordance with the provisions of the Code. Section 14 makes it clear that the provisions of the Act shall override all other laws. This means that if there is anything in the 1966 Act which is inconsistent with the Code, then on that point, the 1966 Act will prevail and the application of the Code pro tanto will be excluded. The most important example of such exclusion, as already noticed, is to be found in section 5 of the 1966 Act which makes as offence under this Act non cognizable, notwithstanding anything in the Code. This clearly shows that the provisions of the Code cannot 190 proprio vigore apply to an enquiry conducted under section 8(1) of the 1966 Act by an officer of the Force. Further, section 6 of the 1966 Act empowers an officer or member of the Force to arrest without a warrant and without an order of the Magistrate any person concerned, or reasonably suspected of being concerned in an offence under the 1966 Act. This again is contrary to the scheme and content of the Code which must give way to the 1966 Act in this matter. The third material aspect in which an inquiry under the 1966 Act, differs from investigation under the Code, is to be found in Section 9(3) whereunder persons summoned to, appear in the inquiry are expressly mandated to state the truth. In contrast with this, Section 160 of the Code does not expressly bind persons examined in Police investigation, to state the truth. The inquiry under Section 8(1) of the 1966 Act in view of Section 9(4) shall be deemed to be a judicial proceeding for the purpose of Sections 193 and 228 of the Penal Code. But a police investigation under Section 160 of the Code does not partake of the character of a judicial proceeding for any purpose and a witness examined during such investigation cannot be prosecuted under Section 193, Penal Code. The fourth important aspect in which the power and duty of an officer of the RPF conducting an inquiry under the 1966 Act, differs from a police investigation under the Code, is this Sub section (3) of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation. Section 162(1), which is to be read in continuation of Section 161 of the Code, prohibits the obtaining of signature of the person on his statement recorded by the investigating officer. But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act; rather, from the obligation to state the truth under pain of prosecution enjoined by Section 9(3) and (4), it follows as a corollary, that the officer conducting the inquiry may obtain signature of the person who made the statement. Fifthly, under the provision to sub section (1) of Section 162 of the Code, oral or recorded statement made to a police officer during investigation may be used by the accused, and with the permission of the Court, by the prosecution to contradict the statement made by the witness in Court in the manner provided in Section 145, Evidence Act, or when the witness ' statement is so used in cross examination, he may be reexamined if any explanation is necessary. The statement of a witness made to a police officer during investigation cannot be used for any other purpose, whatever, except of course 191 when it falls within Sections 32 or 27 of he Evidence Act. The prohibition contained in Section 162 extends to all statements, confessional or otherwise during a police investigation made by any person whether accused or not, whether reduced to writing or not, subject to the proviso. In contrast with the Code, in the 1966 Act, there is no provision analogous to the proviso to Section 162(1) of the Code, which restricts or prohibits the use of a statement recorded by an officer in the course of an inquiry under Sections 8 and 9 of the Act. Sixthly, the primary duty of a member/officer of RPF is to safeguard and protect railway property. Only such powers of arrest and inquiry have been conferred by the 1966 Act on members of RPF as are necessary and incidental to the efficient and effective discharge of the basic duty of watch and ward. Unlike a police officer who has a general power under the Code to investigate all cognizable cases, the power of an officer of the RPF to make an inquiry is restricted to offences under the 1966 Act. Last but not the least, under Section 190 of the Code, a Magistrate is empowered to take cognizance of an offence only in three ways, namely, (a) "upon receiving a complaint of facts which constitute an offence; (b) upon a report in writing of such facts made by any police officer, and (c) upon information received from any person other than a Police officer, or upon his own knowledge or suspicion, that such offence has been committed". The 'report ' mentioned in clause (b), includes the report made by a police officer under Section 173 after completing investigation under Chapter XIV of the Code. Section 173, in terms makes is clear that the duty of making a report thereunder on completion of the investigation to the Magistrate, is that of the officer in charge of the police station. Such a report shall include the opinion of the police officer as to the result of the investigation. The formation of such opinion is the final step in the investigation and that final step is to be taken by the police officer in charge of the station and by no other authority (Abhinandan Jha vs Dinesh Mishra). An officer of the RPF making an inquiry under the 1966 Act, cannot, by any stretch of imagination, be called an "officer in charge of a Police Station" within the meaning of Sections 173 and 190(b) of the Code. The made of initiating prosecution by submitting a report under Section 173 read with clause (b) of Section 190 of the Code is, therefore, not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act. The only mode of initiating prosecution of the 192 person against whom he has successfully completed the inquiry, available to an officer of the RPF, is by making a complaint under Section 190(1)(a) of the Code to the Magistrate empowered to try the offence. That an officer of the Force conducting an inquiry under Section 8(1) cannot initiate proceedings in court by a report under Sections 173/190(1)(b) of the Code, is also evident from the provisos to sub section (2) of Section 8 of the 1966 Act. Under proviso (a), if such officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he shall either direct him (after admitting him to bail) to appear before the Magistrate having jurisdiction or forward him in custody to such Magistrate. Under proviso (b), if it appears to he officer that there is no sufficient evidence or reasonable ground of suspicion against the accused, he shall release him on bond to appear before the Magistrate concerned "and shall make a full report of all the particulars of the case to his superior officer". Provisos (a) and (b) put it beyond doubt that where after completing an inquiry, the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must initiate prosecution of the accused by making a complaint under Section 190(1) (a) of the Code to the Magistrate competent to try the case. From the comparative study of the relevant provisions of the 1966 Act and the Code, it is abundantly clear that an officer of the RPF making an inquiry under Section 8(1) of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code. The character of the 'inquiry ' is different from that of an 'investigation ' under the Code. The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code. The ground is now clear for noticing the rulings cited at the Bar. In State of Punjab vs Barkat Ram (ibid), the question was whether a Customs officer can be regarded as a 'police officer ' within the purview of Section Evidence Act. This decision was rendered by a Bench of three learned Judges. The judgment of the Court was delivered by majority (consisting of Raghubar Dayal and J.L. Kapur JJ.). Subba Rao J. (as he then was wrote a dissenting opinion. The view taken by the Court Majority was to the effect: "that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. Although the expression 'police officer" has to be construed in a wide and popular sense, yet it has not 193 so wide a meaning as to include officers interested in the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of Customs duties. He is more concerned with the goods and customs duty than with the offender. The duties of customs officers are very much different from those of police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to the detection of infraction of Customs laws have been conferred on officers of the Police is not a sufficient ground for holding them to be police officers within the purview of Section 25 of the Evidence Act. The Customs officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially. The Police officers never act judicially. Hence, a Customs officer either under the , or under the , is not a police officer for the purpose of Section 25, Evidence Act. " In his dissenting opinion, Subba Rao J., held that Section 25, Evidence Act was enacted to subserve a high purpose and that is to prevent the police from obtaining confession by force, torture or inducement. The salutary principle underlying the Section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused It is not the garb or the designation under which the officer functions that matters, but the nature of the power he exercises or the character of the function he performs, is decisive. The question therefore, in each case is, does the officer under a particular Act substantially exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer. The learned Judge quoted with approval the view of Balakrishna Ayyar, J. in Paramasivam 's case that if the officer 's powers and duties are substantially those of a police officer, but are confined to a particular extent of territory or to a particular subject matter he will be a police officer only in respect of that territory or that subject matter. On this reasoning, Subba Rao J. held that a Customs officer is a police officer qua his police functions. The next case is Raja Ram Jaiswal (ibid) decided by a three Judge Bench. There, the question was, whether an Excise officer 194 exercising the power of investigation under the Bihar and Orissa Excise Act, 1915, is a 'police officer ' within the meaning of Section 25, Evidence Act, Mudholkar, J. speaking for himself and Subba Rao, J., answered this question in the affirmative. What the majority held in that case may be summed up as under: The test for determining whether a person is a "police officer" for the purpose of Section 25, Evidence Act would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by Section 25, Evidence Act, that is, the recording of a confession. In other words, whether the powers conferred on the Excise officer under the Act are such as would tend to facilitate the obtaining by him of a confession from a suspect delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. It was further held that unlike the Customs officer on whom are conferred by the , powers of a limited character, which are analogous to those conferred on police officers, are not by themselves sufficient to facilitate the obtaining by him of a confession. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offences. But, it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them. It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25. Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less a police officer for the purposes of Section 25. Hence, a confession made by an accused under the Bihar and Orissa Act, recorded by an Excise Inspector who is empowered to investigate any offence under the Act, is inadmissible by reasons of the provisions of Section 25 of the Evidence Act. Raghubar Dayal, J., however, expressed a contrary opinion. He held that the Excise Inspectors empowered by the State Government under Section 77(2) of the Bihar Act, are not 'police officers ' within the meaning of Section 25 of the Evidence Act and that the aforesaid officers cannot be treated to he police officers for the purposes of Section 162 of the Code of Criminal Procedure, Section 162 does not 195 confer any power on a police officer. It deals with the use which can be made of the statements recorded by a police officer carrying out investigation under Chapter XIV of the Code. The investigation which the aforesaid Excise officer conducts is not under Chapter XIV of the Code, but is under the provisions of the Act and therefore, this is a further reason for non applicability of Section 162 of the Code to any statements made by a person to an Excise officer during the course of his investigating an offence under the Act. Although in Raja Ram Jaiswal 's case, the majority judgment distinguished the earlier decision in Barkat Ram 's case on the ground that therein, the question whether officers of departments other than the police on whom powers of an officer in charge of a police station under clause 14 of the Code of Criminal Procedure are conferred are police officers or not for the purpose of Section 25, Evidence Act, was left open and undecided, yet the fact remains that some of the criteria adopted by the majority in Barkat Ram 's case in arriving at the decision they did, in a Customs officer 's case was rejected and the test indicated by Subba Rao, J. in his minority judgment was substantially approved. Be that as it may, on facts, the distinguishing feature of Raja Ram Jaiswal 's case was that under the Bihar Excise Act, the powers of an officer in charge of a Police Station were expressly conferred on the Excise officer concerned in respect of the area to which he was appointed. The question whether a Deputy Superintendent of Customs and Excise was a 'police officer ' within the meaning of Section 25, Evidence Act, again came up for consideration before a Constitution Bench in Badku Joti Savant 's case, ibid. , Wanchoo, J. who delivered the unanimous opinion of the Bench, answered this question (at page 701), thus: "There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in Section 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case i support of this view is Nanoo Sheikh Ahmed vs Emperor. This view approved by Subba Rao J. in his minority judgment in Barkat Ram 's case). The other view which may be called the 196 narrow view is that the words "police officer" in Section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on. The leading case in support of this view is Radha Kishun Marwari vs King Emperor. The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court. We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act to which we turn now. (After examining some provision of the Central Act 1 of 1944, the judgment proceeded)". "It is urged that under sub section (2) of Section 21 a Central Excise officer under the Act has all the powers of an officer in charge of a police station under Chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in Section 25 of the Evidence Act. It is true that sub section (2) confers on the Central Excise officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub section (1) which gives power to a Central Excise officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under section 21 it is the duty of the Central Excise officer to whom an arrested person is forwarded to inquire into the charge made against such person. Further under proviso (a) to sub section {2) of section 21 if the Central Excise officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate. It does not however appear that a Central Excise officer under the Act has power to submit a charge sheet under Section 173 of the Code of Criminal Procedure. Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed. 197 police officer for purposes of clause (b) above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise officer will have to make a complaint under clause (a) above if he wants the Magistrate to take cognizance of an offence, for example, under Section 9 of the Act. Thus though under sub section (2) of Section 21 of the Central Excise officer under the Act has the powers of an officer in charge of a police station when investigating a cognizable case that is for the purpose of his inquiry under sub section (1) of Section 21. " The Court then distinguished Raja Ram Jaiswal 's case, thus: "Section 21 (of the Central Excises and Salt Act No. 44) is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915, which came to be considered in Raja Ram Jaiswal 's case, and which provided in terms that "for the purposes of Section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under Section 77, Sub section (2), is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station". It, therefore, cannot be said that the provision in Section 21 is on par with the provision in Section 78(3) of the Bihar and Orissa Excise Act. All that Section 21 provides is that for the purpose his inquiry, a Central Excise officer shall have the powers of an officer in charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise officer is not deemed to be an officer in charge of a police station. " On the above reasoning, the Court concluded that "mere conferment of powers of investigation into criminal offences under Section 9 of the Act does not make the Central Excise officer a police officer even in the broader view mentioned above". Following the decisions in Punjab State vs Barkat Ram (ibid), and Badku Joti Savant vs Mysore State (ibid), a Constitution Bench of this Court, in Ramesh Chandra vs State of West Bengal (ibid), reiterated that the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173, Code of Criminal Procedure. Applying this test, the Court held that since a Customs officer exercising power to make an inquiry cannot submit a report under Section 198 173 of the Code, he is not a police officer within the meaning of Section 25 of the Evidence Act. Again in Illias vs Collector of Customs, this Court held that although a Customs officer under the , has been invested with many of the powers similar to those exercisable by a police officer under Chapter XIV of the Code which he did not have under the old Act yet he is not empowered to file a chargesheet under Section 173 of the Code and therefore, he cannot be regarded as a "police officer" within the meaning of Section 25, Evidence Act. Shri Garg tried to distinguish these cases on the ground that they relate to Customs officers or Excise officers whose primary duties are to collect and prevent evasion of revenues, and that some of the powers of a police officer are conferred on them merely for the effective discharge of their duties as revenue officers. It is submitted that the members of the RPF are not revenue officers and their duties are confined to the protection of railway property, and prevention, detection and investigation of crimes relating to 'railway property '. Relying on the decision in Raja Ram Jaiswal 's case, it is urged that the real test to be applied for determining this question, is, whether the police powers conferred on an officer of the RPF are such as would tend to tempt or facilitate the obtaining by him a confession from a person suspected of the commission of an offence under the 1966 Act. It is argued that since an officer of the RPF conducting an inquiry has been invested qua 'railway property ' with almost all the powers or an officer in charge of a Police Station making an investigation under Chapter XIV of the Code, this test is amply satisfied to hold that he is a 'police officer ' within the meaning of Section 25 of the Evidence Act. At one stage, it was contended by Shri Garg that it could be spelled out from Section 8(2) of the 1966 Act that an officer of the Force had the power to present a charge sheet under Section 173 of the Code, also. In the alternative, it was submitted that the mere fact that an officer of the Force could initiate prosecution only by filing a complaint and not by making a report under Section 173 of the Code, was immaterial in regard to the satisfaction of This test, if, in fact, he had been invested with all other powers of investigation exercisable by a police officer under the Code, qua offences under the 1966 Act. Prima facie there is much to be said for the reasoning advanced by the learned counsel for the appellant, but as a matter of judicial discipline we cannot deviate from the ratio of Punjab State vs Barkat 199 Ram and Badku Joti Savant 's case, and the primary test enunciated therein for determining this question. Indeed, we are bound by the decision in State of U.P. vs Durga Prasad (ibid) which, following the ratio of the aforesaid cases, has held that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act, cannot be equated with an officer in charge of a Police Station making an investigation under Chapter XIV of the Code. It may be recalled that the primary test evolved in Badku Joti Savant 's case by the Constitution Bench, is: Whether the officer concerned under the special Act, has been invested with all the powers exercisable by an officer in charge of a Police Station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (chargesheet) under Section 173 of the Code. In order to bring him within The purview of a 'police officer ' for the purpose of Section 25. Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code. Nor is the ratio of the aforesaid decisions inapplicable merely because they related to a Customs officer or an Excise officer, and not to an officer of the RPF. The factual premises on which the ratio of Badku Joti Savant 's rests were substantially analogous to those of the instant case. That is to say, the powers of arrest, inquiry and investigation conferred on the Central Excise officers under Act 1 of 1944 (which was under consideration in that case) are very similar to those with which an officer of the RPF is invested under the 1966 Act. Under Section 13 of that Act of 1944, any Central Excise officer duly empowered by the Central Government in this behalf can arrest any person whom he has reason to believe to be liable to punishment. 'Section 18 provides that all searches made under that Act or any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898. Section 19 of that Act lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise officer empowered to send person so arrested to a Magistrate, or, if there is no such Central Excise officer within a reasonable distance, to the officer in charge of the nearest police station. Section 21 of the Act provides: "(1) When any person is forwarded under Section 19 to a Central Excise officer empowered to send persons so arrested to a Magistrate, the Central Excise officer shall proceed to inquire into the charge against him. 200 (2) For this purpose the Central Excise officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case. " It will be seen that these provisions in Sections 13, 18, 19 and 21 of the Central Act I of 1944, substantially correspond to the provisions in Sections 6, 7, 8 etc. Of the 1966 Act, which we have already noticed It will bear repetition that sub section 12) of section 8, under which an officer of the Force conducting an inquiry may exercise the same powers as an officer in charge of a police station investigating a cognizable case under the Code, is in pari materia with sub section (2) of Section 21 of Act 1 of 1944. It may be recalled that in the objects and Reasons of the Bill, which was enacted as 1966 Act, it was stated that this measure invests "powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs". The 1966 Act thus brings the status of officers of the RPF in the matter of inquiry, investigation and prosecution of offences under the Act substantially at par with that of an Excise officer under the Central Act 1 of 1944 and that of a Customs Officer under the . The ratio of all the decisions noticed earlier, therefore, applies in full force to the case of an officer of the RPF making an inquiry into an offence under the 1966 Act. In State of U.P. vs Durga Prasad (ibid), after carefully examining and comparing the powers of arrest, inquiry and investigation of an officer of the Force under the 1966 Act with those of a police officer under he Code, it was pointed out that such an officer of the RPF does not possess all the attributes of an officer in charge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry under the Act. On these premises, it was held that an officer of the RPF making an inquiry under the 1966 Act, cannot be equated with an investigating police officer. In reaching this conclusion, Chandrachud, J. (as he then was), speaking for the Court, appears to have applied the same test which was adopted in Badku Joti Savant 's case, when he observed: "The right and duty of an investigating officer to file a police report or a charge sheet on the conclusion of investigation is the hallmark of an investigation under the Code. Section 173(1)(a) of 201 the Code provides that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report. " The decision in Raja Ram Jaiswal 's case, on which Shri Garg relies, was distinguished, as was done in Badku Joti Savant 's case, on the ground that Jaiswal 's case involved the interpretation of Section 78(3) of the Bihar and Orissa Excise Act, 1915. In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer '. Thus, judged by the test laid down in Badku Jyoti Savant 's, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer ' within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section. This takes us to the second question. Question II The main contention of Shri Garg is that any confessional or incriminating statements recorded by an officer of the Force in the course of an inquiry under section 8(1) of the 1966 Act, cannot be used as evidence against the appellant in view of the constitutional ban against "compelled testimony" imposed by Article 20(3) of the Constitution. The argument is that as soon as a person is arrested by an officer of the Force on a suspicion or charge of committing an offence punishable under the 1966 Act, he stands in the character of a "person accused of an offence". That being the case proceeds the argument a statement made by such an accused person to an officer of the RPF making an inquiry against him can never be said to be voluntary, being subject to a legal compulsion under Section 9(3) of the 1966 Act to state the truth 202 upon any subject respecting which he is examined even if such state of might incriminate him. On these premises it is maintained that both the conditions necessary for attraction of the ban in Article 20(3) of the Constitution exist in the case of such statements. In this connection, Shri Garg has referred to the dissenting judgment of Subba Rao, J. in Barkat Ram (ibid); Kathi Raning Rawat vs The State of Saurashtra; K. Joseph Augusthi & Ors. vs M.A. Narayanan; Mohamed Dastagir vs The State of Madras; Bhagwan Das vs Union of India; Ramanlal Bhogilal Shah & Anr. vs D.K. Guha & Ors.; M.P. Sharma vs Satish Chandra; Smt. Nandini Satpathy vs P.L. Dani & Anr. ; and In re The Special Courts Bill. As against this, Mr. Nain, appearing for the respondent State, submits that the conditions necessary for the attraction of the ban in Article 20(3) do not exist in the instant case, because before the filing of the complaint in the Court, the appellant was not a "person accused of an offence". It is further urged that the compulsion contemplated by Clause (3) of Article 20 means "physical or mental compulsion" and not compulsion of law to state the truth; that freedom to tell lies is not within the protection of this clause. It was nowhere alleged that the confessional or incriminating statements in question were extorted by the RPF officer under physical duress, threat, inducement or mental torture. It is added that in any case, it is a question of fact to be established by evidence that any such compulsion was used in obtaining the incriminating statements. Clause (3) of Article 20 of the Constitution reads, thus: "No person accused of any offence shall be compelled to be a witness against himself. " An analysis of this clause shows three things: Firstly, its protection is available only to a "person accused of any offence". Secondly, the protection is against compulsion "to be a witness". Thirdly, this protection avails "against himself". It follows that if any of these ingredients does not exist, this clause (3), will not be attracted. Keeping this in mind, it will be appropriate to concentrate on the first point, as to whether during the inquiry 203 under Section 8 of the 1966 Act when the appellant made the incriminating statement in question, he was a "person accused of any offence" within the contemplation of Article 20(3). In M. P. Sharma vs Satish Chandra (ibid) which is a decision by a seven Judge Bench of this Court, it was held that determination of this issue will depend on whether at the time when the person made the self incriminatory statement, a formal accusation of the commission of an offence had been made against him. "Formal accusation" is ordinarily brought into existence by lodging of an F.I.R. Or a formal complaint to the appropriate authority or court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution. It is only on the making of such formal accusation that clause (3) of Article 20 becomes operative covering that individual with its protective umbrella against testimonial compulsion. The interpretation placed by the Court in M. P. Sharma 's case. On the phrase "person accused of any offence" used in Article 20(3) was reiterated in Bhagwan Das vs Union of India (ibid) was reaffirmed in Raja Narayanlal Bansilal vs Maneck Phiroz Mistry & Anr. Again, in the State of Bombay vs Kathi Kalu Oghad & Ors; one of the propositions enunciated by the Court was, that to bring a statement within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough, that he should become an accused, any time after the statement has been made. The same proposition was reiterated by Gajendragadkar C.J. in Joseph Augusthi (ibid), and again by the Constitution Bench in Ramesh Chand Mehta 's (ibid). In the instant case, at the time when the alleged incriminating statement was made before the officer of the RPF, no formal complaint in regard to the commission of an offence had been filed against him in Court, nor had any F.I.R. been lodged with the Police, specifically accusing the appellant or the author of that statement of the commission of an offence. It is, therefore, manifest that at the material time the author of the self incriminatory statements in question, did not fulfil the character of a "person accused of an offence" within the meaning of Article 20(3). The last authority to be noticed in regard to the interpretation of the phrase "person accused of any offence", is Ramanlal Bhogilal Shah 's case (ibid). The petitioner Ramanlal Bhogilal Shah was arrested under Section 19B of the Foreign Exchange Act. The grounds 204 purportedly served on him under sub section (1) of Section 19B for the offence under Section 4(2) and Section 22 of the Act, punishable under Section 23, were elaborate. The question arose whether after these grounds had been served on the petitioner, it could be said that he was 'a person accused of an offence ' within Article 20(3) of the Constitution. The petitioner was produced before the Magistrate, who released him on bail. Thereafter, First Information Report was recorded under Section 154, Criminal Procedure Code, and an order was obtained from the Magistrate, permitting the investigation to be made under Section 155(2), Criminal Procedure Code. The Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest which were served on the petitioner. Under these circumstances, the Court held that the petitioner was definitely a "person accused of an offence" within the meaning of Article 20(3) of the Constitution and at any rate, the petitioner was accused of an offence when the F.I.R. was recorded and therefore, the summons issued by the Enforcement Directorate would be illegal. At the same time, it was held that although the petitioner is a 'person accused of an offence ', the only protection that Article 20(3) gave him is that he could not be compelled to be a witness against himself, but this did not mean that he need not give information regarding matters which do not tend to incriminate him. Consequently, the Court did not set aside the summons and held that the petitioner was bound to appear before the Enforcement Directorate and answer such questions that did not incriminate him. To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person "accused of an offence" within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an F.I.R. Or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation had been made against the appellant when his statement(s) in question were recorded by the RPF Officer. At the relevant time of making the self incriminatory statements in question, therefore, the appellant did not stand in the character of a person accused of an offence and, as such, the protection of Article 20(3), will not be available to him. In view of this finding, we do not think it necessary for the decision of these appeals to go into the question whether legal compulsion to state the truth such as the one contained in Section 9(3) of the 1966 Act is, also, a compulsion interdicted by Article 20(3). 205 In the light of what has been said above, we would answer the legal proposition (formulated as Question No. II) propounded by the learned counsel for the appellant, in the negative. Question No. 3 was not raised or pressed at the time of arguments in the courts below. We, therefore, refuse to go into this question and pronounce in regard thereto. Before we part with this judgment, we may note here that the learned counsel for the respondent State has very fairly stated at the bar, that the State shall have no objection to the supply of copies of all the relevant documents and statements on which the prosecution intends to rely, to the accused appellants in the trial court. In view of this undertaking we thought it unnecessary to go into the legal aspects of this question. We will however, add that the prosecution shall also permit the accused appellant to inspect the other material that may have been collected by the inquiry officer, relevant to the charge against the accused appellant. With this observation, we would dismiss these appeals (Nos. 208 209 of 1974) and send the case back to the trial court for further proceedings in accordance with law. Since the case is already old, the proceedings shall be conducted as far as possible, from day to day on top priority basis, and disposed of preferably within three months of the date or which the records are received in the trial court. Since the legal questions raised before us in Special Leave Petition (Crl.) No. 630 of 1977 are the same as in Criminal Appeals Nos. 208 209 of 1974, and the learned counsel for the petitioners therein has adopted the arguments of Shri R.K. Garg, appearing for the appellant in Criminal Appeals Nos. 208 209 of 1974, that Special Leave Petition, after granting special leave to appeal, will also stand disposed of by this judgment. N.V.K. Appeals dismissed. [/INST]The Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975), was designed to regulate the issue of licenses to actual drivers of cycle rickshaws, plying within the municipal areas of the State. The petitioners in their Writ Petitions challenged the Act. ^ HELD: (Per Krishna Iyer & Chinnappa Reddy, JJ. Pathak J. agreeing with the scheme of directions framed). The Court framed the following scheme: (a) Every rickshaw puller including every petitioner, who has been a licensee within one year of the coming into force of the Act shall be entitled to apply to the Municipal Commissioner for a certificate or other document to the effect that he has been a licensee for rickshaw pulling. [369 F] (b) The Municipal Commissioner will verify the records and will grant the necessary certificate or other document within one month from the date of the application. [369 G] (c) on receipt of the municipal certificate the rickshaw puller will apply to the Credit Guarantee Corporation of India (Small Loans) under the Guarantee Scheme of 1971 for advance of a loan upto Rs. 900. [369 H 370 A] (d) The loan amount shall be repaid by the rickshaw puller in 15 monthly instalments. If there are delayed payments of instalments of loan, higher rate of interest will be recoverable. [370 F] (e) When the rickshaw pullers during the agricultural season go to work in their fields, they shall nominate other rickshaw pullers without employment to ply the rickshaws during that season. The Municipal Commissioner, if satisfied that the nomination made is bona fide will issue licence to such pullers or nominees of the licensed rickshaw pullers, in the agricultural season. [370 H 371 A] B. (I) Under the Constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental rights. [367 E] 367 (2) No higher duty or more solemn responsibility rests upon this Court A than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution. [F] (3) The success of well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and self ownership substituted. Judicial engineering to wards this goal is better social justice than dehumanised adjudication on the vires of legislation. [H 368 A] </s>

<s>[INST] Summarize the judgementAppeal No. 26 of 1956. Appeal by Special Leave from the Judgment and Order dated the 22nd April, 1954, of the Rajasthan High Court in Writ Petition No. 76 of 1951. N. C. Chatterjee, J. B. Dadachanji and M. section K. Aiyangar, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondents. August 31. The Judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal with the special leave of this Court against the judgment of the High Court of Rajasthan dated April 22, 1954. The appellant is a private limited Company, which was incorporated in 1945 in the former Kotah State. The income tax authorities sought to tax its profits and income for the assessment year 1950 51 corresponding to the previous year, 1949 50. The appellant claimed exemption under section 14(2)(c) of the Indian Income tax Act, 1922, as it stood before the amendment in 1953, contending that the exemption stood good even after the amendment. This claim was rejected by the High Court, which was moved under article 226 of the Constitution. Hence this appeal. Prior to the integration of Kotah State into the United State of Rajasthan in 1949, there was no income tax law in force in Kotah State. Till the formation of the State of Rajasthan, there was no such law in force in any part of Rajasthan, except Bundi State. The Indian Finance Act of 1950 made the Indian Income tax Act, 1922, applicable to the whole of India, except the State of Jammu and Kashmir, and suitably amended the Indian Income tax Act. Rajasthan then became, from April 1, 1950, a taxable territory. For the assessment year 1950 51, income tax was sought to be imposed in the State of Rajasthan. One 455 Madan Gopal Kabra move the High Court under article 226 of the Constitution to restrain the taxing authorities from claiming tax for the period prior to April 1, 1950, contending that inasmuch as Rajasthan was not a taxable territory before April 1, 1950, no tax for a period prior to that date could be demanded. This Court in an appeal by the Department against the decision of the High Court of Rajasthan, which had accepted the contention, held that the tax was leviable. It is not necessary to give the details of the decision on that occasion. The judgment of this Court is reported in The Union of India vs Madan Gopal Kabra (1). The present appellant and fourteen others filed petitions under article 226 of the Constitution, urging fresh grounds by a later amendment. Their contention was that section 14(2)(c) of the Indian Income tax Act, as it stood on April 1, 1950, granted an exemption, and that this exemption was not affected by the amendment of the said provision in 1953 even though the amendment was retrospective from April 1, 1950, unless the Finance Act, 1950, which applied the Income tax Act to this area was also amended. This contention was not accepted by the High Court which dismissed the petition under article 226, holding inter alia that this point was also decided by this Court against Madan Gopal Kabra. In this appeal, this point alone is argued, and it is contended that the point is still open for decision. Section 14(2)(c), as it stood before the amendment in 1953, read as follows: " The tax shall not be payable by an assessee (c) in respect of any income, profits or gains accruing or arising to him within Part B State unless such income, profits or gains are received or deemed to be received in or are brought into the taxable territories in the previous year by or on behalf of the assessee, or are assessable under section 12 B or section 42 ". The amendment provided " In section 14 of the principal Act in clause (c) of sub section (2), for the words and letter 1 Part B State ' (1) ; 456 the words the State of Jammu and Kashmir ' shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 1950 ". The result of this amendment was described by this Court in Kabra 's case (1) to be as follows: " It may be mentioned here that the exemption from tax under a. 14(2)(c) of the Indian Act of income accruing within Part B States was abrogated, except as regards the State of Jammu and Kashmir, by the amendment of that provision with effect from the first day of April, 1950." Mr. N. C. Chatterjee appearing for the appellant contends that the point cannot be considered to have been finally decided, and that the remark is descriptive only of what the Parliament had purported to do. He claims that the point can and should be reconsider. In support of his contention, be urges that the effect of the passing of the Indian Finance Act, 1950, and the application of the Indian Income tax Act to Rajasthan and other Part B States was to incorporate the Indian Income tax Act by reference in the Indian Finance Act with such modifications and amendments as were then made. Any subsequent amendment of the Indian Income tax Act had no effect on the original Act as incorporated by reference in the Indian Finance Act, unless the latter was suitably amended also. The argument which did not find favour in Kabra 's case (1) was again advanced, though in another form. It is that the amendment operates from April 1, 1950, and that the income accrued prior to April 1, 1950, and it was still exempt, because the exemption was withdrawn only from April 1, 1950. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier, represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950 51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950 51 conversely affected the (1) ; 457 income of the previous year, 1949 50 which is the subject matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income tax Act was applied, but the Income tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income tax Act made Rajasthan a taxable territory subject to the Indian Income tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. in fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950 51 onwards, and there could be no saving. The argument assumes the premise that the Income tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent nor warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income tax Act to this area, which it did by amending the definition of 'taxable territory ' in the Indian Income tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid. The appeal fails, and will be dismissed with costs. Appeal dismissed. [/INST]A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. It must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it, or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject mat ter, so that the inferior court might not have authority to enter on the inquiry or upon some part 0 697 it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. When an inferior court or tribunal which has the power of deciding facts is established by the legislature. it may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There, it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But the legislature may entrust the court or tribunal itself with a jurisdiction which includes the jurisdiction to determine whether the prelimi nary state of facts exists and on finding that it does exist, to proceed further or do something more. In the second case the rule that a tribunal cannot give itself jurisdiction by wrongly deciding certain facts to exist does not apply. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the par ties. Such jurisdiction is inherent in its very constitu tion as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appel late court so constituted. An order by an Additional Custodian in a proceeding under Ordinance No. XXVII of 1949 refusing to declare a person an evacuee and his property evacuee property is an order under section 7 of of the Ordinance and is appealable under section 24. A person claiming to be interested in an enquiry as to whether a person is an evacuee and his property evacuee property, who has filed a written statement and adduced evidence, is a "person aggrieved" by an order that the latter is not an evacuee and has a locus standi to prefer an appeal from the order. </s>

<s>[INST] Summarize the judgementition (Criminal) No. 1 45 1 of 1985. (Under Article 32 of the Constitution of India. ) R.K. Jain and Yogeshwar Prasad, R.K. Khanna, R.K. Bha tt and Dalveer Bhandari for the Petitioner. V.C. Mahajan, Tapas Ray, A.S. Nambiar, S.B. Bhasm e, Kapil Sibal, R.B. Misra, A. Subhashini, Y.P. Rao, Ms. section Janani, Ms. Urmila Kapur, D.K. Sinha, J.R. Dass, P.K. Man o har, Ms. section Vasudevan, M. Veerappa, Uma Nath, R.K. Mehta, V. Krishnamurthy, A.S. Bhasme, K.R. Nambiar, B.D Sharma, Ka i lash Vasudev, D.N. 62 Mukherjee, D. Goburdhan, Ms. Kamini Jaiswal, T.V.S.N. Char i, Mahabir Singh, Probir Chowdhry, M.N. Shroff, A. Subba Ra o, R.S. Suri, G. Probhakar, K. Ram. Kumar, S.K. Bhattachary a, L.R. Singh, A.K. Sanghi, C.V. Subba Rao, R. Venkataraman i, Salman Khurshid, Gopal Singh, Mrs. Vimla Sinha and Mrs. H. Wahi for the Respondents. The following Order of the Court was delivered: ORDER This writ petition filed in 1985 has been heard on different occasions and several orders and directions ha ve been made from time to time with a view to providing reli ef to delinquent children detained in jails. On August 2 9, 1988, this Court made an order wherein so me such directions have been excerpted and it is not necessa ry to make any detailed reference to those directions now. In 1986 the District Judges of the entire country in response to the directions made by this Court supplie d, inter alia, the particulars of under trial and convict ed children found in regular jails within their respecti ve jurisdiction. On the basis of the said reports it was fou nd that in Assam, Bihar, Orissa, Punjab and West Bengal, t he number of such children in regular jails was 64, 247, 60, 63 and 437 respectively. There was no such child in any regul ar jail of Gujarat but in varying numbers not exceeding 30 to 35 they were found in other States. Thereafter some of t he States have filed affidavits indicating release from custo dy or transfer of such children from jails and have stated th at the position at present is very different and the number is either nil or negligible. With the lapse of two years ' time since such reporti ng was done there is every likelihood of a change in th at position. Even otherwise, in the intervening period t he Juvenile Justice Act, 53 of 1986, (hereinafter referred to as the 'Act ') has come into force in the whole of the cou n try excepting the State of Jammu & Kashmir with effect fr om 2.10.1987. The Act provides for setting up of juveni le homes, special homes and observation homes by the Sta te Governments. Chapter IV provides for dealing with delinque nt juveniles. In this back drop it is necessary to get fre sh detailed reports from the District Judges and update t he figures as to the exact number of delinquent juveniles, as defined in section 2(a) of the Act, still detained in regul ar jails. At the same time it is necessary that a report as to whether juvenile 63 Courts as required under section 5 of the Act have been set up and juvenile homes, special homes and observation homes ha ve been established as required by sections 9, 10, and 11 should be obtained. Every District Judge is, therefore, directed by this order to report within 4 weeks from today to the Regi s try of this Court through the Registrar of the appropria te High Court as to the exact position obtaining on 28.2. 19 89 in regard to the particulars indicated above. We would li ke to place on record that on the earlier occasion response to directions by this Court had taken more than six month s; repetitive adjournments had become necessary and complian ce was effected by indicating coercive steps. We hope and tru st there would be no repetition. Section 62 of the Act empowers the State Governments to make rules to carry out the purposes of the Act. The sche me of the Act is such that it cannot be properly enforc ed unless apropriate rules are framed and brought into forc e. Counsel appearing before us for the different States are n ot in a position to make a definite statement that the Stat es they represent have framed rules and brought them in to force. We, therefore, direct that the District Judges whi le making their reports shall also indicate whether rules ha ve been framed and whether such rules are already in forc e. Counsel appearing before us are also directed to inform t he Registry by written memorandum about the framing of rul es and bringing them into force in the respective States. If such rules have not been framed in any State, by this ord er we direct such State or States to frame the same on or before 7th of April, 1989 and to bring them into for ce without any further delay thereafter. Section 2(h) defines 'juvenile ' to mean: "a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. " Official reports indicate that 35 to 40 per cent of t he total population of the country would be covered by t he definition. As such about 30 crores of young boys and gir ls come within the purview of the Act. There can be no t wo opinions that these children of today are the citizens of tomorrow 's India and the country 's future would necessari ly depend upon their proper hygiene physical and mental. T he problem is, therefore, gigantic; at the same time, there is demand for immediate attention. Several counsel appeari ng before us have told us and we agree with their submissio ns that unless the importance of the matter is properly pe r ceived and the response is adequate both in 64 regard to sufficiency of actions and immediacy of attentio n, the purpose of the Act cannot be fulfilled. Children requi re the protective umbrella of society for better growth a nd development as they are not in a position to claim the ir entitlement to attention, growing up, food, education a nd the like. It is the responsibility of the society and is o ne of the paramount obligations of those who are in charge of governance of the country today to attend to the children to make them appropriate citizens of tomorrow. We are of the view that in the setting indicated t he matter perhaps requires overseeing by the Court. For coord i nation between the Union Government and the State Governme nt and between authorities within the State, at the initi al stage and it would be in the interest of children that t he matter is obverseen by this Court and when the machinery is properly geared the responsibility of overseeing may be entrusted to the respective High Courts. With a view to working out the modality and to ma ke overseeing convenient, it is necessary that a scheme shou ld be evolved. Counsel appearing before us have suggested th at a group of advocates should be entrusted with the work of making a draft scheme and place it before the Court for i ts consideration. We accordingly nominate Messrs V.C. Mahaja n, Yogeshwar Prasad, R.K. Jain, Tapas Roy and Mukul Mudgal w ho are advocates appearing for some of the States to draw up a scheme and file it in the Registry of the Court by 7 th April, 1989. As we pointed out earlier from the reports it has be en found that the number of children in regular jails were t he highest in West Bengal and Bihar. Mr. Tapas Roy representi ng the State of West Bengal relies upon an affidavit fil ed before this Court to contend that the position has substa n tially changed subsequent to the reports and at prese nt perhaps the number of children in regular jails is eith er nil or very small. He has personally undertaken to colle ct the particulars and furnish the same by way of the memora n dum to the Registry on or before 7th of April, 1989. So f ar as the State of Bihar is concerned, Mr. Goburdhan is not in a position to make any statement. From the analysis prepar ed based upon the report of the District Judges, it appea rs that there were 27 children in the District Jail of Deogar h, about 13 in the jails at Patna and 17 in the jails at Bh a galpur. We are of the view that Mr. A.S. Nambiar, Sr. Adv o cate of this Court should be appointed as Commissioner to visit these jails in the three districts of Bihar and co l lect the necessary particulars of juvenile delinquents 65 housed in those jails and report to this Court on or befo re 7th of April, 1989. He shall be provided all facilities by the State Government and its officers as may be deem ed reasonable and necessary for implementing this direction. He shall also be entitled to reimbursement of his expenses. It becomes necessary that the Registry should ha ve appropriate funds to meet the expenses from time to tim e. We, therefore, direct that the Union of India shall depos it a sum of Rs.50,000 while each of the States of Bihar a nd West Bengal and Uttar Pradesh is directed to deposit a s um of Rs. 15,000. Such deposits shall be made on or before 15 th of April, 1989. The expenses have of course to be met by a ll the States but in due course an order directing other Stat es to pay to the fund and final apportionment, if necessar y, shall be ordered. Notice be issued to the learned Attorney General to appear and assist the Court in this proceeding. The directions indicated above must be worked out with in the time frame as we are fixing the case for further heari ng at 2.00 P.M. on 24th of April, 1989. [/INST]The second respondent, who is the predecessor in inter est of the first respondent, had on. 26th September, 1946 leased out the land in dispute to the appellant at the first instance for a period Of 10 years. The lease however provid ed to the lessee/appellants option of extension at enhanced rent, twice for successive periods of 5 years, and a third option of extension for a further maximum period of one year. The appellants are stated to have exercised their option of extension for two successive periods of five years, hot failed to exercise the option of extension for one year thereafter. On that ground the first respondent instituted a suit for ejectment khas, possession and mesne profits. The appellants, as defendants, contested the malt stating, inter alia, that they did not exercise the option for renewal after the expiry of the original tern of 10 years as they became thika tenants from 28th February, 1949 i.e. the date of commencement of the Calcutta Thika Tenancy Act, 1949 as admitted by the second respondent in two judi cial proceedings before the Controller under the Calcutta Thika Tenancy Act, 1949. It was further stated that they never paid any enhanced rent; and that the first respond ent 's claim for the differential rent was rejected in the first respondent 's suit, and ultimately the special leave petition filed in the Supreme Court in that matter was also dismissed. 402 The suit for ejectment in the present suit was decreed by the Trial Court. The Appellate Court, while dismissing the appellants appeal, held that (1) the lease was for a period of 20 years and not for a period of less than 12 years, and hence sub section 5(b) of Section 2 of the Act had no application; and (2) the respondent were not barred by waiver, estoppel, res judicata or principles analogous thereto because of the earlier judicial proceedings filed by the second respondent as there could be no question of giving a status under the Act when in the facts of the case such a status was not available. The High Court dismissed the appellants ' second appeal. Before this Court it was urged on behalf of the appel lants that (1) there could be no controversy about the appellants ' status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants regular payment of rents, rates and taxes and enhancement of rent, which contingency did not happen as they did not pay any enhanced rent, but simply were holding over; (2) the second respondent admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status. On the other hand, it was urged on behalf of the re spondent that the lease having clearly been for a period of 20 years, the appellants have rightly been held not to be thika tenants under the Act; and that there could be no estoppel against a statute. Dismissing the appeal, it was, HELD: (1) Every contract is to be construed with refer ence to its object and the whole of its terms. The best interpretation is made from the context. The whole context must be considered to ascertain the intention of the par ties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequen tibus '; every part of it my be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. [409E G] N.E. Railway vs Hastings, (267), referred to. (2) In the construction of a written instrument, it is legitimate and in order to ascertain the true meaning of the words used and, if that be doubtful, it is legitimate to have regard to the circumstances sur 403 rounding their creation and the subject matter to which it was designed and intended they should apply, [410A B] (3) It is pertinent to note that the word used is 'exte nsion ' and not 'renewal '. To extend means to enlarge, ex pand, lengthen, prolong, to carry out further than its original limit. Extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension ' and 'renewal ' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during addi tional period by the performance of the stipulated act. In other words, the word 'extension ' when used in its proper and usual sense in connection with a lease means a prolonga tion of the lease. [411C E] (4) Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years as the Schedule specifically men tioned the lease as "for a stipulated period of twenty years." [411E] Kanai Lal vs Paramnidhi, ; ; Mahadeolal Kanodia vs Administrator General of West Bengal, ; ; Annapuma vs Tincowrie Dutt, ; ; Shaf fiuddin & Ors. vs G.C. Banarjee, and Sheikh Gufan vs S.K. Ganguli, ; distinguished. (5) No particular order from the previous judicial proceedings conferring the status of thika tenants on the appellants has been shown. The special leave petition was dismissed by the Supreme Court "without going into the question whether the Thika Tenancy Act was applicable or not. " Hence, no status could be said to have been deter mined. [413D F] (6) The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the asser tion of a right at the proper opportunity. [413F G] (7) Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surren der the right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any exist 404 ing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of a right in question. Nothing of the kind could be proved in this case to estopp the first respondent, who had filed the suit at the proper opportunity after the land was trans ferred to him. [413G H; 414A B] Shanti Devi vs A.K. Banerjee, , referred to. </s>

<s>[INST] Summarize the judgementCivil Appeals Nos. 85 & 389 of 1957. Appeal from the judgment and order dated August 26, 1955, of the Calcutta High Court in Income tax References Nos. 44 of 1954 and 17 of 1953. section Mitra and P. K. Mukherjee, for the appellant (in C. A. No. 85/57.) N. C. Chatterjee and P. K. Ghosh, for the appellant (in C. A. No. 389/57). R. Ganapathy Iyer, R. H. Dhebar and D. Gupta, for the respondent. April 15. The judgment of Sinha and Kapur, JJ., was delivered by Sinha, J. Hidayatullah, J., delivered a separate judgment. SINHA, J. The common question of law arising in these two appeals on certificates of fitness granted by the High Court of Calcutta under section 66A(2) of the Indian Income tax Act, 1922, is the effect and scope of the words " constituted under an instrument of partnership" in section 26A of the Income tax Act, which, in the course of this judgment, will be referred to as the Act. 644 The facts of the two cases, leading upto these appeals, though not dissimilar, are not identical. They are, therefore, set out separately. In Civil Appeal No. 85 of 1957, Messrs. R. C. Mitter and Sons, 54, Rani Kanto Bose Street, Calcutta, claim to be a firm said to have been constituted in April 1948, with four persons whose names and shares in the nett profits of the partnership business, are stated to be as under (a) Ramesh Chandra Mitter 40 per cent. of the nett profits. (b) Sudhir Chandra Mitter 30 per cent. of the nett profits. (c) Sukumar Mitter 20 per cent. of the nett profits. (d)Sushil Chandra Mitter 10 per cent. of the nett profits. The firm intimated its bank, the Bengal Central Bank, Limited, (as it then was), of the constitution of the firm as set out above, by its letter dated April 15, 1948. The letter also stated that a partnership deed Was going to be drawn up and executed by the partners aforesaid, and that the deed so drawn up, will be forwarded to the bank in due course. Though the firm is said to have come into existence in April 1948, the deed of partnership which is set out as annexure " A " at P. 5 of the paper book, was drawn up only on September 27, 1949. This deed of partnership appears to have been registered under the provisions of the Indian Partnership Act, on October 1,2, 1949. It was also forwarded to the Bengal Central Bank, Ltd., Head Office at Calcutta, as it appears from the seal of the bank and the signature dated December 7, 1949. An application to register the firm under section 26A, for the assessment year 1949 50, was made to the Income tax Authorities. The date of the said application does not appear from the record before us. The application was rejected by the Income tax Authorities. The firm preferred an appeal to the Income tax Appellate Tribunal, which was also dismissed by the Tribunal by its order dated September 7, 1953. The ground of the order of the Tribunal was that as the firm admittedly 645 was formed by a verbal agreement in April 1948, and not by or under an instrument in writing dated September 27, 1949, and as the assessment was for the year 1949 50, for which registration of the firm was sought, the registration could not be ordered. The Tribunal also referred to the letter aforesaid to the Bengal Central Bank, and observed that the letter merely contained information as to the formation of the partnership and of the personnel thereof, but it did not contain the terms on which the partnership had been formed. It also showed that a partnership had been created but not by deed. Hence, the Tribunal further observed, the letter might be useful for consideration on the question of the genuineness of the firm, but it could not fulfil the requirements of section 26A, namely, that the firm should be constituted under an instrument of partnership. Therefore, the Tribunal held that assuming the firm to be genuine, it was not entitled to be registered under section 26A of the Act. Thereupon, the assessee moved the Tribunal under section 66(1) of the Act. That application was granted by the order dated February 2, 1954, and the case stated to the High Court for its decision on the following question : " Whether the assessee firm which is alleged to have come into existence by a verbal agreement in April, 1948, is entitled to be registered under section 26A for the purpose of assessment for 1949 50, where the Instrument of Partnership was drawn up only in September, 1949, after the expiry of the relevant previous year ". The High ' Court Bench, presided over by Chakravarti, C. J., by its judgment dated August 26, 1955, answered the question in the negative. The learned Chief Justice considered the matter from all possible view points, including grammatical, etymological and textual matters, and came to the conclusion that " constituted " meant created ". He also considered that the preposition under " is " obviously inappropriate after having convinced himself that " constituted could be equated with "created". He also found no difficulty in observing that " some of the 646 paragraphs of the Form appear to be ill adjusted to the provisions of the Act and the Rules ". In the end, therefore, he concluded with the remarks: " It appears to me to be desirable that the language of the section, as also that of the Rules should receive legislative attention ". In Civil Appeal No. 389 of 1957, Messrs. D. C. Auddy & Brothers, Calcutta, claim to be a partnership consisting of Dulal Chand Auddy, Prem Chand Auddy, Gora Chand Auddy and Kalipada Nandy. The partnership business is said to have begun in June, 1944. An application was made on August 24,1949, for the registration of the partnership. The Income tax Officer and the Appellate Assistant Commissioner were of the opinion that the partnership was not a genuine one, and could not be registered. Another reason for not ordering registration was that the partnership deed, having been executed on June 2, 1948, could not be operative during the two years under consideration, namely, 1945 46 and 1946 47. On appeal, the Income. tax Appellate Tribunal rested its decision on the finding that the alleged partnership had not been constituted under an instrument of partnership within the meaning of those words in section 26A of the Act. At the instance of the assessee, the Tribunal framed the fol lowing question for determination by the High Court: " Whether the assessee firm constituted orally in June, 1944, can validly be registered in the assessment years 1945 46 and 1946 47 under Section 26A of the Indian Income Tax Act on the basis of a Memorandum of Partnership executed in June 1948. " The other parts of the statement of the case by the Tribunal, refer to the merits of the assessment, with which we are not concerned in this appeal. Hence, it is not necessary to set out those facts. On this part of the statement of the case, the High Court gave the same answer as in the other appeal. In this case also, the High Court granted the necessary certificate under section 66A(2), read with article 135 of the Constitution. As both the cases raise the same question of law, they have been heard together, and will be governed by this judgment. 647 It is convenient at this stage to set out the relevant provisions of the Act. Section 26A is in these terms :" 26A. Procedure in registration of firms. (I) Application may be made to the Income tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or super tax. (2) The application shall be made by such person or persons and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed and it shall be dealt with 'by the Income tax Officer in such manner as may be prescribed. " The section contemplates the framing of rules laying down the details of the Form in which the application has to be made and the particulars which should be stated in the application, and other cognate matters. Section 59 of the Act, authorizes the Central Board of Revenue, subject to the control of the Central Government, to make rules for carrying out the purposes of the Act, and sub section (5) of section 59 provides that rules made under the section, shall be published in the Official Gazette, and " shall thereupon have effect as if enacted in this Act". Income tax Rules 2 to 6B lay down the details of the procedure for making an application for the registration of a firm, as contemplated under section 26A, quoted above. These rules have been amended extensively in 1952, but we are concerned in this case with the rules before those amendments. Rule 2 requires such an application to be signed by all the partners personally, and to be made before the income of the firm is assessed for the year, under section 23 of the Act. Rule 3 requires that the application be made in the Form annexed to the rule, and that the application shall be accompanied by the original Instrument of, Partnership under which the firm is constituted. . The Form appearing in r. 3, requires the assessment year to be specified. Thus, the registration is for a particular year of assessment, and not for future years also, and therefore, the application for registration has 648 to be made every year, which in fact means an application for renewal of the registration. Paragraph 3 of the Form requires a certificate to be signed by the applicants for registration, to the effect that the profits (or loss, if any) of the previous year were divided or credited as shown in Section B of the Schedule. The Form contains the Schedule in 7 columns which require the names of the partners, their addresses, the date of admittance to partnership, their shares in the profits or loss, etc., to be filled in. Under the Schedule, there are Section A and Section B. Section A has to contain particulars of the firm as constituted at the date of the application, and Section B has to contain the particulars of the apportionment of the income, profits or gains (or loss) of the business in the previous year between the partners who in that previous year were entitled to share therein. Rule 4 provides that if the Income tax Officer. is satisfied that there is or was a firm in existence constituted as shown in the instrument of partnership, and that the application has been properly made, he has to enter a certificate at the foot of the Instrument of Partnership that the firm has been registered under section 26A of the Act, and that the certificate of registration shall have effect for the assessment for the year specified therein. Rule 5 is as follows:" 5. The certificate of registration granted under Rule 4 shall have effect only for the assessment to be made for the year mentioned therein. "And Rule 6 makes provision for the certificate of registration to be renewed for a subsequent year, on an application being made in that behalf in accordance with the preceding Rules. It is manifest that for a true and proper construction of the relevant provisions of the Act, relating to registration of firms, sections 26, 26A and 28, and the Rules summarized above, have to be read together. So read, it is reasonably clear that the ' following essential conditions must be fulfilled in order that a firm may be held entitled to registration: (1) That the firm should be constituted under an Instrument of Partnership, specifying the individual shares of the partners. 649 (2) That an application on behalf of, and signed by, all the partners, containing all the particulars as set out in the Rules, has been made; (3) That the application has been made before the assessment of the income of the firm, made under section 23 of the Act (omitting the words not necessary for our present purpose), for that particular year; (4) That the profits (or loss, if any) of the business relating to the previous year, that is to say, the relevant accounting year, should have been divided or credited, as the case may be, in accordance with the terms of the Instrument; and lastly, (5) That the partnership must have been genuine, and must actually have existed in conformity with the terms and conditions of the Instrument. It is clear from what has been said above with reference to the relevant provisions of the Act, that the certificate of registration has reference to a particular assessment year, and has effect for the assessment to be made for that particular year. In other words, the terms of the partnership should appear in the Instrument of Partnership in respect of the relevant accounting year. It is equally clear that the firm to be registered, should have been in existence during the accounting year, " constituted as shown in the Instrument of Partnership ". The Rules, thus, contemplate a document operative during the accounting year. We are not here concerned with the further question whether the document should be in existence at the very inception of the accounting year, or before the year is out. The provisions of the Act, set out above, do not present any serious difficulty except for the words it constituted under an Instrument of Partnership " occurring in section 26A and the relevant Rules. On the interpretation of these words, there has been a conflict of judicial opinion, as will presently appear. On behalf of the assessee appellants, it has been contended that so long as the assessment has not been made, the assessees are entitled to have their firms registered in accordance with the terms of the Instrument of 82 650 Partnership, irrespective of the year in which the Instrument may have come into existence. Strong reliance was placed upon the decision of the Bombay High Court (Chagla, C. J., and Tendolkar, J.) in the case of Dwarkadas Khetan & Co. vs Commissioner of Income tax, Bombay City, Bombay(1), wherein, the following observations have been made: " Any firm can make an application under section 26A for registration and the two conditions that it has got to comply with are that it must be constituted under an instrument of partnership and the second condition is that the instrument of partnership must specify the individual shares of the partners. If these two conditions are satisfied it would be entitled to registration. The section does not say that the firm must be constituted by the instrument of partnership. It does not require that the firm must come into existence by reason of the instrument of partnership, or that the firm should be the creature of the instrument of partnership, or that the firm must not exist prior to the instrument of partnership being executed. In the case decided by the Bombay High Court, the Instrument of Partnership had been executed on March 27, 1946, with effect from January 1, 1946. On an application made to the Department to register the firm, the matter was determined by the Income tax Appellate Tribunal against the assessee on the ground that the partnership was in existence before the deed was executed, and that, therefore, it could not be registered. Before the Bombay High Court, reliance had been placed on behalf of the Department on the decision of the Calcutta High Court, now before us in appeal, as also on a decision of the Punjab High Court. The decision of the Calcutta High Court now under examination, in the case of R. C. Mitter & Sons vs Commissioner of Income tax (2), takes the view that section 26A of the Act contemplates a firm created or brought into existence by an Instrument of Partnership, which governs the distribution of shares in the relevant accounting period. Such a deed should have (1) [1956) , 907. (2) , 704, 705. 651 come into existence on or, before the commencement of the relevant accounting period. The other decision relied upon in the Bombay High Court, had been given by a Division Bench of the Punjab High Court, reported in Padam Parshad Rattan Chand vs Commissioner of Income tax, Delhi (1). On the other hand, it has been contended on behalf of the Revenue that in order to entitle a firm to be registered, the firm should have been created by an Instrument of Partnership, or at any rate, such an Instrument should be in existence during the relevant accounting year, that is, the year previous to the year of assessment in respect of which the application for registration has been made. For the first part of the submission on behalf of the respondent, there is ample authority in the decision under appeal, which bad been relied upon before the Bombay High Court. In that case, (R. C. Mitter & Sons vs Commissioner of Income tax (supra) (2) ), Chakravarti, C. J., who delivered the opinion of the Court under section 66(1) of the Act, after a very elaborate discussion, came to the conclusion which may best be expressed in his own words, as follows: " If by the expression I constituted under an instrument of partnership ' is meant a firm which originated in a verbal agreement but with respect to which a formal deed was subsequently executed, there would be no room in the section for partnerships actually created by an instrument and such partnerships, although most obviously entitled to registration, would be excluded from the purview of the section. Even etymologically or textually, I do Dot think that the word constituted ', when used in relation to a firm or such other body, can mean anything but I created when the reference is to some deed or instrument to which the inception of the firm or other body is to be traced. " After having, thus, held that section 26A contemplated firms created or brought into existence by a deed in writing, he had no difficulty in substituting " by " for " under ", thus, making the crucial words " constituted (I) (2) , 704, 705. 652 by " instead of " constituted under ". In our opinion, the learned Chief Justice fell into the error of re constructing the provisions of the statute, instead of construing them. The word " by " could be substituted for the word " under " in section 26A only if the words, as they stand in the section, were not capable of making sense, and it would, thus, have been necessary to amend the wording of the section. Turning his attention from the wording of the section to that of the Rules and the Form appearing under the Rules, he again came to the conclusion that " some of the paragraphs of the Form appear to be ill adjusted to the provisions of the Act ". Referring to other parts of the Rules, he was constrained to observe that they" would lend strong support to the view that what is meant by 'any firm constituted under an instrument of partnership ' in section 26A is no more than a fir of which the constitution appears from an instrument in writing. It is obvious that if such be the meaning of the expression 'constituted under an instrument of partnership ', the instrument need not be one by which the partnership was created ". But then he attempted to get over that difficulty by observing that the language of the Rules and the Form could not supersede a provision contained in the Act itself. He further opined that the language in para. 4(1) is " un doubtedly unsatisfactory ". In our opinion, any attempt to reconstruct the provisions of the relevant section and the Rules, on the assumption that the intention of the legislature was to limit the registration of firms to only those which have been created by an Instrument of Partnership, is, with all respect, erroneous. The proper way to construe the provisions of the statute is to give full effect to all the words of the relevant provisions, to try to read them harmoniously, and then to give them a sensible meaning. Hence, we have to consider, at the threshold, the question whether the words " constituted under an Instrument of Partnership " have some meaning which can be attributed to them harmoniously with the rest of the relevant provisions. A partnership may be created or set up by a contract in writing, 653 setting out all the terms and conditions of the partnership, but there may be many cases, and perhaps, such cases are more numerous than the other class, where a partnership has been brought into existence by an oral agreement between the parties on certain terms and conditions which may subsequently be reduced to writing which will answer the description of an Instrument of Partnership. Such an instrument would, naturally, record all the terms and conditions of the contract between the parties which,. at the initial stages, had not been reduced to writing. In such a case, though the partnership had been brought into existence by an oral agreement amongst the partners, if the terms and conditions of the partnership have been reduced to the form of a document, it would be right to say that the partnership has been constituted under that instrument. The word " constituted " does not necessarily mean " created " or " set up ", though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 & 876, the word " constitute " is said to mean, inter alia, " to set up, establish, found (an institution, etc.) " and also " to give legal or official form or shape to (an assembly, etc.) ". Thus, the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R. C. Mitter and Sons vs Commissioner of Income tax(1), under examination now, was not, therefore, right in restricting the word " constitute " to mean only " to create ", when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. vs Commissioner of Income tax, Bombay City, Bombay (2), was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an (1) , 704, 705. (2) , 907. 654 oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word " constitute " in the larger sense, as indicated above, the difficulty in which the learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had sub. sequently been constituted under written deeds. The purpose of the provision of the Income tax Acts. 26A is not to compel the firms which had been brought into existence by oral agreements, to dissolve themselves and to go through the formality of constituting themselves by Instruments of Partnership. If we construe the words " constituted under " in that wider sense, we give effect to the intention of the legislature of compelling a firm which bad existed as a result of an oral agreement, to enter into a document defining the terms and conditions of the partnership, so as to bind the partners to those terms, before they could get the benefit of the provisions of section 23 (5) (a). Section 23 (5) (a) confers a privilege upon partners who may find it more worth their while to be assessed upon their individual total income than upon the total income of the partnership. It is, therefore, very important from the point of view of the Revenue that the Department should be apprised in time of the true constitution of the partnership, the names of the true partners and the precise share of each of them in the partnership profits (or loss, if any). The very object of this provision will be defeated if the alleged partner ship is not genuine, or if the true constitution of the partnership and the respective shares of the partners, are not fully and correctly placed on record as soon as possible, for the purpose of 'assessment. In this connection, the provisions of section 28(2) of the Act, are also worth noticing. That sub section provides that if the Income tax Officer or the Appellate Authorities under the Act, are satisfied that the profits of a registered firm have been distributed otherwise than 655 in accordance with the shares of the partners, as shown in the Instrument of Partnership registered under the Act, and governing such distribution, and that any partner has concealed any part of his profits, the penalty prescribed therein may be imposed upon such a partner. Unless the Instrument of Partnership has been registered in respect of the accounting year and before the assessment has been done, the penal provisions aforesaid cannot be enforced. It is, therefore, essential, in the interest of proper administration and enforcement of the relevant provisions relating to the registration of firms, that the firms should strictly comply with the requirements of the law, and it is incumbent upon the Income tax Authorities to insist upon full compliance with the requirements of the law. But, in our opinion, there is no warrant in the words of the relevant provisions of the statute for restricting registration under section 26A of the Act to those firms only which have been created or brought into existence by an Instrument of Partnership. In our opinion, it is more in consonance with the terms of the relevant provisions of the Act, referred to above, to hold that the words " constituted under an instrument of partnership " include not only firms which have been created by an Instrument of Partnership but also those which may have been created by word of mouth but have been subsequently clothed in legal form by reducing the terms and conditions of the partnership to writing. We have already indicated that there has been a conflict of judicial opinion in the different High Courts in India on the question now before us. But on a consideration of the facts in each case, it will be found that the decision arrived at in most of the cases, was correct, though the reasons given appear to have gone beyond the requirements of the case. The decision of the Bombay High Court in Dwarkadas Khetan & Co. vs Commissioner of Income tax, Bombay City, Bombay (1), discloses that the partnership then in question had come into existence with effect from the beginning of 1946, though the Instrument of Partnership (1) [1956) , 907. 656 was executed on March 27, 1946. Thus, the Instrument of Partnership came into existence during the accounting year, whatever that year may have been, because the year 1946 was the starting year of the partner Ship. Hence, even the earliest assessment year, presumably the year 1947 48, would be governed by the terms and conditions of the written Instrument of Partnership aforesaid. The decision of the Bombay High Court was followed by the same Bench of that Court in the case of Commissioner of Income tax, Bombay North vs Shantilal Vrajlal & Chandulal Dayalal & Co. (1). In the second case, the learned Judges ruled that the second partnership deed of September 12, 1951, which set out the names and shares of all the partners who constituted the partnership, could be registered in respect of the accounting year November, 1948 to October, 1949. This conclusion was arrived at without even a mention, far less a discussion, of the relevant provisions of the Act. Apparently, the matter was not critically placed before the learned Judges, when they decided the second case. The con clusion in this case is, with all respect, apparently wrong in view of our conclusion that the Instrument of Partnership should have been in existence in the accounting year. In the High Court of Punjab, the question was fully discussed in a judgment of a Division Bench, given by one of us (Kapur, J., as he then was), in the case of Kalsi Mechanical Works, Nandpur vs Commissioner of Income tax, Simla (2). In that case, the firm had come into existence by a verbal agreement in June, 1944. The deed of partnership was drawn up as late as May 9, 1949. The application for registration of the firm under section 26A for the assessment year 1949 50, was dismissed by the lncome tax Authorities as also by the Tribunal. The High Court, after an elaborate examination of the relevant provisions of the Act, including the Rules and the Forms, upheld the orders of the Department. The conclusion of the Bench was in these terms: " The sections of the Income tax Act show that (1) (2) , 361. 657 for the purpose of registration it is necessary that the firm should be constituted by an instrument of partnership and in my opinion the Rules read with Sections 26 and 28 of the Act indicate that such a firm as is constituted under an instrument of partnership should have been in existence during the account period and should not come into existence during the assessment year, and if it was not in existence during the account period it cannot be registered so as to affect the liabilities of the partners for income tax accruing during the account period. " The conclusion reached is correct, except, with all respect, for the observation that under section 26A, it is necessary that the firm should be constituted " by " an instrument of partnership. That is the leading judgment in the High Court of Punjab. It was followed by another Division Bench of that Court in the case of Padam ParshadRattan Chand vs Commissioner of Income tax, Delhito the effect that constituted under an instrument in section 26A, meant created or formed by a formal deed". In this case, the business of the firm had started from April 1, 1947, but the Instrument of Partnership was executed on April 10, 1950. The application for registration was made in respect of the assessment year 1948 49. It is clear with reference to these dates that the Instrument of Partnership was not in existence either during the accounting year or even during the assessment year, and the Court, therefore, rightly held that the partnership could not be registered in respect of the assessment year; but they proceeded further to observe that there was no objection to the firm being treated as having been constituted under the Instrument as from the date of the Instrument itself. The answer of the Court to the question posed, was that the firm could be registered not in respect of the assessment year for which the application had been made, but with effect from the date of the Instrument. Apparently, the attention of the Court was not drawn to the Rules aforesaid, particularly, Rules 2 and 3, which require (1) 83 658 that the application has to be made before the assessment is completed and for a particular assessment year. More or less to the same effect, are two other Division Bench rulings Of that High Court in Bery Engineering Co., Delhi vs Commissioner of Income tax, Delhi (1) and Income tax Commissioner, Delhi vs Messrs. Birdhi Chand Girdhari Lal (2). In all these cases in the Punjab High Court, the deeds came into existence later than the accounting year or the assessment year, and therefore, could not have been registered. The actual decisions in these cases were correct, though there are orbiter dicta to the effect that section 26A requires that the firm should have been created or set up by an Instrument of Partnership. In the Patna High Court, the very same question was discussed at great length by a Division Bench of that Court, presided over by Ramaswami, C. J., in the case of Khimji Walji & Co. vs Commissioner of Income tax, Bihar and Orissa (3). The learned Chief Justice, after an elaborate examination of the relevant provisions of the Act, came to the conclusion in these terms " It is necessary for the purpose of registration under Section 26A that the partnership should be constituted by an instrument of partnership and that such a partnership as is constituted under an instrument of partnership should have been in existence during the accounting year ". It is on the same lines as the leading judgment of the Punjab High Court, supra. With reference to the dates given in the judgment, the decision is right, though, in this case also, the words " constituted under " have been construed as " constituted by ", without discussing the necessity for so amending the words of the statute, even as in the Punjab High Court decisions. As a result of the above discussion, the conclusion is reasonably clear that unless the partnership business was carried on in accordance with the terms of an Instrument of Partnership which was operative during (1) (2) (3) , 470. 659 the accounting year, it cannot be registered in respect of the following assessment year. As in these cases, the partnership did not admittedly function under such a deed of partnership, the Department and the High Court were right in refusing registration. We would, therefore, dismiss these appeals, but for different reasons to those given below. The respondent is entitled to his costs one set of hearing fees to be paid half and half by the appellants. HIDAYATULLAH, J. I have had the advantage of reading the judgment just delivered by my brother, Sinha, J. I agree that section 26A of the Indian Income tax Act must be read as it is. The words of the section, as they stand, are not meaningless, and in view of the decision in Commissioners for special Purpose of the Income tax vs Pemsel (1) it is not possible to read for the expression " constituted under " the words constituted by ". I entertain, however, some doubt as to whether the instrument sought to be registered, should be in existence in the accounting year, before registration can be claimed. There is nothing in the Act which says this specifically. My brother has reasoned from the contents of the Act and the Rules that such a condition is implied. While I entertain some doubts, I am not prepared to record a dissent, more so as the Board of Revenue has issued instructions that all firms should be registered, whether the documents under which they were constituted existed in the accounting year or not, provided the Income tax Officer was satisfied about the genuineness of the firms. In the result, I agree that the appeals should be dis. missed with costs. Appeals dismissed. (1) ; 542. [/INST]The question for determination in these two appeals was whether the appellant firms were entitled to registration under section 26A of the Indian Income tax Act and the common point of law involved was the interpretation of the words " constituted under an instrument of partnership " occurring in that section. In Appeal No. 85 the assessee firm was said to have been constituted by a verbal agreement in April, 1948, and the deed of partnership was drawn up in September, 1949. The application for registration under section 26A of the Act for the assessment year 1949 1950 was made thereafter to the Income tax Officer. In Appeal NO. 389 the assessee firm was verbally constituted in 81 642 June, 1944, and a memorandum of partnership was executed in June 1948. The application for registration under section 26A for the assessment years 1945 46 and 1946 47 was made on August 24, 1949. The applications were rejected by the Income tax Officer and the appeals preferred by the assessees were also dismissed by the Income tax Appellate Tribunal. The High Court took the view that section 26A of the Indian Income tax Act contemplated a firm created or brought into existence by an instrument of partnership and answered the questions against the assessees. It was contended on their behalf that solong as the assessment was not made, they were entitled to registration irrespective of the year in which the instrument of partnership came into existence. This was controverted on behalf of the Revenue and their case was that a firm seeking registration under section 26A of the Act should be created by an instrument of partnership, or at any rate, such instrument should be in existence during the relevant accounting year, i. e. the year previous to the year of assessment in respect of which the application for registration was made. Held, that the words " Constituted under an instrument of partnership occurring in section 26A of the Indian Income tax Act included not only firms that were created by instruments of partnership but also those that were subsequent to their creation, clothed in legal form by reducing the terms and conditions of the partnership in writing. Dwarkadas Khetan & Co. vs Commissioner of Income tax, Bombay City, Bombay, , approved. Kalsi Mechanical Woyks, Nandpur vs Commissioner of Income tax, Simla, , Padam Parshad Rattan Chand vs Commissioner of Income tax, Delhi, , Bery Engineering Co., Delhi vs Commissioner of Income tax, Delhi, , Income tax Commissioner, Delhi vs Messrs. Birdhi Chand Girdhari Lal, and Khimji Walji & Co. vs Commissioner of Income tax, Bihar and Orissa, , dissented from. Section 26A, read with SS. 26, 28 and Rules 2 to 6B, laid down the following essential conditions that a firm must fulfil before it could claim registration under section 26A of the Act (1) that it must be constituted under an Instrument of Partnership, specifying the individual shares of the partners; (2) that an application on behalf of and signed by, all the partners, containing all the particulars as set out in the Rules, must be made; (3) that the application must be made before the assessment of the income of the firm was made under section 23 Of the Act for that particular year; (4) that the profits (or loss, if any) of the business relating 643 to the previous year, i. e., the relevant accounting year, must be divided or credited, as the case may be, in accordance with the terms of the Instrument ; and lastly, (5) that the partnership must be genuine and in actual existence in conformity with the terms and conditions of the Instrument. Where, therefore, as in the instant cases, the partnership did not admittedly function in terms of an instrument of partnership which was operative during the accounting year, it could not be registered during the following assessment year. Commissioner of Income tax, Bombay North vs Shantilal Vrajlal & Chandulal Dayalal & CO. , dis approved. Per M. HIDAYATULLAH, J. While it was clearly not possible to read " constituted by " for the words " constituted under " occurring in section 26A of the Act, it was doubtful whether the instrument of partnership sought to be registered must be in existence in the accounting year in order to entitle it to registration. Dwarkadas Khetan & Co. vs Commissioner of Income tax, Bombay City, Bombay, , referred to. </s>

<s>[INST] Summarize the judgementCriminal Appeal No. 135 of 1968. Appeal by special leave from the judgment and order dated May 1, 1968 of the Madhya Praesh High Court, Gwalior Bench .in Criminal Appeal No. 143 of 1966. R. L. Kohli and J. C. Talwar, for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed a aginst the judgment of the High Court of Madhya Pradesh, Gwalior Bench, allowing the appeal of the State and convicting the appellant for having committed an offence punishable under section 435, Indian Penal Code, and sentencing him to undergo imprisonment for one year. The only point involved in the present appeal is whether the appellant was a person of unsound mind within section 84 of the Indian Penal Code at the time of the incident. The Magistrate held that he was not liable to punishment as he was insane at that time and did not know that he was doing anything wrong or anything contrary to law. The High Court, on the other hand, came to the conclusion that the case of the appellant did not 'fall within the exception created by section 84, I.P.C. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the .crime is actually committed and the burden of proving this lies of on the accused. (See State of Madhya Pradesh vs Ahmadullah) (1). In D. C. Thakker vs State of Gujarat(2) it was laid down that "there is a rebuttable presu mption that the accused was not insane, when he committed the crime, in the sense laid down by section 84 of the Indian Penal Code : the accused may rebut it by, placing before the court all the relevant evidence al, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil pro cedings. " It was further observed : "The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was circumstances which preceded, attended and followed the mind as to be entitled to the benefit of section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. The learned counsel contends that if regard is had to the circumstances which preceded, attended and followed the crime it would be clear that the accused is entitled to the benefit of section 84 of the Indian Penal Code. (1) [1961] 3S.C.R.583. (2) [1964] 7S.C.R.361. 253 The prosecution case is that on January 22, 1965, the appel lant set fire to the grass lying in the khalyan of Nemichand at the time of the setting of the sun. He was caught at the spot while setting fire. On being asked why he did it the accused said; "I burnt it and do whatever you want." The accused was arrested on January 23, 1965, and he remained in police, custody till February 2, 1965, when it was found that the accused needed medical examination, and accordingly the District Magistrate ordered that he be medically examined. No explanation has been given why he was kept in police custody all that time. There is no evidence either to indicate as to his condition from the time of his arrest to the time when his case was referred for medical examination. These facts were within the knowledge of the police and we should have expected that the prosecution would lead evidence regarding his condition during this time. Further, the police made it impossible for the appellant to prove his mental condition at the time of the incident by keeping him in their custody from January 23 to February 2, 1965, not having him examined and not sending him to judicial custody earlier where he would have been examined by the jail doctor. On February 20, 1965, V. section Vaidya, Assistant Surgeon,. Civil Hospital, Vidisha, reported to the Jailor, Sub Jail, Vidisha, as follows : "Subject, In Ref. to your letter No. 295 dated 8 2 1965. Sir, Ratanlal Prisoner was kept under observation as indoor patient during this time. He was keeping silent, he never used to reply any question so in my opinion he should be refd. to some specialist for further investigation and needful. " On February 22, 1965, Y. D. Kamran, Civil Surgeon, Vidisha,. reported as follows: "Shri Ratanlal, undertrial, was examined by me. He does not appear to be deaf or dumb, but is mentally retarded. He should be referred to Stiperintendent, Mental Hospital, Gwalior, for expert opinion." On March 29, 1965, Dr. B. Shah. Psychiatrist and Superintendent,Mental Hospital, Gwalior, reported as follows: "This is to certify that Shri Ratanlal s/o Kishanlal who has been kept under observation in this hospital from 18 3 1965 to 29 3 1965 is a person of unsound mind, in terms of Indian Lunancy Act; 1912. He is not dangerous, 254 and/or violents by reason of Lunancy and thus unfit to be at large. The report is based on the following facts observed here : (1) Remains depressed. (2) Does not talk. (3) He is a case of Maniac depressive. (4) Psychosis and needs treatment. " On April 28, 1965, another report was given that he was still a person of unsound mind in terms of Indian Lunancy Act, 1912, but was better though still confused, and further that treatment was being continued and it may take 4 to 6 weeks more for recovery. The defence also led evidence as to his condition before the incident in question. Shyamlal, D. W. 1, son in law of the appellant stated that "the accused was not feeling well for 2 3 years. He was in such a condition that if he is sitting will remain sitting. If he is to go then he will go and if he wishes to fall in the river then he will fall. Such was the conditions of his mind that he used to set fire in his own clothes and house. " He further stated that on the day of the incident the appellant did not allow anybody ,to enter his house and had put a lock on the house and his children took their food outside, and the accused did not talk to anybody. He further stated that "prior to this incident the accused was being taken to Bhopal after tying him for the treatment of mind. He was also taken to Bhavera but the accused did not improve. " In ,cross examination it was brought out that "prior to the setting of fire the accused was neither got admitted in the government hospital nor any, report was lodged in the police station." No cross examination was directed to ascertain the nature of his illness or to bring out that he was otherwise sane. Another witness, Than Singh, D.W. 2, (the appellant is his maternal uncle) stated that the appellant "used to do whatever he thought. He used to run away wherever he liked. He used to jump in the river also. He used to enter the house of anybody. He used to lock his house. His ' children used to lie hungry outside. He used to set fire in his clothes also. On the day of occurrence the condition of the accused was worst. He did not speak to anybody on that day. " The witness, however, admitted that the accused had not been taken to Government hospital. The Trial Court also mentioned that Moolchand, P.W. 3, Madora, P.W. 4, and Dhanna, P.W. 6. admitted that the appellant remained in the khalyan throughout the period that the grass was burning till the chowkidar took him to thana and did not utter a word and did not try to run away. 255 The Trial Court, relying on the evidence of Shyamlal, D.W. 1, Than Singh, D.W. 2, and the behaviour of the accused on that day came to the conclusion that the accused was insane. He also relied on the certificates issued by the doctors, mentioned above .He further found support in the, absence of motive for the crime. He also relied on the fact that the appellant 's khalayan adjoined the khalayan which was set on fire by him and if the appellant had been sane he would not have taken the risk of having his own khalayan burnt, which was most likely. The High Court, with respect, erred in differing from the Trial Court. The High Court observed that the appellant had not examined in defence any expert in mental diseases to substantiate his plea of legal insanity. It is expecting rather a great deal from a poor villager that he should produce experts in mental diseases, specially in view of the certificates issued by the Medical authorities after he was arrested. The High Court further erred in holding that the medical reports were of no evidential value. it is true that the reports speak of the mental state of the accused at the time when the reports were issued but the High Court failed to note that the appellant was in police custody from January 23, 1965, and the police could have produced evidence to show that he was absolutely sane till the day when they sent him for medical examination. , The High Court thought that the evidence of the two defence witnesses only suggested an irrational behaviour on the part of the accused. The High Court failed to note that, according to D.W. 2, the appellant used to set fire to his own clothes and house, and this could hardly be called irrational it is more like verging on insanity. The High Court also felt it rather unsafe to rely on the testimony of the two defence witnesses because such evidence could always be procured. It was also impressed by the fact that there was no independent witness forthcoming nor was there any evidence showing that the accused was taken to Bhopal or Gwalior for treatment. The High Court observed: "Apart from this, these witnesses merely suggest that there was irrational behaviour on the part of the accused. But it has not been proved that he entertained any homicidal tendencies. The evidence adduced is merely of conduct not confirming to the accepted pattern of human behaviour. Such evidence is inadequate to establish that there was such an impairment of cognitive faculties of the accused as to render him legally insane. " 256 With respect, it is not necessary that every insane person should have homicidal tendencies. In this case he is not charged for an offence involving homicide but arson. Although the High Court discarded the medical evidence, it took account of its own observations, when it stated "We had an opportunity to observe the accused, who was produced before us by the learned counsel, and he appeared to be a man of normal understanding. We also find that in answering questions which were put to him by the court under section 342, Cr. P.C., the accused showed intelligence and care." With great respect, these are irrelevant considerations. The appeal was heard on April 25, 1968, and the incident occurred on January 22, 1965. A person can surely improve within three years. We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has dis charged the burden. There is no reason why the evidence of Shyam Lal, D.W. 1, and Than Singh, D.W. 2, should not be believed. It is true that they are relations of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning ' of section 84, I.P.C. We accordingly allow the appeal and acquit the appellant of the offence under section 435, I.P.C., because at the time of the incident he was a person of unsound mind within the meaning of section 84 of the Indian Penal Code. His bail bond shall stand cancelled. G.C. Appeal allowed. [/INST]The Appellant was searched on alighting from a plane at the H.A.L. Aerodrome, Bangalore, on November 16, 1963 and a quantity of Gold was found on and seized from him. After obtaining sanction from the Collector under section 137(1) of the Customs Act and under Rule 126 Q of Defence of India Rules, 1962, the Superintendent of Central Excise filed a complaint against the Appellant. The Trial Court did not find any evidence establishing that the Gold had been smuggled and the Appellant was therefore acquitted of the offence under section 135 of the Customs Act. As regards the case against the Appellant under Rule 126 P(2) the Trial Court held that according to the Notification issued by the Government of India on November 5, 1963 in modification of the Notification dated January 10, 1963 issued under Rule 126 J read with Rule 126 X, either the Assistant Collector of Central Excise or the Collector of Central Excise could institute the prosecution; these officers were not authorised to delegate powers to institute prosecution. The Court, therefore, acquitted the Appellant on the view that the complaint was not filed by an Officer competently authorised. The High Court in appeal disagreed with this view holding that the Collector was lawfully empowered to authorise the Superintendent of Central Excise to prosecute the appellant. The Court convicted the appellant and sentenced him to rigorous imprisonment for six months. Dismissing an appeal to this Court, HELD : The plain reading of the relevant entries in the Notification of January 10, 1963 as amended by the Notification of November 5, 1963 clearly shows that it authorises the Collector to exercise the power and function in relation to the institution of prosecution for any offence punishable under Part XII A of the Rules referred to in r. 126Q. Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems clear that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case, further steps in the mitt& of actual prosecution including the drafting and presentation of the complaint could be lawfully carried out by others. To hold otherwise would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose. [915 C F] There was no force in the contention that the charge levelled against the appellant was vague or in any way different from the one for which 909 he was convicted. In fact the appellant had admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly brought the appellant 's case within the mischief of rule 126H(2)(d) and 126 P(2). Although under the new Gold (Control) Act 18 of 1965, which had repealed Part XII A of the Rules, there is no minimum sentence of imprisonment prescribed, the present case must be governed by the law in force at the time and therefore the minimum sentence of 6, months under rule 126 P(2) (ii) must apply. [916 D, G] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 92 of 1957. Appeal by special leave from the judgment and order dated May 11, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Misc. Case No. C 152 of 1955. B. Sen, section N. Mukherjee and B. N. Ghosh, for the appel lants. D. L. Sen Gupta (with him Dipak Dutta Choudhri), for the respondent. September 20. The following Judgment of the Court was delivered by BHAGWATI J. This appeal with special leave against the decision of the Labour Appellate Tribunal of India, Calcut ta, arises out of an application made by the appellant under section 22 of the Industrial Disputes 66 516 (Appellate Tribunal) Act, 1950, (hereinafter referred to as "the Act") for permission to discharge the respondent. The respondent had been appointed as a pay clerk in the appellant 's cash department on April 30. 1945, and had been con and had been confirmed in service with effect from August 1, 1945. Since the beginning of 1949, the respondent was found to have become negligent and careless in his work and he was also disobedient and slow in the performance of the duties that were allotted to him. Repeated verbal and written I warnings were given to him but they had no effect whatever. Consequently the Chief Cashier by his letter dated October 24, 1949, addressed to the Manager of the appellant, complained that he was very negligent and care less in his work, and habitually showed sulkiness, that he was also disobedient, and shirked the duties that were allotted to him an that recently, he was careless enough to keep the Company 's money in an open drawer of a safe, and go home, without locking the same. The Management thereupon asked for his written explanation which he submitted on October 28, 1949, stating that if there was anything wrong on his part that was due to his ill health, hard work and mental anxiety. He, therefore, asked to be excused and stated that he would take much more care in future about his work. On November 17, 1949, the Chief Cashier again com plained against the respondent stating that he had not only registered no improvement but was grossly negligent in his duties, in spite of repeated warnings, and was in the habit of absenting himself on flimsy grounds, and always tried to avoid duties that were entrusted to him and was very inso lent in his behaviour and conduct. A charge sheet was submitted to him on November 18, 1949, and he was suspended till the final disposal of the enquiry. On November 19, 1949, the respondent wrote a letter to the Managing Director of the appellant pleading not guilty to the charges framed against him and asking for an interview so that he may have a chance to represent his grievances personally. The re spondent was granted an interview with the Manager of 517 the appellant who investigated the case of the respondent and found him guilty of the charges framed against him. The respondent had admitted having been rude to his superior officer in a fit of temper but appeared to be repentant of his conduct and had tendered an apology to the Chief Cash ier. He also submitted on November 29, 1949, a letter asking to be excused. Under the circumstances, the manager of the appellant recommended in his report dated November 29, 1949, that the respondent be given one more opportunity to prove himself of good behaviour but having regard to the request made by the respondent in that behalf suggested that he be transferred to the Mechanical Engineering Department. The Manager also stated at the end of the said report that he had warned the respondent that if he got any further adverse report about his work or conduct, his services would be terminated forthwith. Following upon that report a letter was addressed by the appellant to the respondent on the same day intimating that the appellant had decided to give him one more chance of working in the organization on the distinct understanding that should there be any further adverse report about his work or conduct his services would be terminated forthwith. He was directed on that under standing to report to Mr. Hooper of the M. E. Department, where he was being transferred with effect from the next day. In spite of these chances being given to him the respondent did not improve and he was again found seriously neglecting his work. There were also complaints from the typists to the effect that the respondent 's chatter interfered with their work. Mr. Hooper after giving him verbal warnings on several occasions without any effect ultimately gave him a written warning on February 9, 1951, recording the above facts and asking that the respondent should show immediate improvement in his conduct failing which he would take the matter further. The respondent replied by his letter dated February 16, 195 1, denying the allegations contained in the said letter of Mr. Hooper: He Pleaded that he was not negli gent in his duty inasmuch 518 as he had to discharge the arrears of work which were out standing at the time when he took over the work of writing parcel challans and he was also asked to do other work of the clerks who were absent on leave. He however admitted that he had occasionally talked with his co workers though he contended that that was not in such a way as would prompt his coworkers to complain against him. He further asked to be excused for the faults, if any, and gave an assurance that he was trying and would try his level best to improve further. The respondent however did not show any improvement and again there were complaints against him that his work had not been done properly and also that he had been noisy, causing disturbance to the other clerks ' work and that he had been twice found by his superior officer Mr. Girling with his head on his arms apparently sleeping. On September 3, 1952, Mr. Girling on behalf of the appellant gave the respondent a warning to which he replied on September 8, 1952, denying all the allegations except that of his being found with his head on his arms but excused himself by stating that he was ill and it was under the advice of Mr. Girhng himself that he consulted the office doctor who had advised him rest. He however promised to endeavour his utmost to give every satisfaction in the discharge of his duties. In spite of these warnings the respondent showed no improve ment in his work and conduct and continued neglecting his duties and indulging in insubordination with the result that by its letter dated February 9, 1953, the Management of the appellant wrote to him that the only course left to it was to dispense with his services but as a measure of leniency it had decided to give him another chance to show satisfac tory improvement and in doing so it had also decided to stop his annual increment. The respondent protested against the stopping of his annual increment by his letter dated Febru ary 17, 1953, and contended that the charges levelled against him were absolutely groundless and asked the Manage ment to re consider his case. The Labour Directorate of the Government of West 519 Bengal was approached on his behalf but that body also refused to intervene. The Management asked Mr. Hooper to report upon the respondent 's work and conduct by May 31, 1953, and intimated to the respondent that unless definite improvement was reported by that date his services with the appellant would be terminated as from June 30, 1953. Mr. Hooper observed the respondent 's work and conduct and not finding them satisfactory, by his memo dated August 19, 1953, reported on the same to the Management of the appel lant. No action was however taken immediately against the respondent and on May 4, 1954, Mr. Hooper made his final report to the Management on the strength of which the appel lant wrote to the respondent its letter dated May 10, 1954, in which it stated that on receipt of the complaint from Mr. Hooper it had made a thorough enquiry into his record of service, had found that he was unsuitable to be retained in its service and had, therefore, decided to terminate his service on payment of full retrenchment compensation. It asked the respondent to choose one of the two alternatives, viz., that it may forthwith terminate his services if he was agreeable to accept payment of retrenchment compensation or in case he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service. The respondent failed and neglected to send any reply with the result that by its letter dated June 21, 1954, the appellant intimated to the respondent that it was approaching the Tribunal for permission to terminate his service as per its letter dated May 28, 1954. The appellant thereafter filed on September 21, 1954, an application before the Fifth Industrial Tribunal, West Bengal. under section 33 of the , for permission to discharge the respondent. The Fifth Industrial Tribunal however became functus officio on the expiry of thirty days from the publication of its Award in the dispute which was then pending before it with the result that the said application could not be disposed of and was accordingly struck off. 520 The appellant eventually filed an application under section 22 of the Act before the Labour Appellate Tribunal of India at Calcutta for permission to discharge the respondent from its service. This step became necessary as there was an appeal being No. Cal. 152 pending before the Labour Appellate Tribunal to which the appellant and the respondent were parties. The Labour Appellate Tribunal consisting of Shri M.N. Gan (President) and Shri P. R. Mukherji (Member) heard the appellant ex parte and by its order dated October 14, 1955, allowed the said application and granted the permis sion to discharge the respondent holding inter alia that a prima facie case had been made out for permission to dismiss the respondent. The appellant accordingly on November 11, 1955, wrote a letter to the respondent stating that the necessary permission had been granted by the Labour Appel late Tribunal to discharge him from the appellant 's service and that the decision of the Management of the appellant dated May 28, 1954, to terminate his services was therefore given effect to on the terms communicated to him in that letter. On December 6, 1955, the respondent filed an affidavit before the Labour Appellate Tribunal, Calcutta, praying for a review of the order dated October 14, 1955, for setting it aside and for restoration of the application under section 22 of the Act. The Labour Appellate Tribunal presided over by Mr. M. N. Gan and Mr. V. N. Dikshitulu heard the parties concerned and by its order dated March 6, 1956, allowed the respondent 's application and restored the appellant 's case to its file. On a further hearing of that application the parties adduced evidence and after hearing both the parties the Labour Appellate Tribunal presided over this time by Mr. V. N. Dikshitulu rejected the application under section 22 of the Act by its order dated May 11, 1956, and refused to the appel lant permission to discharge the respondent from its serv ice. The appellant being aggrieved by the said decision of the Labour Appellate Tribunal of India, Calcutta ' 521 applied for and obtained special leave to appeal to this Court. Mr. Sen on behalf of the appellant raised two contentions: (i) that the Labour Appellate Tribunal had no jurisdiction to review its own order which it had passed on October 14, 1955, and (ii) that the Labour Appellate Tribunal had ex ceeded its jurisdiction under section 22 of the Act in coming to the conclusion that the appellant had failed to make out a prima facie case to discharge the respondent from its serv ice. Re:(i) It was contended that once the Labour Appellate Tribunal pronounced its order on October 14, 1955, it had become functus officio and thereafter it had no jurisdiction to review its own order. The circumstances, moreover, did not bring the application which was made by the respondent on December 6, 1955, strictly within the provisions of 0. 47, r. I of the Code of Civil Procedure and no application for review could therefore be maintained. It is significant, however, to remember that the application made by the respondent on December 6, 1955, was an omnibus one and was intituled as one under 0. 47, r. I of the Code of Civil Procedure for review under 0. 41, r. 21 of the Civil Procedure Code for restoration and under 0. 9, r. 13 of the Code of Civil Procedure for setting aside the permis sion granted ex parte and to restore the respondent in his original position. The respondent evidently sought to rely upon one or the other of the provisions above set out in order to obtain the relief which he sought in that. applica tion. Whether one or more of these provisions of the Code of Civil Procedure could be availed of by the respondent depends upon what are the powers which are vested in the Labour Appellate Tribunal when hearing the matters which come before it. The Labour Appellate Tribunal is the creature of the statute and all its powers must be found within the four corners of the statute. The constitution and functions of the Labour Appellate Tribunal are to be found in Chapter 11 of the Act. Sections 4 to 6 of the Act lay down the 522 constitution and functions of the Labour Appellate Tribunal and section 7 prescribes its jurisdiction in appeal from awards or decisions of the Industrial Tribunals. Section 9 lays down the powers and procedure of the Labour Appellate Tribu nal. The provisions of section 9 so far as they are relevant for the purpose of this appeal may be set out here : Section 9. Powers and procedure of the Appellate Tribunal. (1)The Appellate Tribunal shall have the same powers as are vested in a civil court, when hearing an appeal, under the Code of Civil Procedure, 1908 (Act V of 1908). (10)The Appellate Tribunal shall follow such procedure as may be prescribed, and subject thereto, it may, by order, regulate its practice and procedure and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), shall, so far as they are not inconsistent with this Act, or the rules or orders made thereunder, apply to all proceedings before the Appellate Tribunal. It may be noted that the Labour Appellate Tribunal not only exercises appellate jurisdiction by way of hearing appeals from the awards or decisions of the Industrial Tribunals but also exercises original jurisdiction when applications are made to it under section 22 of the Act to obtain its permission in writing to alter the conditions of service applicable to the workman or to discharge or punish whether by dismissal or otherwise any workman concerned in appeals pending before it. If an employer contravenes the provisions of section 22 during the pendency of the proceedings, before the Labour Appellate Tribunal, it also entertains complaints in writing at the instance of the employees aggrieved by such contra vention and the Labour Appellate Tribunal decides these complaints as if they are appeals pending before it in accordance with the provisions of the Act. This is also an exercise of original jurisdiction though under the express terms of the section the exercise of that jurisdiction is assimilated to the 523 exercise of appellate jurisdiction by the Labour Appellate Tribunal. Whatever be the nature of the jurisdiction thus exercised by the Labour Appellate Tribunal whether original or appellate that jurisdiction is exercised by it by virtue of the provisions of the Act: And section 9 of the Act has refer ence to the exercise of the whole of that jurisdiction when it talks of the powers and procedure of the Labour Appellate Tribunal. In regard to such powers and procedure no dis tinction is made between the exercise of original jurisdic tion and the exercise of appellate jurisdiction by the Labour Appellate Tribunal and these provisions apply equally to the jurisdiction exercised by it whether under sections 7, 22, or section 23 of the Act. Section 9(1) of the Act invests the Labour Appellate Tribu nal with the same powers as are vested in a civil court, when hearing an appeal, under the Code of Civil Procedure, 1908 (Act V of 1908). A question was mooted before us whether the words " when hearing an appeal" were to be read with the words "Appellate Tribunal" or with the words "a civil court". It was argued that these words went with the words "Appellate Tribunal" and, therefore, the powers of a civil court under the Code of Civil Procedure were to be exercised by the Labour Appellate Tribunal only when it was exercising its appellate jurisdiction and hearing matters which fall within the purview of section 7 or section 23 of the Act and not when it was exercising original jurisdiction and hearing applications under section 22 of the Act. This construc tion of the provisions of section 9(1) of the Act however suf fers from this disability that it takes no count of the fact that the Labour Appellate Tribunal under the provisions of the Act itself exercises both original as well as appellate jurisdiction and if such a construction was put on these provisions the result would be that there would be no provi sion as regards the powers of the Labour Appellate Tribunal when it is exercising original jurisdiction. The powers of the Labour Appellate Tribunal which are sought to be provid ed in section 9(1) of the Act are not limited only to the exer cise 67 524 of appellate jurisdiction by it but have reference to the whole of the jurisdiction which is vested in the Labour Appellate Tribunal under the provisions of the Act. The words " when hearing an appeal" have, moreover, been used between the words "a civil court" and "under the Code of Civil Procedure, 1908" which in the context in which they have been used could only have been meant to refer to a civil court. Whatever the jurisdiction the Labour Appellate Tribunal is exercising whether original or appellate it is vested with the powers as are vested in a civil court under the Code of Civil Procedure, 1908, when it is hearing an appeal. The very juxtaposition of the words " when hearing an appeal " with the words " a civil court ", is sufficient, in our opinion, to invest the Labour Appellate Tribunal while exercising its jurisdiction whether original or appel late with the same powers as are vested in a civil court Under the Code of Civil Procedure when it is exercising its appellate jurisdiction, and hearing appeals. (See Burmah Shell Oil Storage Case(,) and the New Union Mills Ltd. Case (2). If this is the true construction to be put on the provisions of section 9(1) of the Act, the provisions of 0. 41 r. 21 of the Code of Civil Procedure are attracted forthwith. Order 41 r. 21 provides: Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate court to rehear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. When the Labour Appellate Tribunal heard the application under section 22 of the Act ex parte on October 14, 1955, the summons had not been served on the respondent owing to its being addressed to hi in at a wrong place. There was suffi cient cause therefore for the respondent not appearing when the application was called on for hearing and on this (1) (2) 525 circumstance being established he was entitled to a re hearing of the application and setting aside of the ex parte order made against him. The Labour Appellate Tribunal was, therefore, right in making the order which it did on March 6, 1956. There is also another aspect of the question which may be dealt with at this stage and it is that under the provisions of section 9, sub section (10) of the Act the Labour Appellate Tribu nal is enjoined to follow such procedure as may be pre scribed, and subject thereto it may, by order, regulate its practice and procedure and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), shall, so far as they are not inconsistent with the Act or the rules or orders made thereunder, apply to all proceedings before it. Pursu ant to the powers conferred upon it by this sub section the Labour Appellate Tribunal has made orders to regulate its practice and procedure and 0. 3 r. 4 provides : " Nothing in these rules shall be deemed to limit or other wise affect the inherent power of the Tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. " This provision is analogous to that which is contained in section 151 of the Code of Civil Procedure which relates to the inherent powers of the Court and even apart from the ap plicability of 0. 41 r. 21 of the Code of Civil Procedure as hereinbefore set out it was open to the Labour Appellate Tribunal to pass the order which it did on March 6, 1956, as it was evidently necessary for the ends of justice or to prevent the abuse of the process of the Court. We are, therefore, of opinion that the Labour Appellate Tribunal had jurisdiction to set aside the ex parte order dated October 14, 1955, and restore the appellant 's applica tion under section 22 of the Act to its file. This contention of the appellant therefore is without any substance and must be negatived. Re:(ii) It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under section 22 of the Act it misconceived 526 its jurisdiction and in the exercise of it, launched into an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant had failed to make out a prima facie case for terminating the service of the respondent. The nature and scope of the enquiry before the Labour Appel late Tribunal under section 22 of the Act has been the subject matter of decisions of this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and others (1), The Automo bile Products of India Ltd. vs Rukmaji Bala & others(2) and Lakshmi Devi Sugar Mills Limited vs Pt. Ram Sarup(3). In the last mentioned case this Court succinctly laid down the principles governing such enquiry and observed at p. 935: " The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the condition of employ ment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the em ployer for the lifting of such ban and the only jurisdiction which the Tribunl has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization. " We have, therefore, got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 1 1, 1955, terminating the respondent 's service the appellant was motivated by any unfair labour practice or victimisation. The facts as they appear from the narration of events in the earlier part of this judgment go to establish that the respondent was grossly negligent in (1) ; (3) ; (2) [1955] i S.C.R. 1241. 527 the performance of his duties, was in the habit of absenting himself on flimsy grounds, was also insolent in his beha viour and conduct and in spite of repeated warnings, oral as well as written, addressed to him by the Management of the appellant did not show any signs of improvement. The inci dents of 1949, 195 1, and 1952 culminating in the stoppage of his annual increment in February, 1953, were sufficient to demonstrate that the Management of the appellant dealt with the respondent very leniently in spite of his work and conduct not being at all satisfactory. The appellant would have been well within its rights if it had taken action against the respondent on each of the several occasions above referred to, but out of sheer compassion went on giving him one opportunity after the other so that he would register an improvement in his work and conduct. The re spondent however, presisted in his behaviour and the two reports made by Mr. Hooper One on August 19, 1953, and the other on May 4, 1954, were considered by the Management and it came to the conclusion that the respondent was unsuitable to be retained in the appellant 's service and even then instead of deciding to dismiss him without anything more, it offered him the choice of one of the two alternatives, viz., that it may forthwith terminate his service if he was agree able to accept the term of full retrenchment compensation or if he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service. The whole of the correspondence ending with the respondent 's letter dated February 17, 1953, was sufficient to prove with. out anything more the unsatis factory nature of his work and conduct and the, appellant was evidently of the opinion that the records of the re spondent taken along with the reports made by Mr. Hooper afforded sufficient material to justify it in taking the step which it ultimately decided to do. It was under these circumstances that the appellant did not consider it neces sary to furnish to the respondent a chargesheet and to hold a formal enquiry into the work and conduct of the respond ent. 528 This circumstance was considered by the Labour Appellate Tribunal as sufficient to entitle it to determine for itself whether a prima facie case for the termination of the respondent 's service was made out by the appellant. It was open to the appellant to submit a charge sheet to the re spondent and institute a formal inquiry into his work and conduct. If that had been done and the appellant had, after holding such formal enquiry, come to the conclusion that the respondent was guilty of the charges which were levelled against him and had then decided to terminate his service, the Tribunal could not have intervened and on its coming to the conclusion that a prima facie case for the termination of the service of the respondent was thus made out, it would. have granted the appellant the permission asked for. Unfortunately for the appellant, in spite of the work and conduct of the respondent being demonstrably unsatisfactory and, therefore, justifying the conclusion that he was un suitable to be retained in its service, the appellant did not hold any formal enquiry of the nature indicated above and did not afford to the respondent an opportunity to have his say in the matter of the charges levelled against him. The Labour Appellate Tribunal therefore rightly took upon itself the burden of determining whether on the material submitted before it by the appellant a prima facie case for the termination of the respondent 's service was made out by the appellant. The evidence led by the parties before the Labour Appellate Tribunal consisting as it did of the affidavit and oral evidence was not such as would enable it to come to the conclusion that a prima facie case for the termination of the respondent 's service was made out by the appellant. In paragraphs 8 and 9 of the application the appellant had pointed out that after receipt of Mr. Hooper 's report dated May 4, 1954, to the effect that there will be no improvement of work in the department unless the respondent was removed from the same, the matter was further investigated and the old records of the respondent were carefully considered and the appellant found that enough consideration 529 had been shown to the respondent but without any effect and in the interest of discipline and good work it was necessary that he should be discharged from service. These allega tions were denied by the respondent in his affidavit in reply and he contended that on no occasion whatever the warnings, letters, suspension or stoppage of increment resorted to by the appellant were done after establishing his guilt or by following the usual methods, viz., by issu ing a charge sheet with specific allegations and on enquiry based on such a charge sheet and explanations rendered by him. He contended that the whole thing was arbitrary, without any basis and in violation of the principles of natural justice and was by way of unfair labour practice or victimization. An affidavit in rejoinder was filed on behalf of the appellant by Shri Ramani Ranjan Dhar, a Senior Assistant of the appellant. He denied these allegations of the respondent and affirmed that the application of the appellant sufficiently disclosed the offences for which it sought the permission of the Labour Appellate Tribunal to dismiss the respondent. He stated that the appellant was thoroughly satisfied, after full enquiry and investigation and after the respondent was given more than ample opportu nity to explain the charges levelled against him, and after he was given more than one chance at his own prayer to improve his conduct on various occasions that the respondent was guilty of the charges brought against him. This affida vit evidence was followed by the oral evidence of Mr. Hooper led on behalf of the appellant. Mr. Hooper, however, did not carry the case of the appellant any further. Even though the appellant had an opportunity when Mr. Hooper was in the witness box to produce his reports dated August 19, 1953, and May 4, 1954, and have them proved through him, or, in any event, if the absence or loss of those reports was satisfactorily accounted for to lead oral evidence as to their contents the appellant did not do so and beyond a bare reference to his report of May 4, 1954, without disclosing. the contents thereof there was nothing in the deposition of Mr. Hooper which would 530 even go to show that the contents of that report were preju dicial to the respondent. In cross examination also he admitted that before reporting on May 4, 1954, against the respondent he did not draw up a chargesheet as it was for the appellant to do so. The Labour Appellate Tribunal bad to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent 's serv ice. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. Case (1). The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respond ent. It applied a standard of proof which having regard to the observations made above was not strictly justifiable. If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal. But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evi dence was taken at its face value a prima, ' facie case was made out by the appellant. Mr. Hooper 's evidence did not go to show what were the contents of his report dated May 4, 1954, and it contained only a bare reference to that report (1) 531 without anything more. This was not enough to prove the contents of that report, much less to give the respondent an opportunity of controverting the ' allegations made against him. If, therefore, these essential ingredients were want ing, it cannot be said that the evidence led by the appel lant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondent 's service. This contention also does not there fore avail the appellant. Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or other wise on the other, in clause (b) of section 22 of the Act. He contended that no prima facie case need be made out when an employee was sought to be discharged simpliciter by the employer. A charge sheet was required to be submitted to the workman and an enquiry thereon required to be made in conformity with the principles of natural justice only in those cases where the workman was sought to be punished by dismissal or otherwise. That was not the case when the workman was sought to be discharged without assigning any reason whatever and such a case did not fall within the category of punishment at all. For the purpose of the present case we need not dilate upon this; it is sufficient to point out that Shri Raniani Ranjan Dhar in his affidavit in rejoinder filed on behalf of the appellant categorically stated that the respondent was sought to be " dismissed " by reason of his having been found guilty of the various charges which had been levelled against him. Even at the exparte hearing of the application under section 22 of the Act before the Labour Appellate Tribunal the case of the appel lant was that it had made out a prima facie case for permis sion to " dismiss " the respondent. This distinction sought to be drawn by Mr. Sen is therefore of no consequence what ever and need not detain us any further. Mr. Sen also relied upon the circumstance that after the Labour Appellate Tribunal had on the exparte hearing of the application under section 22 of the Act granted to the appellant permission to terminate the 68 532 service of the respondent on October 14, 1955, the appellant had implemented the same and by its notice 'dated November, 11, 1955, actually terminated the service of the respondent offering him full retrenchment compensation. In so far as the appellant had acted upon such permission and implemented the same, it was contended, that the respondent 's service was irrevocably terminated and nothing more was to be done thereafter, except the possible raising of an industrial dispute by the respondent on the score of his service having been wrongfully terminated. It was submitted that after such an irrevocable step had been taken by the appellant terminating the respondent 's service, the Labour Appellate Tribunal ought not to have reconsidered its decision and restored the application under section 22 of the Act to its file and that the further decision of the Labour Appellate Tribu nal had no effect so far as the actual termination of the service of the respondent was concerned. We do not propose to go into these interesting questions for the simple reason that the only question which arises for our consideration in this appeal is whether on the evidence led before it the decision of the Labour Appellate Tribunal dated May 11, 1956, dismissing the appellant 's application under section 22 of the Act was correct. As a matter of fact no such contention had been urged by the appellant before the Labour Appellate Tribunal when it finally heard the application under section 22 of the Act and the only point to which the attention of the Labour Appellate Tribunal was invited was whether the appel lant had made out a prima facie case for the termination of the respondent 's service. Whatever rights and remedies are available to the appellant by reason of these circumstances may just as well be asserted by the appellant in appropriate proceedings which may be taken hereafter either at the instance of the appellant or the respondent. We are not at present concerned with the same. Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal 533 which is the subject matter of appeal before us was correct. It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in termi nating the service of the respondent as it did, the appel lant was not, guilty of any unfair labour practice nor was it actuated by any motive of victimisation against the respondent. That finding, however, cannot help the appel lant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent. We, therefore, hold that the decision of the Labour Appel late Tribunal refusing permission to the appellant under section 22 of the Act was correct and this appeal is liable to be dismissed. It will accordingly be dismissed with costs. Appeal dismissed. [/INST]Section 17 of the Andhra Pradesh Excise Act 1968, as it stood at the relevant time, provided for the grant of lease for the manufacture or sale of an intoxicant. It also pro vided that a lease shall not take effect until a licence under the Act was also issued. Section 23 provided that the sum accepted in consideration for the grant of any lease under s.17 was to be the excise duty payable in respect of that excisable article. Rule 3 of the Andhra Pradesh (Lease of Right to Sell Liquor in Retail) Rules, 1969 prescribes that every lease of right to sell liquor in retail shall be granted by auction. Rule 7 of the Andhra Pradesh (Arrack Retail Vend Special Conditions of Licences) Rules, 1969 requires the licences to purchase arrack from the distillery, warehouse or depot allotted by the Government and to pay 'issue price ' as notified. Rule 15 provides for the purchase of a specified minimum guaranteed quantity of arrack every month and for the adjustment of the issue price in case of any short fail in the purchase of the minimum guaranteed quantity of liq uor. A question arose as to whether under the Excise Law prevailing in the State, the Government was entitled to claim from the excise contractors, who failed to lift the minimum guaranteed quantity of liquor, the amount said to represent the excise duty component in the issue price of liquor relating to such unlifted quantity of liquor. A Full Bench of three Judges of the High Court in V. Narasimha Rao vs Superintendent of Excise, (AIR held in favour of the Government. It took the view that three items, namely, duty, cost 514 and sales tax constituted the issue price. This view, howev er, was overruled by the Full Bench of Five Judges of the same High Court in Atluri Brahmanandam vs Tahsildar of Gannavaram, (AIR wherein it was held that the Government could not do so. It treated the excise duty as a severable element of issue price. That judgment was assailed in the appeals and petitions filed by the Government. To nullify the effect of that judgment and to validate the demands raised by the Government the State Legislature enacted the Andhra Pradesh Excise (Amendment) Act X of 1984. The amended s.17 provides for grant of lease or licence for exclusive privilege of manufacture, supply by wholesale or sale of any liquor or other intoxicants. The new s.23 empow ers the competent officer to accept payment of a sum in consideration of the grant of lease or licence or both for the exclusive privilege in respect of the liquor or any other intoxicant under s.17. Section 4 of the Amending Act, provides for the validation of earlier demands made in respect of issue price of short drawn minimum guaranteed quantity of liquor. Demands raised pursuant to the Amending Act were upheld by the High Court by a later judgment. The aggrieved excise contractors filed appeals to this court. Some of the contractors who had originally succeeded because of the decision of Five Judges Bench and were again called upon to make good the deficit after the Amending Act was passed, having failed in the High Court filed special leave petitions to this Court. It was contended for the aggrieved contractors that what was sought to be recovered from them was excise duty on unlifted quantity of liquor which was not authorised by the provisions of the Act, as the excise duty being a part of the issue price it could only ;elate to liquor drawn by them and not pertain to undrawn liquor, that without amending ss.21 and 22 of the Excise Act the amendment of s.23 affect ed by the Legislature led nowhere towards achieving the result aimed at by the Legislature and that the Legislature could not validate the demands earlier made and struck down by the Courts, merely by enacting that the demands were to be deemed to be valid without removing the vices and the defects. Disposing of the appeals and the special leave petitions, the Court, HELD: 1.1 Once 'issue price ' is determined its compo nents, such as excise duty, cost price, transport charges etc. cease to retain their individual character. They cannot then be severed from the issue 515 price and dealt with separately. The Five Judges Bench of the High Court was, therefore, wrong in holding that excise duty was a severable element of issue price. [526H; 527A B] 1.2 Issue price is the sum total of whatever has gone into the price of liquor at the time it is issued and it is a single pre determined definite sum per bulk litre and not the total of separate sums representing to many specified components. The 'issue price ' is that which is notified as issued price and not its components, if any. These compo nents which have come together to become 'issue price ' are rendered incapable of being separated again. Excise duty loses its identity, as it were, and becomes an inseparable part of 'issue price '. [525H; 526A] A lessee licensee, therefore, was not entitled to claim deduction from the issue price payable by him in respect of short drawn quantity of arrack the amount attributable to the excise duty. [528F] V. Narasimha Rao vs Superintendent of Excise, AIR 1974 AP 157, distinguished. Atluri Brahamanandam vs Tahsildar of Gannavaram, AIR 1977 AP 196, overruled. 2.1 The issue price is no more and no less than the price which the contractor agrees to pay for the grant of the privilege to sell liquor, drawn or undrawn. The minimum guaranteed quantity of liquor as well as the issue price are both fixed well in advance of the auction in regard to each shop and it is with full knowledge of the issue price and the minimum guaranteed quantity that every bidder partici pates in the auction. 1527D; 526C D] 2.2 There can be no question that issue price must generally relate to liquor which is drawn by the contractor but it does not follow therefrom that issue price cannot be adopted by agreement between the parties as a measure of compensation to be paid in the case of undrawn liquor. [527C D] Panna Lal vs State of Rajasthan, , referred to. 3.1 Even prior to the 1984 amendment, the amount which each of the contractors was required to pay or to have adjusted was not excise duty on undrawn liquor, but was part of the price which he had agreed to pay for the grant of the privilege to sell liquor. [527D] 516 3.2 All rights in regard to manufacture and sale of intoxicants vest in the State. It is open to the State to part with those rights for a consideration. The considera tion for parting with the privilege of the State is neither excise duty nor licence fee but it is the price of the privilege. [S27E F] 3.3 Reading sections 17 and 23 of the Andhra Pradesh Excise Act 1968 together with the Andhra Pradesh Excise (Lease of Right to Sell Liquor in Retail) Rules 1969 and Andhra Pradesh (Arrack Retail Vend Special Conditions of Licences) Rules 1969, makes it evident that the privilege of selling liquor, which includes the lease of the shop for an area and the licence to sell liquor therein may be granted by the State by public auction subject to: (1) payment of rental being the highest bid at the auction, (2) the re quirement that the licensee shall purchase arrack at the issue price, and (3) the further requirement that the licen see shah purchase a minimum guaranteed quantity of arrack, which he has to make good in case of short fail. The consid eration for the grant of the privilege to sell liquor is not merely the rental to be paid by the lessee but also the issue price of the arrack supplied or treated as supplied in case of short fail, which is also to be paid by the lessee licensee. There is no question of the lessee licensee having to pay the excise duty though it may be that the issue price is arrived at after taking into account the excise duty payable. [S28B E] Panna Lal vs State of Rajasthan, ; ; State of Haryana vs Jage Ram, ; and Har Shankar & Ors. vs The Dy. Excise & Taxation Commr. & Ors. , ; , referred to. Bimal Chandra Banerjee vs State of Madhya Pradesh, ; ; Madhya Pradesh vs Firm Cappulal etc. ; , and Excise Commissioner, Uttar Pradesh vs Ram Kumar, 1976 (Suppl) SCR 532, distinguished. The new s.17 of the Excise Act makes it clear that what is proposed to be granted is the exclusive previlege to manufacture or sell liquor in the shape of a lease or li cence or both. The explanation makes it clear that the lease shall not take effect unless a licence is issued. Having regard to the vital amendment of section 17, no further amendment of s.21 and 22 was necessary. In the new s.23 it is now specified that the payment in consideration of the grant of lease or licence or both for the exclusive privilege is to be instead of or in addition to any excise duty or fees leviable in ss.21 and 22. The amendments effected to ss.17 and 23, 517 therefore, have fulfilled the object of removing the vices or defects in the Act if indeed there were any. [533C F] </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 42 and 43 of 1961. Appeals by special leave from the judgments and orders dated September 7, 1960 of the Chief Commissioner, Pondicherry in Appeals Nos. 56 and 57 of 1960. WITH Petitions Nos. 297 and 298 of 1960. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. A. V. Viswanatha Sastri R. K. Garg, M.K. Ramamurthy, S.C. Agrawal and D. P. Singh, for the appellants/petitioners (In both the appeals and the petitions.) C. K. Daphtary, Solicitor General of India, B. Sen, B. R. L. Iyengar and T. M. Sen, for the 983 respondent No. 1 (in both the appeals) and respondents Nos. 1 and 2 (in both the petitions). A. section R. Chari, K. R. Choudhri and R. Mahalingier, for respondent No. 2 (in both the appeals). R. Gopalakrishnan, for respondent No. 3 (in both the petitions). December, 8. The Judgment of Gajendragadkar, Wanchoo and Ayyangar, JJ., was delivered by Ayyangar, J. The judgment of Sarkar and Das Gupta, JJ., was delivered by Sarkar, J. AYYANGAR, J. The two Civil Appeals are by special leave of this Court and the two Writ Petitions have been filed by the respective appellants seeking the same relief as in the appeals, the relief sought being the setting aside of orders passed by the Chief Commissioner of Pondicherry as the State Transport appellate authority (under the Motor Vehicles Act). All these four have been heard together because of a common point raised regarding the jurisdiction of this Court to entertain the appeals and the petitions. It is manifest that the preliminary point about the jurisdiction of this Court should have first to be considered before dealing with the merits of the contentions raised in the appeals and petitions. It might be convenient to state a few facts to appreciate the context in which the questions debated before us arise and the point concerned in the order now passed. Sivarama Reddiar the appellant in Civil Appeal 43 of 1961 and the petitioner in Writ Petition 298 of 1960, is a citizen of India and is engaged in the business of motor transport. By a notification dated December 27, 1958 in the Official Gazette of Pondicherry the State Transport Commission of Pondicherry invited applications for the grant of stage carriage permits to be submitted before February 27, 1959, including the route from Pondicherry to Karaikal, the latter being another 984 former French possession. In response to this notification, Sivarama Reddiar as well as one Gopal Pillai who is the second respondent to the appeal and the second respondent in the Writ Petition were two of the 19 persons who made applications for the grant of this permit to them. Before the State Transport Commission dealt with these applications, the Government of India in the exercise of its powers under section 4 of the published a notification in the Official Gazette of Pondicherry extending the provisions of the Indian as in force in Delhi to Pondicherry with effect from June 19, 1959. Rules 3(4) and 4 of this order promulgated under the provided: "3(4). Any Court, tribunal or authority required or empowered to enforce the said Act in Pondicherry may for the purpose of facilitating its application in relation to Pondicherry construe the said Act with such alteration not affecting the substance as may be necessary or proper with respect to the matter before the Court, tribunal or authority as the case may be. " Rule 4 effected a repeal of existing laws in these terms: "Repeal of existing laws: All laws in force in Pondicherry immediately before the commencement of the Order which correspond to the Act and the rules, notifications and 'Orders applied to Pondicherry by this order shall, except in so far as such laws relate to the levy of any fee, cease to have effect save as respects things done or omitted to be done before such commencement. " On July 21, 1959, the Chief Commissioner of Pondicherry, in exercise of the powers conferred on him by section 44 of the constituted a State Transport Authority for Pondicherry The 985 State Transport Authority, Pondicherry thus created, issued a notification on August 1, 1959 by which it required persons who had applied for Stage Carriage permits in response to the notification dated December 27, 1958 to furnish particulars with regard to a number of matters which were relevant for being considered for the grant of a Stage Carriage permit under the . Both the appellant petitioner Sivarama Reddiar as well as inter alia the respondent Gopal Pillai furnished the required particulars. The Particulars supplied by the parties were checked and verified by designated authorities and thereafter the State Transport Authority by an order on April 30, 1960 directed the grant of the permit to the appellant petitioner Sivarama Reddiar rejecting the claims of all others including the respondent Gopala Pillai. Though the which had been extended to Pondicherry included section 64, whereby persons aggrieved by an order of a State Transport Authority could file appeals against such order, no appellate authority had been constituted by the Chief Commissioner. This situation was remedied by a notification by the Chief Commissioner dated May 4, 1960 whereby he constituted himself under section 68 of the Act as the appellate authority for the purpose of exercising jurisdiction under section 64 thereof. Several of the aggrieved operators including Gopala Pillai preferred appeals to the Chief Commissioner. By an order dated September 5, 1960 the Chief Commissioner, Pondicherry allowed the appeal of the respondent Gopala Pillai, set aside the order of the State Transport Authority granting the permit to the appellant Sivarama Reddiar and directed that the permit for the route Pondicherry to Karaikal be issued in favour of the respondent Gopala Pillai. Writ Petition 293 of 1960 has been filed to secure the setting aside of this order of the Chief Commissioner on the ground that the order violates the fundamental rights guaranteed to the petitioner by 986 of the Constitution and Civil Appeal No. 43 of 1961 is directed to obtain the same relief. It is not necessary at this stage to set out the facts of the other appeal and petition by Masthan Sahib, because except that the route is different and so, are the grounds on which the order of the Chief Commissioner is sought to be impugned, the other material facts relevant for the consideration of the preliminary point to which we adverted are exactly the same. The preliminary objection that is raised to the entertainment of the appeal is shortly as follows: article 136 (1) of the Constitution under which the appellant has obtained special leave reads: "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. " In order, therefore, that this Court might have jurisdiction to entertain the appeal it is a prerequisite that the Court or tribunal from whose judgment or order the appeal is preferred should be one in the territory of India. It is urged on behalf of the respondent that Pondicherry is not part of the territory of India, with the consequence that the Chief Commissioner whose order is impugned in the appeal is not "a Court or tribunal in the territory of India. " The question thus raised is of great political and constitutional significance and it is not disputed that if this area were not part of the territory of India, this Court would have no jurisdiction in the absence of any legislation by Parliament under article 138 (1), and the Civil Appeal would have to be dismissed as incompetent. It was common ground that this was the position in regard to the maintainability of the appeal 987 but in regard to the Writ Petition Mr. Vishwanatha Shastri learned Counsel for the petitioner sought to sustain its maintainability on slightly different grounds. He invited our attention to the terms of article 12 of the Constitution which reads: "In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." Learned Counsel pointed out that for the purpose of the exercise of this Court 's powers under article 32 of the Constitution for the enforcement of the fundamental rights its jurisdiction was not limited to the authorities functioning within the territory of India but that it extended also to the giving of directions and the issuing of orders to authorities functioning even outside the territory of India, provided that such authorities were subject to the control of the Government of India. This submission appears to us well founded and that the powers of this Court under article 32 of the Constitution are not circumscribed by any territorial limitation. It extends not merely over every authority within the territory of India but also those functioning outside provided that such authorities are under the control of the Government of India. The power conferred on this Court by Part III of the Constitution has, however, to be read in conjunction with article 142 of the Constitution which reads: "142 (1) The Supreme Court in the exercise of the jurisdiction may pass such decree or makes such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory 988 of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. " It would be seen that article 142 brings in a limitation as regards the territory which the orders or directions of this Court could be enforced. It is manifest that there is an anomaly or a discordance between the powers of this Court under article 32 read with article 12 and the executability or enforceability of the orders under article 142. It is possible that this has apparently arisen because the last words of article 12 extending the jurisdiction of this Court to authorities "under the control of the Government of India" were added at a late stage of the constitution making while articles 142 and 144, the latter reading: "All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court". were taken, in whole or in part, from section 210 of the Government of India Act, 1935 and that no necessary changes were made in article 142 to bring it into line with article 12 as it finally emerged and the powers of this Court under article 32. But this however offers us no solution to the question which is whether, in view of the limitation imposed by article 142 on the area within which alone the directions or orders of this Court could be directly 989 enforced, the Court could issue a writ in the nature of certiorari or other appropriate writ or direction to quash a quasi judicial order passed by an authority outside the territory of India, though such authority is under the control of the Government of India. If the order of the authority under the control of the Government of India but functioning outside the territory of India was of an executive or administrative nature, relief could be afforded to a petitioner under article 32 by passing suitable orders against the Government of India directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India. Such an order could be enforceable by virtue of article 144, as also article 142. But in a case where the order of the outside authority is of a quasi judicial nature, as in the case before us, we consider that resort to such a procedure is not possible and that if the orders or directions of this Court could not be directly enforced against the authority in Pondicherry, the order would be ineffective and the Court will not stultify itself by passing such an order. In these circumstances it becomes imperative that we should ascertain the constitutional and political status of Pondicherry in relation to the Union of India. Certain documents have been placed before us and in particular an agreement dated October 21, 1954 entered into between the Government of India and of France by which the administration of Pondicherry was ceded to the Government of India. Mr. Viswanatha Sastri learned Counsel for the appellant petitioner contended that on the terms and conditions contained in this agreement, Pondicherry was a part of the territory of India. On the other hand, Mr. Chari learned Counsel for the respondents urged that the reservations contained in the agreement were such as to preclude the Court from reaching the conclusion 990 that there had been a transfer of complete sovereignty, which according to him was necessary in order to constitute the area as part of the territory of India. The learned Solicitor General who appeared in response to the notice to the Union of India, submitted that the Union Government was agreeable to the respective contentions urged by the parties being decided by the Court. We have considered the matter urged before us with great care and desire to make the following observations: So far as the Constitution of Indian is concerned, we have an express definition of what the phrase "territory of India" means. article 1 (3) enacts: "1. (3) The territory of India shall compromise (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. " There might be little difficulty about locating the territories which are set out in cls. (a) & (b) but when one comes to (c) the question arises as to when a territory is "acquired" and what constitutes "acquisition". Having regard to the subject dealt with, the expression "acquired" should be taken to be a reference to "acquisition" as understood in Public International Law. If there were any public notification assertion or declaration by which the Government of this country had declared or treated a territory as part and parcel of the territory of India, the Courts would be bound to recognise an "acquisition" as having taken place, with the consequence that that territory would be part of the territory of the Union within Art.1(3)(c). In the present case, we have this feature that the administration of the territory is being conducted under the powers vested in the Government under the . The preamble to that Act recites that it was: 991 "An Act to provide for the exercise of certain foreign jurisdiction of the Central Government". and accordingly the expression "foreign jurisdiction" is defined in its section 2(a) to mean "the jurisdiction which the Central Government has for the time being in or in relation to any territory outside India. " Thus this would prima facie show that Pondicherry has not been "acquired" but still continues to be outside the territory of India. In our opinion, however, though this might be very strong evidence that the territory has not been "acquired" and so not part of the "territory of India", it is still not conclusive. In this state of circumstances two courses would be open to us: (1) to decide for ourselves on the material that has been placed before us in the shape of the agreement between the two Governments etc. Whether Pondicherry has been "acquired" so as to become part of the territory of India, or (2) to invoke the assistance of the Government of India by inviting them to state whether the territory has been acquired within article 1(3) of the Constitution and whether Pondicherry is thus now part of the "territory of India". We originally proposed to avail ourselves only of the procedure indicated in s.6 of the which enacts: "6. (1) If in any proceeding, civil or criminal, in a Court established in India or by the authority of the Central Government outside India, any question arises as to the existence or extent of any foreign jurisdiction of the Central Government, the Secretary to the Government of India in the appropriate department shall, on the application of the Court, ' send to the Court the decision of the Central Government on the question, and that decision shall for the purposes of the proceeding be final. 992 (2) The Court shall send to the said Secretary in a document under the seal of the Court or signed by a Judge of the Court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be returned to the Court by the Secretary and those answers shall on production thereof be conclusive evidence of the matters therein contained." But the learned Solicitor General very properly pointed out that an answer to the question which could be referred under this provision would relate merely to "the existence or extent of jurisdiction" and that information on these points might not be sufficient to solve the problem posed by the preliminary question raised in the appeals and petitions as to whether Pondicherry is a part of the "territory of India" or not. We agree with the learned Solicitor General that information relating to the "existence or extent" of the jurisdiction exercisable by the Union Government in the territory might not completely solve the question for our decision as to whether Pondicherry is part of the territory of India or not, but still if the extent of the jurisdiction vested in the Union Government by the arrangements entered into between the two Governments virtually amounts to a transfer of sovereignty for every practical purpose, it would be possible to contend that such a transfer or cession was so incompatible with the existence of any practical sovereignty in the French Government as to detract from the surrender or transfer being other than complete. It is for this reason that we consider it proper to exercise the powers vested in the Court under section 6 of the . It would be observed from what has been stated above that it would be more satisfactory and more useful for the disposal of the proceedings 993 before us if we ascertain from the Union Government an answer to the question whether they do or do not consider that Pondicherry is part of the territory of India. We have only to add that on the decisions in England, the Court has jurisdiction to invite the Government to assist it by information as to whether according to Government any territory was part of Her Majesty 's Dominion or not (vide The Fagernes L. R. 1927 Probate 311). Besides, the learned Solicitor General agreed that the Government would assist us by answering our reference. In view of the matters set out above we direct that the following questions shall be forwarded to the Union of India under the seal of this Court for the submission of their answers: (1) Whether Pondicherry which was a former French Settlement is or is not at present comprised within the territory of India as specified in article 1(3) of the Constitution by virtue of the Articles of the Merger Agreement dated October 21, 1954 between the Governments of India and France and other relevant agreements, arrangements, acts and conduct of the two Governments. (2) If the answer to Question 1 is that Pondicherry is not within the territory of India, what is the extent of the jurisdiction exercised by the Union Government over the said territory and whether it extends to making all and every arrangement for its civil administration, its defence and in regard to its foreign affairs. The Government of India might also state the extent of jurisdiction which France possesses over the area and which operates as a diminution of the jurisdiction ceded to or enjoyed by the Government of India. On the receipt of the answers to these questions the appeals will be posted for further hearing. SARKAR J. Four matters came up for hearing together. Two of these are appeals brought with leave 994 granted by this Court and two are petitions under article 32 of the Constitution. One appeal and one petition are by one party and the other appeal and petition are by another. The appeal and the petition by each party challenge an order made by the Chief Commissioner of Pondicherry under the . Each of the two orders challenged was made on applications for the grant of bus permits. By one of the orders a permit for a certain route had been given to a person other than one of the parties who has moved us, in preference to him. By the other order, similarly, the claim of the other party moving us to a permit for a different route was rejected. All the matters raise substantially the same question concerning the validity of the Chief Commissioner 's orders. Now, Pondicherry was earlier a French possession administered by the Government of France. By an agreement between the Governments of India and France, the administration of Pondicherry was transferred to the Government of India as from November 1, 1954. The Government of India had been exercising power in Pondicherry since, under the . The Chief Commissioner of Pondicherry is an officer of the Government of India appointed under the powers derived as a result of the agreement. With regard to the appeals, question arose at the hearing before us as to whether they were competent. The appeals had been filed with leave granted under article 136 of the Constitution. It was said that the appeals were incompetent because Pondicherry was outside the Indian territories and under article 136 no appeal from any court outside such territories lay to this Court. It was, however, contended on behalf of the appellants that since the Indo French agreement or very soon thereafter, Pondicherry became part of the Indian territories as a territory acquired by India and, therefore the appeals who 995 competent. As the most satisfactory way of deciding the question whether Pondicherry is within India or not is to seek information from the Government on the point, the majority of the members of the bench are of opinion that the Government of India should be approached to enlighten us about it. The learned Solicitor General, appearing for the Government, has not objected to this procedure being adopted. With regard to the Petitions under article 32, it was contended that the Chief Commissioner of Pondicherry was a State within the meaning of article 12 of the Constitution as under that article any authority under the control of the Government of India outside the territory of India was a State for the purpose of Part III of the Constitution. On this basis it was contended on behalf of the petitioners that the petitions under article 32 asking for certain writs to quash the orders of the Chief Commissioner of Pondicherry were also competent. A further question then arises as to whether in view of article 142 of the Constitution the writs, if issued, could be enforced against an authority under the control of Government of India at Pondicherry, if Pondicherry was outside India and if they could not, whether the Court should issue the writs as it would only be stultifying itself by doing so. It seems to us that it is unnecessary to decide these questions at this stage, for we are going to ask the Government to inform us whether Pondicherry was at the relevant time part of Indian territories. If the Government inform us that Pondicherry was part of India, then no question would arise concerning the powers or jurisdiction of this court in any of the matters now before us. If the information from the Government is that Pondicherry is not within the territories of India, that will, in our opinion, be the 996 proper time to consider whether the Court can still give the petitioners the relief which they ask. These cases involve other questions of difficulty and importance on which it would be proper, in our view, to make a pronouncement after the Government of India 's answer to our request is received. As to none of these are indeed any question arising in these cases we express any opinion at this stage. We wish, however, to observe now that it seems to us exceedingly strange that if this Court finds that a party 's fundamental right has been violated, from which it would follow that that party has a right to move this Court under article 32 and to obtain the necessary writ, this Court could refuse to issue it for the reason that it would thereby be stultifying itself. If a party is entitled to a writ under article 32, then we are not aware that there is any discretion in the Court to refuse the writ on the ground that the writ cannot be enforced. Even assuming that in view of article 142 of the Constitution, a writ cannot be enforced outside India as to which we pronounce no opinion now might is not be said with justification that it is not necessary for us to be unduly pressed by considerations of the difficulties of the enforcement of the writ and that if would be reasonable for us to think that the Government of India has sufficient respect for this Court to do all that is in its power to give effect to this Court 's order, whether or not there might be technical difficulties in the way of its enforcement by this Court. In view of these doubts, we are unable, as at present advised, to concur in the opinion expressed in the Judgment of the majority of the learned Judges constituting the Bench that article 142 stands in the way of this Court issuing a writ under article 32 in this case. We would reserve our opinion till a later stage and till it becomes necessary to express any opinion at all. 997 BY COURT : We direct that the two questions set out in the majority judgment be forwarded to the Union of India under the seal of this Court for submission of their answers. On receipt of the answers to the questions the appeals will be posted for further hearing. The Judgment of Gajendragadkar, Wanchoo and Ayyangar, JJ., was delivered by Ayyangar J. The Judgment of Sarkar and Das Gupta, JJ., was delivered by Sarkar J. AYYANGAR, J. In compliance with our directions the two questions were forwarded to the Union Government and they submitted their answers to them in the following terms: "Question No. (1) Whether Pondicherry which was a former French Settlement is or is not at present comprised within the territory India as specified in Article 1(3) of the Constitution by virtue of the Articles of the Merger Agreement dated October 21, 1954 between the Governments of India and France and other relevant agreements arrangements, acts and conduct of the two Governments. Answer The French Settlement (Establishment) of Pondicherry is at present not comprised within the territory of India as specified in clause (3) of Article 1 of the Constitution by virtue of the Agreement dated the 21st October, 1954, made between the Government of France and the Government of India or by any other agreement or arrangement. By the aforesaid Agreement, dated the 21st October, 1954, the Government of France transferred, and the Government of India took over, administration of the territory of all the French Establishments in India, including Pondicherry, with effect from the 1st November, 1954. A copy of the Agreement is enclosed. This is expressed to be a de facto transfer and was intended to be 998 followed up by a de jure transfer. A treaty of Cession providing for de jure transfer has been signed by the Government of France and the Government of India on the 28th May, 1956, but has not been so far ratified in accordance with the French Law as well as in accordance with the article 31 of the Treaty. A copy of the Treaty is also enclosed. The Government of India has been administering Pondicherry under the , on the basis that it is outside India and does not form part of the territory of India. Question No.(2) If the answer to question 1 is that Pondicherry is not within the territory of India, what is the extent of the jurisdiction exercised by the Union Government over the said territory and whether it extends to making all and every arrangement for its civil administration, its defence and in regard to its foreign affairs. The Government of India might also state the extent of jurisdiction which France possesses over the area and which operates as a diminution of the jurisdiction ceded to or enjoyed by the Government of India. Answer The Government of India has been exercising full jurisdiction over Pondicherry in executive, legislative and judicial matters in accordance with . In doing so it has followed the aforesaid Agreement. The Government of France has not also exercised any executive, legislative or judicial authority since the said Agreement. The jurisdiction of the Government of India over Pondicherry extends to making all arrangements for its civil administration. The administration of the territory is being carried on under the , and in accordance with the French Establishments (Administration) Order, 1954, 999 and other Orders made under sections 3 and 4 of that Act. The Government of India have been aiming at conducting the administration of Pondicherry so as to conform to the pattern of administration obtaining to in India consistent with the said Agreement. Accordingly a large number of Acts in force in India have already been extended to Pondicherry. The Government of India hold the view that the sole responsibility in regard to arrangements for the defence of Pondicherry devolves on themselves. Pondicherry has no foreign relations of its own. No claims have been made by the Government of France in this matter nor have the Government of India recognized the existence of any such claim. The Government of France do not possess any de facto jurisdiction over Pondicherry which would imply any diminution of the jurisdiction exercised by the Government of India. " The appeals and the writ petitions were thereafter posted for further hearing before us on October 9, 1961. Mr. N. C. Chatterji learned Counsel for Shri Masthan Sahib, appellant in Civil Appeal No. 42 of 1961 and petitioner in writ petition No. 297 of 1960, urged before us two contentions. The first was that the answer to the second question clearly established that the French establishments including Pondicherry were part of the territory of India, having been acquired by the Union Government within the meaning of article 1(3)(c) and that in view of this position it was not necessary to consider nor proper for us to accept the views expressed by the Union Government in their answer to the first question wherein they had expressly stated that they did not consider the French "establishments" covered by the agreement between the Union Government and the Government of France dated October 21, 1954 as being within the territory of India within 1000 Art.1(3) of the Constitution of India. Secondly, a point which was necessarily involved in the first one just set out that this Court was not bound by the statement of the Government of India in its answer to Question No. 1 and that it should disregard such an answer and investigate for itself on the materials placed before it as to whether Pondicherry was part of the territory of India or not. In support of the first submission Mr. Chatterji placed considerable reliance on the passage in our judgment rendered on April 28, 1961 reading: "Still if the extent of the jurisdiction vested in the Union Government by the arrangements entered into between the two Governments virtually amounts to a transfer of sovereignty for every practical purpose, it would be possible to contend that such a transfer or cession was so incompatible with the existence of any practical sovereignty in the French Government as to detract from the surrender or transfer being other than complete. " The argument was that the answer to the second question showed (1) positively that the Government of India exercised complete jurisdiction over the territory executive, legislative and judicial, its authority being plenary and extending to the making of laws. Their execution and the administration of justice with complete power over its defence and foreign affairs and (2) negatively that the Government of France possessed no authority in the territory, so much so that it could not be predicated that there had been any retention of even a vestigial sovereignty to detract from the completeness of the transfer. In the circumstances, learned Counsel urged that he was justified in inviting us to ignore or disregard the answer to the first question and instead answer the question as to whether these French establishments were within the territory of India or not on the basis of the second question. 1001 Having regard to the nature of this argument it is necessary to state briefly the circumstances in which we felt it necessary to frame the two questions that we did. At the stage of the hearing of the petitions on the first occasion, notice was issued to the Union Government and the learned Solicitor General appearing in response to the notice did not convey to us any definite views on the part of the Government as to whether Pondicherry was or was not considered by them to be part of the territory of India but invited the Court to decide the question on the materials that might be placed the parties before us. At that stage therefore we were not quite certain whether Government would be prepared to make a formal statement about their views on this question. If therefore the Government were inclined still to leave the matter to the Court, we desired to have complete information as to the factual position regarding the government of the territory. It was in view of that possibility that Question No. 2 was framed. It was, of course, possible that Government might communicate their views to the Court and with a view to enable this to be done we framed Question No. 1. In these circumstances nothing is gained by reference to the passage in our judgment dated April 28, 1961. The passage extracted is certainly not an authority for the position as to whether if Question No. 1 was answered, the Court could properly consider any implications or inferences arising on the answer to Question No. 2. We shall therefore proceed to consider the principal question that arises at this stage, viz., whether the answer of the Government is reply to a specific and formal enquiry by the Court that it did not consider a particular area to have been "acquired" by the Indian Government and therefore not a part of the territory of India was binding on the Court or not. A number of decisions of the English and Australian Courts in which the point 1002 has been considered were placed before us and we shall proceed to refer to the more important of them. In Duff Development Company vs Government of Kelantan(1) the question related as to whether the Sultan of Kelantan was the ruler of an independent sovereign State, such that the Courts in England had no jurisdiction over the Sultan or the Government of that State. The Secretary of State for the Colonies who was requested by the Court to furnish information as regards the status of the ruler and of the Government stated that the Sultan was the head of an independent sovereign state. The binding character of this statement was however questioned and it was argued before the House of Lords on foot of certain public documents that Kelantan was merely a dependency of the British Government and not a sovereign State. On the other side; it was pressed upon the House, that the statement of the Secretary of State was binding and this latter submission was unanimously accepted by the House. In doing so Viscount Cave observed: "If after this definite statement a different view were taken by a British Court, an undesirable conflict might arise; and in my opinion it is the duty of the Court to accept the statement of the Secretary of State thus clearly and positively made as conclusive upon the point." Viscount Finlay expressed himself thus: "It has long been settled that on any question of the status of any foreign power course is that the Court should apply to His Majesty 's Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of 1003 evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance." Lord Sumner said: "Where such a statement is forthcoming no other evidence is admissible or needed. " There is one other decision of the House of Lord to which reference may usefully be made Government of the Republic of Spain vs Arantzazu, Mendi.(1) The question for decision was whether it was General Franco 's Government that was the Government in Spain or the Republican Government. The Secretary of State for Foreign Affairs had, in a formal communication to the Court in reply to a letter forwarded under the direction of Bucknill J., stated that His Majesty 's Government had recognised the Nationalist Government as the Government which had administrative control over a large portion of Spain and particularly over the Basque Provinces wherein the ship, title to which was in question, had been registered. Lord Wright in his speech said: "The Court is, in my opinion, bound without any qualification by the statement of the Foreign office, which is the organ of His Majesty 's Government for this purpose in a matter of this nature. Such a statement is a statement of fact, the contents of which are not open to be discussed by the Court on grounds of law. " No doubt, these decisions were in relation to the status of or recognition by the Government of foreign sovereign and are therefore not ad idem with the point which now arises for consideration viz., whether a particular piece of territory is or is not part of the territory of India. A statement by Government in relation to a similar question 1004 came up before the Court of Appeal in Fagernes (1) The question for the Court 's consideration was whether the Bristol Channel, particularly at the point where a collision was stated to have taken place, was or was not part of British territory. Hill J. before whom an action for damage caused by the alleged collision came up held that the waters of the Bristol Channel were part of British territory and therefore within the jurisdiction of the High Court. The defendants appealed to the Court of Appeal and at that stage the Attorney General appeared and in response to a formal enquiry by the Court as to whether the place where the collision was stated to have occurred was within the realm of England, replied that "the spot where the collision is alleged to have occurred is not within the limits to which the territorial sovereignty of His Majesty extends." On the basis of this statement the Court of Appeal unanimously reversed the judgment of Hill J. An argument was raised before the Court as regards the binding character of the statement by the Attorney General and in regard to this Akin L.J. said: "I consider that statement binds the Court, and constrains it to decide that this portion of the Bristol Channel is not within British jurisdiction, and that the appeal must be allowed. I think that it is desirable to make it clear that this is not a decision on a point of law, and that no responsibility rests upon this Court save that of treating the statement of the Crown by its proper officer as conclusive." Lawrence L.J. observed: "It is the duty of the Court to take judicial cognizance of the extent of the King 's territory and, if the Court itself is unacquainted with the fact whether a particular place is or is not within the King 's territory, the Court is entitled to inform itself of that fact by making 1005 such inquiry as, it considers proper. As it is highly expedient, if not essential, that in a matter of this kind the Courts, of the King should act in unison with the Government of the King, this Court invited the Attorney General to attend at the hearing of the appeal and at the conclusion of the arguments asked him whether the Crown claimed that the spot where the collision occurred was within the territory of the King. The Attorney General in answer to this inquiry, stated that he had communicated with the Secretary of State for Home Affairs, who had instructed him to inform the Court that "the spot where this collision is alleged to have occurred is not within the limits to which the territorial sovereignty of His Majesty extends. " In view of this answer, given with the authority of the Home Secretary upon a matter which is peculiarly within the cognizance of the Home office, this Court could not, in my opinion, properly do otherwise than hold that the alleged tort was not committed within the jurisdiction of the High Court". Bankes L.J., though he agreed with his colleagues in allowing the appeal, however struck a slightly different note saying: "This information was given at the instance of the Court, and for the information of the Court. Given under such circumstances, and on such a subject, it does not in my opinion necessarily bind the Court in the sense that it is under an obligation to accept it" The entire matter is thus summarised in Halsbury 's Laws of England, Third Edition, Volume 7: "There is a class of facts which are conveniently termed 'facts of state '. It consists of matters and questions the determination of which is solely in the hands of the Crown or 1006 the government, of which the following are examples: (1) . . . . . . . . . (2) Whether a particular territory is hostile or foreign, or within the boundaries of a particular state." Mr. Chatterji, however, invited our attention to certain observations contained in two decisions of the High Court of Australia Jolley vs Mainka and Frost vs Stevenson (2).In both these cases the point involved was as to the status of the territory of New Guinea which Australia was administering as mandatory territory under a mandate from the League of Nations. There are, no doubt, observations in these cases dealing with the meaning of the word 'acquired ' in section 122 of the Commonwealth of Australia Act, but the point to be noticed however is that there was no statement by the Government of the Commonwealth of Australia as to whether this area was or was not part of the territory of Australia, such as we have in the present case. We do not, therefore, consider that these observations afford us any assistance for the solution of the question before us. Both Mr. Chatterji and Mr. Viswanatha Sastri learned Counsel who appeared for Sivarama Reddiar, the appellant and petitioner in the other cases, stressed the fact that what we were called upon to decide was the meaning of the expression 'acquired ' in article 1 (3) (c) of the Constitution and that in the case of a written constitution such as we had to construe, jurisdiction of this Court was not to be cut down and the enquiry by it limited by reasons of principles accepted in other jurisdictions. In particular, learned Counsel stressed the fact that it would not be 1007 proper for the Court to ignore patent facts and hold itself bound by the statement of Government in cases where, for instance, the Government of the day for reasons of its own desiring to exclude the jurisdiction of this Court denied that a part of territory which patently was within article 1(3) was within it. It is not necessary for us to examine what the position would be in the contingency visualized, but assuredly it is not suggested that the case before us falls within that category. The proposition laid down in the English decisions that a conflict is not to be envisaged between the Executive Government and the judiciary appears to us to rest on sound reasoning and except possibly in the extreme cases referred to by the learned Counsel, the statement of the Government must be held binding on the Court and to be given effect to by it. There is one other matter which was specially pressed upon us during the course of argument to which is necessary to refer. The submission was that the answer by the Union Government to the two questions were really contradictory and that whereas the answer to the second question made it out that the French establishments had been acquired and were part of the territory of India, the Government had in relation to the first question made a contradictory answer. We do not consider this argument well founded. In cases where the only fact available is the de facto exercise of complete sovereignty by one State in a particular area, the sovereignty of that State over that area and the area being regarded as part of the territory of that State would prima facie follow. But this would apply normally only to cases where sovereignty and control was exercised by unilateral action. Where however the exercise of power and authority and the right to administer is referable to an agreement between two States, the question whether the territory has become integrated with and become part 1008 of the territory of the State exercising de facts control depends wholly on the terms upon which the new Government was invited or permitted to exercise such control and authority. If the instruments evidencing such agreements negatived the implication arising from the factual exercise of Governmental authority then it would not follow that there is an integration of the territory with that of the administering power and that is precisely what has happened in the present case. As annexures to their reply the Union Government have included The Treaty of Cession dated May 28, 1956, which is a sequel to the agreement dated October 21, 1954, transferring the powers of the Government of the French Republic to the Government of the Indian Union. Under the terms, this Treaty would become operative and full sovereignty as regards the territory of the establishments of Pondicherry, Karikal, Maha and Yanam would be ceded to the Indian Government only when the treaty comes into force. It is not necessary to refer to all the clauses of this Treaty except the one which stipulates that it would come into force on the day of ratification by the two Governments concerned. According to the Constitution of France an Act of the France Assembly is required for the validity of a Treaty relating to or involving the cession of French territory. It is common ground that the Treaty has not been ratified yet. The resulting position therefore is that by the agreement dated October 21,1954, though complete administrative control has been transferred to the Government of India, this transfer of control cannot be equated to a transfer of territory, that being the common intention of the parties to that agreement. Unless a ratification takes place there would legally be no transfer of territory and without a transfer of territory there would not be in the circumstances an "acquisition of territory", with the consequence that at present Pondicherry has to be treated as not part 1009 of the territory of India. It is unnecessary to consider what the position would have been if the Union Government had, notwithstanding the terms of the Treaty, treated the former French establishments as having become part of the territory of India. There was one minor submission made by Mr. Viswanatha Sastri to which a passing reference may be made. He suggested that the term "territory of India" in article 142 might not represent the same concept as 'the territory of India ' within article 1(3) and that in the context of article 142 the term 'territory of India might include every territory over which the Government of the Union exercised de facto control. We are not impressed by this argument. The term 'territory of India ' has been used in several Articles of the Constitution and we are clearly of the opinion that in every Article where this phraseology is employed it means the territory of India for the time being as falls within article 1(3) and that the phrase cannot mean different territories in different Articles. We have already dealt with the question as to what the effect on the maintainability of the appeals and the petitions would be if Pondicherry were not part of the territory of India. In view of Pondicherry not being within the territory of India we hold that this Court has no jurisdiction to entertain the appeals. The appeals therefore fail and are dismissed. The writ Petitions must also fail and be dismissed for the reason that having regard to the nature of the relief sought and the authority against whose orders relief is claimed they too must fail. They are also dismissed. We would add that these dismissals would not include the petitioners from approaching this Court if so desired, in the event of Pondicherry becoming part of the territory of India. In the peculiar circumstances of this case we direct that that the parties bear their respective costs. 1010 Before leaving this case, we desire to point out that the situation created by the French establishments not being part of the territory of India is somewhat anomalous. Thier administration is being conducted by the extension of enactments in India by virtue of the power conferred by the . We have had occasion to point out that though technically the areas are not part of Indian territory, they are governed practically as part of India. But so far as the orders of the courts and other authorities judicial and quasi judicial within that area are concerned, the Superior Courts in India have not, subject to what we have stated as regards the limited jurisdiction of the court, any appellate or revisional jurisdiction over them and this might in a large number of cases lead to injustice and a sense of grievance. There is enough power in Government even at the stage of the de facto transfer to remedy the situation. By appropriate action under the , or by Parliamentary Legislation under the entry 'Foreign Jurisdiction ' the appellate Jurisdiction of the High Court or of this Court could be enlarged under articles 225 and 138 [1] respectively so as to afford an adequate remedy for the inhabitants of these areas. To this aspect of the matter we consider that the attention of Government should be drawn. SARKAR, J. On the earlier occasion when these cases came up before this Court, we postponed further hearing of them till we received the answers of the Government of India to two questions which we then referred to it. These questions substantially were, (a) whether Pondicherry is or is not within the territories of India and (b) if it is not, the extent of the jurisdiction exercised by the Union Government over it and the jurisdiction which France still possesses in regard to it. These questions were put because considerable doubt was felt as to the real status of Pondicherry. If it 1011 was a foreign territory, no appeal could lie to this Court under article 136 of the Constitution from any tribunal in Pondicherry and two of these matters were such appeals. The other two matters were petitions asking for writs against certain authorities in Pondicherry and the majority held that no writ could issue to a foreign territory in view of article 142 of the Constitution and therefore for the purposes of these petitions also it was necessary to ascertain the status of pondicherry. We however then felt some difficulty about the question whether we could refuse to issue writs to an officer of the Government of India outside the territory of India and expressed our inability to concur in the opinion of the majority. We said that the proper time to discuss that question would be when on receipt of the Government 's answers to our questions, it had to be held that Pondicherry was a foreign territory and reserved our final decision on the question till then. The Government 's answers to our questions have now been received. On the basis of these answers, for the reasons hereafter mentioned, it has to be held that Pondicherry is a foreign territory. We, therefore, now wish to say a few words on the question on which we reserved our opinion on the former occasion. The opinion of the majority no doubt prevails in spite of what we shall say. Before we discuss the question which we reserved we desire to observe in regard to the appeals that it must be held that they are not maintainable as Pondicherry is a foreign territory. Now, the writs are sought to quash the orders of a quasi judicial authority functioning in Pondicherry on the ground that they violate certain fundamental rights of the petitioners This authority however is an officer of the Government of India. How far writs can be issued under article 32 of the Constitution of India to quash a quasi judicial order even if made in India, itself a 1012 question of considerable difficulty on which there has been a difference of opinion in this Court. That question was recently discussed before another Bench but the judgment in that case has not yet been delivered. For the present purpose however we will assume that writs can be issued under article 32 to quash a quasi judicial order. The First observation that we wish to make is that it has now been finally held by this Court, dealing with an application under article 32 that "the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right": Kavalannara Kottarthill Kochunni vs The State of Madras. (1) A right to move this Court by a petition under article 32 is, therefore, a fundamental right. That being so, a right to obtain a writ when the petition establishes a case for it, must equally be a fundamental right. For, it would be idle to give a fundamental right to move this Court and not a similar right to the writ the issue of which the petition might clearly justify. If then a fundamental right to a writ is established, and that is the assumption on which we are examining the present question the party who establishes such right must be entitled ex debito justitiae to the issue of the necessary writ. There would then be no power in the Court to refuse in its discretion to issue it. But it is said that if a writ was issued in the present case, it could not in view of article 142 which says that an order of this Court shall be enforced throughout the territory of India, be enforced Pondicherry. Let us assume that is so. Then it is said that if the Court were to issue the writ it would only be stultifying itself and should not therefore issue it. We are unable to accede to this contention. If a party has been given by the 1013 Constitution a fundamental right to a writ, there is no power in the Court to refuse that right. Supposed practical considerations of incapacity to in force the writ issued cannot be allowed to defeat the provisions of the Constitution. No authority has been cited to us in support of the proposition that when a party in entitled as of right to an order, a court can refuse to make that order on the ground that it would thereby be stultifying itself. So far as we have been able to ascertain orders are refused on this ground when the matter is one for the discretion of the Court. Such cases have, for instance, frequently occurred in proceedings relating to the issue of injunctions, to grant or not to grant which is well known, in the discretion of the Court. The discretion has no doubt to be judicially exercised as indeed all discretions have, but none the less the right to the relief is in the discretion of the Court as opposed to a relief to which a party is entitled ex debito justitiae, a distinction which is well understood. Thus, dealing with a case of the issue of an injunction restraining a person from. proceeding with an action in a foreign court, Jessel M.R. Observed, in In re International Pulp and Paper Co. Ltd.(1), "Therefore, as to a purely foreign country, it is of no use asking for an order, because the order cannot be enforced". Take another case. In England an information in the nature of quo warranto is not issued as a matter of course as a matter of course [R.V. Stacey and therefore the courts there refused to issue it when in information would be futile in its results. Halsbary Laws of England (3rd ed.) Vol. 11 p. 148. So in Reg. v Fox(2) the Court refused to issue the information for the reason that the person sought to be removed by it could be reappointed at once. These however are cases in which a Court would be inclined not to make 1014 a discretionary order on the ground that the Court would thereby be stultifying itself. Instances might be multiplied but it is unnecessary to do so. We do not think that the principle of these cases can be applied where a court has no option but to make the order which we think is the present case. It would clearly be less applicable to a case like the present where, as we shall immediately show, it would be wrong to think that the order would not be carried out. Lastly, can we be certain that the Court would be stultifying itself by issuing the writ in this case ? That would be only if our order is sure to be ignored. We think that this Court would be fully justified in proceeding on the basis that any order made by it would be carried out by any officer of the Government of India to whom it is directed wherever he may be, out of respect for the Constitution and this Court and this without requiring to be forced to do so. In this connection the case of R.v. Speyer, R. vs Cassel(1) is of interest. There Speyer and Cassel had been called upon by the court by rules nisi to show cause why an information in the nature of quo warranto should not be exhibited against them to show by what authority they respectively claimed to be members of His Majesty 's Privy Council for Great Britain. Speyer and Cassel were naturalised British subjects and the question was whether under certain statutes they were not disqualified from being appointed to the Privy Council. One of the arguments on behalf of the respondents was that the court would be powerless to enforce a judgment of ouster for it could not prevent the immediate reinstatement of the names of these persons in the roll of Privy Councillors if the King though fit to alter it. The answer that Reading C.J. gave to this argument was 1015 "Although it may be interesting and useful for the purpose of testing the propositions now under consideration to assume the difficulties suggested by the Attorney General, none of them would in truth occur. This is the King 's Court; we sit here to administer justice and to interpret the laws of the realm in the King 's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown. " The other members of the Bench also took the same view, Lush J. observing, "The consequences he suggests are argumentative and not real, and we cannot regard them as fettering the exercise of our jurisdiction". Now this was a case of a discretionary order. Even so, the Court felt that it would be wrong to stay its hand only on the ground that it could not directly enforce its order. This salutary principle has been acted upon in our country by Das J. who later became the Chief Justice of this Court, in In re Banwarilal Roy(1) There Das J. issued an information in the nature of quo warranto in spite of the fact that he could not command the Governor of Bengal to comply with his order which might therefore have become futile. We think it is a very healthy principle and should be followed. We do not think that we can allow our powers for the protection of fundamental rights to be fettered by considerations of the enforcement of orders made by us; we must assume that the authorities in Pondicherry will willingly carry out our order. We turn now to the other questions arising on the Government 's answers. Pondicherry was admittedly a French possession but under an agreement with France, the Government of India is now administering it. The Government has definitely stated that Pondicherry is not comprised 1016 within the territory of India. It has also said that it has full jurisdiction over Pondicherry under that agreement, that the liability for defence of Pondicherry is on it and that Pondicherry has no foreign relations. It has further said that France does not possess any de facto jurisdiction over Pondicherry which would imply a diminution of the jurisdiction exercised by it. It was contended that we are not bound by the Government 's answer to the first question, namely, that Pondicherry is outside India and that on the basis of the answer to the second question we should hold, in spite of the Government 's view, that Pondicherry is a part of Indian territory. It was said that since India had admittedly full jurisdiction over Pondicherry and France exercised none, it must be held the India has acquired sovereignty over it and that it had, therefore, become Indian territory by acquisition. We are entirely unable to accept this contention. We think that we are bound by the Government 's decision at least in a case where we have referred to it for our guidance. That is the view taken in England and it is a view which is based on sound principle: see Duff Development Co. vs The Govt. of Kelantan.(1) Any other view would create a chaos and we cannot be a party to it. We may say that by a treaty. as in the present case, India may acquire full jurisdiction over a foreign territory which under the same treaty may nonetheless remain a foreign territory. It was contended that this would be absolute surrender to the executive Government; that such a view would enable the Government when it so liked, to disown a territory which was patently a part of India so that it might act therein as it liked in complete disregard of the laws and without any check from any court including this Court. This contention, to use the words of Luch J. in Speyer 's case(2)is "argumentative and not real". 1017 We cannot imagine that in a democracy any Government would ever act in the way suggested and we are sure no Government of this country will ever do so. Furthermore, the contention has no foundation whatever and is wholly imaginary. It is the duty of a court to take judicial notice of the extent of the territory of its own State. Section 57 of the Evidence Act requires that. Therefore, if the fact is patent that a certain territory is within India, the courts will take judicial notice of it and there will be no occasion to refer to the Government for any information regarding it. It may however be that in certain circumstances the fact is not patent but even then it appears that it will be the duty of a court to take judicial notice and it does so by requesting the Government to enlighten it on the point. So Lawrence L. J. said in Fagernes (1), "It is the duty of the Court to take judicial cognisance of the extent of the King 's territory and, if the Court itself is unacquainted with the fact whether a particular place is or is not within the King 's territory, the Court is entitled to inform itself of that fact by making such enquiry as it considers necessary. " It is only in cases where the Court is not aware of the facts that the question of referring to the Government will arise and therefore no occasion can possible arise where the Government might have the chance of distorting a patent fact. This is all that we desire to say. As the majority of the learned Judges of the Bench have taken a different view, the order to be made will follow their decision. [/INST]The Supreme Court referred two questions to the Union Government viz (i) whether. Pondicherry was comprised within the territory of India, and (ii) if not, what was the extent of the jurisdiction exercised by the Union Government and the French Government over the territory. The answers given were that (i) Pondicherry was not comprised within the territory of India and (ii) the Union Government exercised full jurisdiction over Pondicherry and the French Government did not exercise any de facto jurisdiction over it. There was a treaty of cession between France and India in respect of Pondicherry but it had not been ratified as required by the French and Indian laws. The appellant contended that the answer of the Union Government to the second question established that Pondicherry was part of the territory of India and that the Court was not bound by the answer to the first question. ^ Held, that Pondicherry was not comprised within the territory of India as specified in article 1(3) of the Constitution. The answer of the Union Government on this question was binding on the Court. There was no conflict between the answers to the two questions. Though complete administrative control over Pondicherry had been transferred to the Government of India it could not be equated to a transfer of territory. Unless there was ratification of the Treaty there could legally be no transfer of territory. Accordingly, no appeal could be entertained by the Court under article 136 of the Constitution against the decisions of the authorities in Pondicherry. 982 Duff Development Company vs Government of Kelantan , Government of the Republic of Spain vs Arantzazu Mendi. (1939) A. C. 256 and Fagernes 1927 Probate 311, applied. Jolley vs Mainka ; and Efrost vs Slevenson; , , distinguished. Per Gajendragadkar, Wanchoo and Ayyangar, JJ. Having regard to the nature of the relief sought no writ under article 32 of the Constitution could be issued to the authorities in Pondicherry. Per Sarkar and Das Gupta, JJ The Supreme Court could issue a writ under article 32 to the quasi Judicial authorities in Pondicherry. Article 32 was a fundamental right and the right to obtain a writ was equally a fundamental right. If the Constitution gave to a party a fundamental right to a writ the Court could not refuse that right. The consideration that the writ issued may not be enforced in Pondicherry could not be allowed to defeat the provisions of the Constitution. Such a consideration is relevant only in the case of discretionary orders. K. K. Kochunni vs The State of Madras, [1959] Supp. 2 S.C.R. 316, In re International Pulp and Paper Co. Ltd., , Reg vs Fox, ; , R. vs Cassel, (1916) I K B. 595 and In re Banwarilal Roy, , referred to. </s>

<s>[INST] Summarize the judgementAppeals Nos. 98 and 99 of 1957. Appeals from the judgment and order dated August 31, 1954, of the Madhya Pradesh High Court in Civil Misc. Case No. 9 of 1953. R. Ganapathi Iyer and D. Gupta, for the appellant in C. A. No. 98 of 1957 and respondents in C. A. No. 99 of 1957. section K. Kapur and Naunit Lal, for the respondents in C. A. No. 98 of 1957 and appellant in C. k. No. 99 of 1957. November 30. MUDHOLKAR, J. These are cross appeals from two judgments of the erstwhile High Court of Madhya Bharat. Both of them arise out of a writ petition presented by the Gwalior Sugar Company Ltd., who are respondents in C. A. 98 of 1957, in which they challenged the validity of the levy of a cess on sugarcane purchased by the respondents. The grounds on which the validity of the cess is challenged are two. The first ground is that it was not levied under any law and the second ground is that it is discriminatory against the respondents. In order to appreciate these contentions it is necessary to set out certain facts. In the year 1940 in pursuance of an agreement entered into between the Government of Gwalior State and Sir Homi Mehta and others a sugar factory was established at Dabra. The name of that factory is The Gwalior Sugar Co., Ltd. On June 20, 1946, the Maharaja Scindia, the ruler of Gwalior State constituted a Committee to consider the desirability of imposing a "cane cess on the lines of the United Provinces or Bihar and to recommend a procedure for fixation of sugar prices within the terms of the agreement subsisting between the Government and the factory". The Report of the 621 Committee was submitted to the Maharaja by the Chairman on July 23, 1946. In their report the Committee observed that in order to put the industry on a sure and stable footing it was absolutely necessary to develop the cane area and yield in the shortest possible time. For this purpose the Committee recommended that it was essential to levy a cane cess of one anna per maund on all sugar cane purchased by the respondent factory. At the foot of this report the Maharaja made the following endorsement "Guzarish sanctioned, J. M. Scindia, 27 7 46". It may be mentioned that the Committee also recommended the establishment of a Cane Development Board. This recommendation was also accepted by the Ruler. On August 26, 1946, the Economic Adviser to the Government of Gwalior wrote a letter to the Manager of the respondent factory. It will be useful to reproduce the text of that letter as it will have some relevance on the second ground on which the cess is challenged. The letter runs thus: "Dear air, With a view to expand cane area and cane yield in the Harsi commanded area so that the Gwalior Sugar Co., Ltd., be put on a sound and stable basis, the Gwalior Government have decided to impose a cane cess of one anna per maund on all sugarcane purchased by your factory. The operation of this cess will start from the coming sugarcane crushing season. The proceeds of the cess have been earmarked for cane development work in the Harsi region that will be undertaken by a Cane Development Board constituted for the purpose. The Cane Development Board expects your co operation in this development work, which is proposed to be undertaken as soon as possible. Yours sincerely, Secretary, Cane Development Board. " The respondent factory protested against this levy. After the formation of the State of Madhya Bharat, 79 622 the respondent made a representation to the Government of Madhya Bharat against the levy of the cess. That representation was, however, rejected. They, then, paid the cess for the years 1946 to 1948 amounting to Rs. 1,17,712 8 2. The Government of Madhya Bharat made a demand from the respondents for a sum of Rs. 2,79,632 14 9 for the years 1949 to 1951. The respondents challenged the demand upon the two grounds set out above and presented a petition before the High Court of Madhya Bharat for quashing the demand. The petition was opposed on behalf of the State of Madhya Bharat which was the successor State of the former Gwalior State. The High Court granted the petition partially by holding that the State of Madhya Bharat was not entitled to recover the cess due from the respondents after January 26, 1950. It may be mentioned that it was conceded on behalf of the respondent company before the High Court that the State was entitled to recover the cess prior to January 26, 1950. Later, however, the respondents preferred a review petition to the High Court in which they sought relief even in respect of the cess for the period prior to January 26, 1950. The review petition was dismissed by the High Court upon the ground that no such petition lay. The respondents are challenging the view of the High Court in C. A. No. 99 of 1957. After the coming into force of the States Reorganization Act, 1956, the State of Madhya Pradesh has been substituted for the State of Madhya Bharat and they are shown as appellants and respondents respectively in the two appeals. The High Court struck down the cess upon the ground that the order dated July 27, 1946, of the Gwalior Durbar was only an executive order and not a law under article 265 of the Constitution and that, therefore, there was no authority for the imposition of the cess after January 26, 1950. This point is covered by the decision of this Court in Madhaorao Phalke vs The State of Madhya Bharat and Another (1) decided on October 3, 1960. In the course of the judgment of this Court delivered by Gajendragadkar, J., he pointed out: (1) ; 623 "It would thus be seen that though Sir Madhya Rao was gradually taking steps to associate the public with the government of the State and with that object he was establishing institutions consistent with the democratic form of rule, he had maintained all his powers as a sovereign with himself and had not delegated any of his powers in favour of any of the said bodies. In other words, despite the creation of these bodies the Maharaja continued to be an absolute monarch in whom were vested the supreme power of th e legislature, the executive and the judiciary. "In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, how ever issued, would have the force of law and would govern and regulate the affairs of the State including the rights of the citizens. "It is also clear that an order issued by an absolute monarch in an Indian State which had the force of law would amount to an existing law under article 372 of the Constitution." From these observations it would be quite clear that the endorsement of the Maharaja on the Guzarish whereby he accepted the recommendation of the Committee about imposing a cess on the sugarcane crushed by the factory amounted to a law, however informal that endorsement may appear to be. Since it was a law enacted by the Maharaja then, with the coming into force of the Constitution, it became an existing law under article 372 and thus it satisfies the requirements of article 265 of the Constitution. 624 Disagreeing with the High Court we therefore hold that the cess was imposed by authority of law. What remains to be considered is whether this cess violates the guarantee of equal protection contained in article 14 of the Constitution. What was urged Ltd. before the High Court and what was also urged before us was that this is the only sugar factory in the present State of Madhya Pradesh which is liable to pay the cess whereas other sugar factories are exempt therefrom. The result of this is that those other sugar factories do not have to pay this cess and are thus better placed in the matter of carrying on their business of manufacturing and marketing of sugar than the respondents and so there is discrimination against the respondents in that respect. It seems to us, however, that this cannot be regarded as discrimination at all, even after the formation of the State of Madhya Pradesh. The reason is that the difference arises out of the historical background to the imposition of this cess. It has recently been held by this Court in M. K. Prithi Rajji vs The State of Rajasthan & Ors (1) decided on November 2, 1960, that geographical classification based upon certain historical factors is a permissible mode of classification. In our opinion, the principle underlying that decision would also apply to the present case. In view of the decision, Mr. Kapur the learned counsel for the respondents sought to rest his argument on a somewhat different ground. That ground is that under the order of June 27, 1946, the respondent factory alone was made liable to pay cess and that no similar liability was imposed upon any other factory in Gwalior. It would, however, appear that at that time no other sugar factory was at all in existence in the Gwalior State. The respondent factory was the first to be established and for all we know is even today the only sugar factory in the area which formerly constituted the State of Gwalior. We have already quoted the letter written by the Economic Adviser to the Gwalior Government addressed to the Management of the Gwalior Sugar Co., Ltd. From that letter it would (1) C.A. NO. 327 of 1956. 625 appear that the cess was imposed for a definite purpose and that was to expand the cane area in the Harsi commanded region so that the Gwalior Sugar Co., Ltd., that is, the respondent factory would be put on a sound and stable basis. It will, therefore, be clear that far from discriminating against the factory, the whole object of the cess was to do something for the benefit of the factory and for the benefit of the sugar industry in the State which was at that date in its infancy. Apart from the fact that in the matter of taxation the legislature enjoys a wide discretion, it should be borne in mind that a tax cannot be struck down as discriminatory unless the Court finds that it has been imposed with a deliberate intention of differentiating between an individual and an individual or upon grounds of race, religion, creed, language or the like. There was no question of doing anything like this in the year 1946 when no other sugar factory existed in the State of Gwalior. The cess was thus good in law when enacted and it has not been rendered void under article 13 by reason of the coming into force of the Constitution on the ground that it violates article 14. In our opinion, therefore, both the grounds on which the validity of the cess is challenged are ill conceived and the cess is a perfectly valid one. It would, therefore, be competent to the State of Madhya Pradesh to realise that cess from the respondent factory. Upon the view we have taken in the matter in C. A. No. 98 of 1957 nothing remains to be considered in C. A. No. 99 of 1957. Accordingly we allow the appeal by the State and dismiss that of the respondents. The costs of the appeal will be borne by the respondents in C. A. No. 98 of 1957. As both the appeals were argued together, there will be only one set of hearing fees. Appeal No. 98 allowed. Appeal No. 99 dismissed. [/INST]The High Court of. Jammu and Kashmir, relying on the decisions of this Court in Election Commission, India vs Saka Venkata Subba Rao; , and K. section Rashid and Son vs The Income Tax Investigation Commission etc. ; , , dismissed an application for a writ made by the appellant against the Union of India and Anr. under article 32(2A), the relevant provisions of which are in the matter of enforcement of fundamental rights the same as in article 226 of the Constitution, on the preliminary objection that the said application was not maintainable against the Union of India as it was outside the territorial jurisdiction of that Court. The appellant 's case was that he was holding the substantive rank of Lieut. Col. in Jammu and Kashmir and had the right to continue in service until he attained the age of 53 on November 20, 1961, but was prematurely retired by a letter issued by the Government of India on July 31, 1954, without any allegation or charge and in contravention of article 16(1) of the Constitution. Held, that there can be no doubt as to the correctness of the decisions relied on by the High Court and the appeal must fail. 829 The jurisdiction of the High Court under article 226 of the Constitution, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect cannot enter into the determination of such jurisdiction. Since functioning of a Government really means giving effect to its order, such functioning cannot determine the meaning of the words "any person or authority within these territories" occurring in the article. A natural person, therefore, is within those territories if he resides there permanently or temporarily, an authority other than the Government is within those territories if its office is located there and a Government if its seat from which, in fact, it functions is there. It is not correct to say that the word "authority" in article 226 cannot include a Government. That word has to be read along with the clause "including in appropriate cases any Government" immediately following it, which, properly construed, means, that the word may include any Government in an appropriate case. That clause is not connected with the issuance of a writ or order and is not intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government, and only means in such cases where the authority against whom the High Court has jurisdiction to issue the writ, happens to be a Government or its subordinates, the High Court may issue a writ against the Government. Election Commission, India vs Saka Venkata Subba Rao, and K. section Rashid and Son vs The Income tax Investigation Commission etc. ; , , approved. Maqbulunnissa vs Union of India, I.L.R. (1953) 2 All. 289, overruled. The Lloyds Bank Limited vs The Lloyds Bank Indian Staff Association (Calcutta Branches), I.L.R. , referred to. Proceedings under article 226 are not suits covered by article 300 of the Constitution. Such proceedings provide for extra ordinary remedies by a special procedure and there is no scope for introducing the concept of cause of action in it in the face of the express limitation imposed by it, that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction. Ryots of Garabandho vs Zamindar of Parlakimedi, (1943) L.R. 70 I.A. 129, held inapplicable. The resulting inconvenience of such an interpretation of article 226 to persons residing far &way from New Delhi, where the Government of India is in fact located, and aggrieved by some order passed by it, may. be a reason for suitably amending the Article but cannot affect its plain language. This Court should not, except when it is demonstrated beyond all reasonable doubt that the previous ruling, given after 105 830 due deliberation and full hearing, was erroneous, go back upon it, particularly on a constitutional issue. Per Subba Rao, J. The object that the framers of our Con stitution had before them in declaring the fundamental rights in Part III of the Constitution and empowering the High Courts by article 226 of the Constitution to enforce them would be largely defeated if a person in a remote part of the country had to come to New Delhi to seek the protection of the Punjab High Court whenever the Union Government infringed his fundamental right. The power of the High Courts under article 226 of the Consti tution is of the widest amplitude and it can issue not merely writs but also directions and orders. The words "any Government" in the Article includes the Union Government which has no constitutional situs in a particular place and exercises its powers throughout India and must, therefore, be deemed in law to have functional existence throughout India and thus within the territories of every State. Consequently, when the Union Government infringes the legal right and interest of a person residing within the territorial jurisdiction of 'a High Court, the High Court has the power under the Article to issue a writ to that Government. If its orders are disobeyed by that Government or any of its officers, even though physically outside its territories, it can proceed in contempt against them under the Contempt. of Courts Act, 1952. Election Commission, India vs Saka Venkata Subba Rao, ; , held inapplicable. K. section Rashid and Son vs Income Tax Investigation Commission, ; and Ryots of Garabandho vs Zamindar of Parlakimedi, L.R. 70 I.A. 129, considered. Maqbul Unnissa vs Union of India, I.L.R. (1953) 2 All. 289, approved. Surajmal vs State of M.P., A.I.R. 958 M.P. 103 and Radhe shyam Makhanlal vs Union.of India, A.I.R. 1960 Bom. 353, held inapplicable. In the instant case, therefore, the High Court had the power to issue the writ to the Union Government under article 32(2A) of the Constitution. Per Das Gupta, J. It is neither correct nor appropriate to speak of location of any Government and there is no satisfactory test for ascertaining the location of the Government of India. Since the Government functions throughout the territory of India, the conclusion must be that it is within the territories under the jurisdiction of every High Court. The words "any Government" in article 226 clearly indicate that the High Court was intended to give relief against that Government as well. Even though the Government, of India is within the territories of every High Court, it will not have to face applications 831 for relief against the same order in all the High Courts in India. The words "in appropriate cases" in that Article, properly construed, indicate that there can be only one High Court thereunder that can exercise jurisdiction under the Article for every act or omission in respect of which relief is claimed. It is possible in every case to ascertain the place where the act or omission took place and that High Court alone, which exercises jurisdiction over that place, can have jurisdiction to grant relief under the Article. It is not correct to say that under article 226 the cause of action determines the jurisdiction. Neither that Article nor article 32(2A) of the Constitution is based on that principle. Election Commission, India vs Saka Venkata Subba Rao, ; , approved. </s>

<s>[INST] Summarize the judgementvil Appeal Nos. 1205 06 of 1987. From the Judgment and Order dated 24.3. 1987 of the Andhra Pradesh High Court in Writ Petition No. 15582 of 1986. Dr. Y.S. Chitale, B. Parthasarathy and K.V. Sreekumar for the Appellant. T.S. Krishnamurthy Iyer, T.V.S.N. Chari, Ms. V. Grover and Ms. Sunita M. for the Respondents. The Judgment of the Court was delivered by 952 JAGANNATHA SHETTY, J. This appeal on a certificate raises a short but an important question as to the Constitu tional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act No. 26 of 1986) (called shortly "The Commissionerate Act"). The question is whether the enactment falls within Entry 66 List I or Entry 25 List III Concurrent List of the Seventh Schedule to the Consti tution. The High Court of Andhra Pradesh has upheld its validity by holding that the Act falls under the latter Entry, but granted a certificate for leave to appeal to this Court under Article 133(1) of the Constitution. The said Act was enacted on the basis of the recommenda tions of a high power committee constituted by the State Government to study the higher education system in the State of Andhra Pradesh with special reference to its curricula, courses of study, finance and management. The Committee in its report submitted to the Government observed, inter alia, that there is no proper coordination and academic planning among the various bodies like Universities, Directorate of Higher Education and University Grants Commission etc. There is no policy perspective in the development of higher educa tion system. The Committee said that in order to streamline the general working and oversee the development of higher education in the State, there is need to constitute a Com mission to advise the Government in that matter. The Government appears to have accepted the said report of the Committee. That is obvious from the Preamble to the Commissionerate Act. It states that "Act is to provide for the Constitution of a Commissionerate to advise the Govern ment in matters relating to Higher Education in the State and to oversee its development with perspective planning and for matters connected therewith and incidental thereto." Section 2(e) defines "Higher Education" to mean interme diate education and education leading to a degree or post graduate degree including professional and technical educa tion. Section 2(c) defines "Commissionerate" to mean the Andhra Pradesh Commissionerate of Higher Education consti tuted under subsection (1) of Section 3. Thereunder, the Commissionerate has been constituted as a Corporate body. The composition of the Commissionerate is provided under Section 4. The Commissionerate shall consist of Chairman, Vice Chairman and not more than 10 members [Section 953 4(1)]. The Chairman and the Vice Chairman shall be appointed by the Government [Section 4(2)]. Of the ten members of the Commission, three are Secretaries to the Government: Educa tion Secretary, Labour Secretary and Finance and Planning Secretary. Four of them shall be representing Professors and Vice Chancellors of any of the Universities in the State. One shall represent industry and commerce, and another shall represent engineering or legal or medical education. The last one shall be a distinguised educationalist. All these persons are to be appointed only by the Government. The Chairman and ViceChairman shall be whole time and salaried persons and their terms and conditions are provided under Section 5(1). Section 9 gives overriding effect and power to the Commissionerate over all other authorities and bodies con nected with the Higher Education in the State. Section 9(1) provides: "With effect on and from the Constitution of the Commissionerate under Section 3 and not withstanding anything contained in the Andhra Pradesh Intermediate Education Act, 1971, and the Andhra Pradesh. Education Act, 1982, the Director of Higher Education, the Secre tary, Board of Intermediate Education and the Secretary to the Board of Technical Education shall function under the administrative con trol of the Commissionerate." Section 9(2) provides power to the Government to appoint a Secretary to the Commissionerate. Rest of the Officers and employees are to be appointed from time to time by the Commissionerate but with the previous approval of the Gov ernment. The Central power of the Commissionerate has been locat ed in Section 11. We may give the gist of it here. The Commissionerate shall (i) evolve a perspective plan for the development, of Higher Education in the State; (ii) monitor and evaluate the academic programmes in higher education and enforce accountability in the system; (iii) establish and develop resources centre for curriculam materials and continuing education of teachers; (iv) co ordinate the academic activities of various institutions of higher education in the State; 954 (v) undertake examination reforms; (vi) establish linkages between Universi ties industries and community development organisations: (vii) transfer teachers appointed in aided posts from one aided private college to anoth er such college subject to such rules as may be made by the Government in this behalf and generally encourage mobility of teachers;and (viii) perform any other functions neces sary for the furtherance and maintenance of excellence in the standards of higher educa tion in the State. Section 11(2) provides: "Notwithstanding anything contained in any law relating to Universities in the State, the Board of Intermediate Education Act, 1971 and the Andhra Pradesh Education Act, 1982, every University or college including a private college in the State shall obtain the prior approval of the Commissionerate in regard to (i) creation of new posts; (ii) financial management; and (iii) starting of new higher educational institutions. Section 13 is another important Section. It provides power for inspection for ascertaining the financial needs of a University or its standards of teaching, examination and research. The Commissionerate shall communicate to the University its views in regard to the result of any such inspection and may, after ascertaining the opinion of the University, recommend to the University the action to be taken as a result of such inspection and the University shall comply with any such direction. Section 16 states that the Commissionerate shall be guided by such directions issued by the Government on ques tions of policy relating to State purposes or in case of any emergency as may be given to it by the Government. Section 18 confers power to the Government to make rules to carry out all or any of the purposes of the Act. Section 19 955 provides power to the Commissionerate to make regulations consistent with the Act and the rules made thereunder. The sole contention of Dr. Chitale, learned counsel for the appellant is that the Commissionerate Act is just a duplicate of the University Grants Commission Act ("The UGC Act") and the State has no legislative power at all to enact it, since it squarely falls under Entry 66 List I. But the contention of Mr. Krishnamurthy Iyer, learned counsel for the State of Andhra Pradesh, is to the contrary. While supporting the judgement of the High Court, he submitted that the enactment in pith and substance falls within Entry 25 of List III and not under Entry 66 of List I of the Seventh Schedule. For proper consideration of the conten tions we may set out these two Entries: Entry 66 List I: "Co ordination and determination of standards in institution for higher education or research and scientific and techni cal institutions. " Entry 25 List III: "Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 & 66 of List I, vocational and technical training of labour." Till January 3, 1977, Education was a State subject under Entry 11 in List II. By the 42nd Amendment Act, 1976, Entry 11 was deleted and it was placed in the Concurrent List by enlarging the Entry 25, as set out above. Entry 25 List III relating to education including tech nical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to co ordinate and determine the stand ards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any 956 project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education ' has been distributed between List I and List III of the Seventh Schedule. The Parliament has exclusive power to legislate with respect to matters included in List I. The State has no power at all in regard to such matters. If the State legis lates on the subject falling within List I that will be void, inoperative and unenforceable. In Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552 this Court said: "The power of Parliament to legis late with respect to matters included in List I is supreme notwithstanding any thing contained in clause (3) (again leaving out of consi deration the provision of clause 2). Now what is the mean ing of the words "notwithstanding" in clause (1) and "sub ject to" in clause 3; They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List takes effect notwithstanding the entry in List II. This is also on the princi ple that the 'special ' excludes the 'general ' entry in List II is subject to the special entry in List I." We may now refer to some of the decisions dealing with the inter action of Entry 66 List I and Entry 25 List III. In Gujarat Universi ty, Ahmedabad vs Krishna Ranganath, [1963] Suppl. 1 SCR 112, 137. Shah J. speaking for the majority view of the Constitution Bench observed: "Item 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression "Subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded mat ters cannot be undertaken by the State Legis latures. In Hingir Rampur Coal Co. vs State of Orissa ; , this Court in consid ering the import of the expression "Subject to" used in an entry in List II in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in an entry in List II the power is taken away from 957 the State Legislature. Power of the State to Legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament." This decision turned on the interpretation of Section 4(27) of Gujarat University Act, and it was held that the University has no power to prescribe Gujarati or Hindi as exclusive medium of instruction in higher education. The principles enunciated in the Krishna Rangnath case have been reiterated in D.A.V. College, Bhatinda etc. vs State of Punjab & Ors., The power of the State to prescribe certain norms for admission to colleges came for consideration before this Court in R. Chitralekha & Anr. vs State of Mysore & Ors. , ; where Subba Rao J., as he then was, ob served: "that if the law made by the States by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or diffi cult the exercise of the legislative power of the Parliament under the entry "Co ordination and determination of standards in institutions for higher education or research and scientif ic and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypo thetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field it may be struck down. But that is a question of fact to be ascertained in each case. " The learned Judge, however, upheld the impugned scheme of the State in that case for selection of students 'to colleges maintained by the State since it was found that that scheme only prescribed criteria for making admissions to colleges from among students who secured the minimum qualifying marks prescribed by the University. It was held that the scheme did not encroach upon the field covered by Entry 66 List I of the Seventh Schedule to the Constitution. Similar was the view expressed by this Court in State of Andhra Pradesh vs Lavu 958 Narendranath & Ors. ; , and in Ambesh Kumar vs Principal, LLRM College, Meerut, ; What do we have in the present case? There is no scheme for admission to colleges. There is a corporate body estab lished under the State enactment with powers supreme in regard to all matters pertaining to higher education. To mention a few, the Commissionerate constituted thereunder shall evolve a perspective plan for the development of higher education in the State. It must monitor and evaluate the academic programmes. It must co ordinate the academic activities of various institutions and universities. It must oversee the development and streamline the higher education in the entire State. It shall perform all functions neces sary for .the furtherance and maintenance of excellence in the standards of higher education in the State. It also controls the entire fund meant for the universities includ ing grants given by the Central Government for higher educa tion. Since it was argued that both these enactments are in parimateria, it will be useful to compare the UGC Act with the corresponding provisions of the Commissionerate Act by keeping them side by side: U.G.C. Act, 1956 The Commissionerate Act 1. Statement of Objects and reasons: "The Constitution of India In order to bring a change vests Parliament with in the higher education exclusive authority in system in the State so as regard to Co ordination to make the courses of and determination of study more relevant to the standards in institutions needs of the modern society for higher education or and to provide opportu research and scientific nities of earning and and technical instituti learning simultaneously ons. It is obvious at college level to all the that neither coordination students in the State, a nor determination of four man committee was standards is possible appointed in February, 1986 unless the Central by the State Government to Government has some voice study the higher education 959 in the determination of system in the State with standards of teaching special reference to curri and examination in cula and courses of studies, Universities, both old Finance and Management in and new. the Higher Education system. It is, therefore, The Committee in its proposed to establish report submitted to a University Grants Government observed Commission as a that there is no proper corporate body which co ordination and academic will inquire into the planning among the various financial needs of bodies like universities; universities and the Directorate of Higher allocate and disburse Eduation and the Univer grants to Universities sity Grants Commission etc. for any general or and there is no policy specified purpose. The perspective in the Commission will act as an development of the expert body to advise Higher Education system the Central Government in the State and in order on problems connected to streamline the general with the coordination of working of the higher facilities and Education system in the maintenance of standards State the Committee in Universities. suggested to constitute The Commission, in consul a commission to advise tation with the University the Government in connected, will also have matters relating to the power to cause an higher education in the inspection or inquiry to State and to oversee be made of any university its development. The established by law in Government have examined India and to advise the the above recommendations university on any matter and suggestions and which has been the decided to constitute subject of an inquiry or a Commissionerate of inspection. The Commi Higher Education. ssion shall also advise, whenever such advise is sought, on the establish ment of new Universities. Establishment of Sec. Constitution of the Commission: Commissionerate of Higher Education: (1) With effect from such The Government may, by date as the Central Govern notification, and with ment may, by notification effect on and from such in the official Gazettee, date as may be specified appoint, there shall be therein constitute a established a Commission Commissionerate for the by the name of the Univer purpose of this Act sity Grants Commission. to be called The Andhra Pradesh Commissionerate of Higher Education. (2) The said Commission (2) The Commissionerate shall be a body corporate shall be a body corporate having perpetual having perpetual success succession and a common ion and a common seal and seal, and shall by the shall sue and be used said name sue and be sued. by the said corporate name. (2)(b) xxx xxx xxx Sec. 5 Composition of the Sec. 4 Composition of the Commission: Comissionerate: (1) The Commission shall (1) The Commissionerate consist of: shall consist of: (i) A Chairman, and (i) A Chairman (ii) A Vice Chairman, and (ii) A Vice Chairman, and (iii) ten other members, to (iii) not more than ten be appointed by the members to be appointed by Central Government the State Government Sec. 9 Temporary Associa Sec. 8 Temporary Associa tion of person with the tion of persons with the Commission for particular Commissionerate for purpose particular purpose (Both these Sections are similar) Functions of the Sec. 11 Powers and Functions Commission: of the Commissionerate It shall be the general duty It shall be the general duty of the Commission to take, of the Commissionerate to: in consultation with the Universities or other a) evolve a prospective bodies. concerned, all plan for the development such steps as it may of higher education in the think fit for the State; promotion and co ordi nation of University b) administer and release Education and for the grants in aid to Univer determination and main sities as private tenance of standards colleges in the State and of teaching, examina report the same to the tion and research in Government. University and for the purpose of performing c) xxx xxx xxx its functions under this Act, the Commission d) monitor and evaluate may: the academic programmes in higher education and enforce accountability in the system. a) Inquire into the finan e) xxx xxx cial needs of Universities f) xxx xxx b) Allocate and disburse, out of the fund of the g) co ordinate the Commission, grants to academic activities of Universities established various institutions of or incorporated by or higher education in the under a Central Act for State. the maintenance and development of such xxx xxx universities or for any other general or p) Perform any other specified purpose. functions necessary to the furtherance and c) Allocate and disburse maintenance of excell out of the fund of the ence in the standards of Commission, such grants higher education in the 962 to other Universities as State, it may deem necessary or appropriate for the development of such Universities or for the maintenance, or development or both, of any specified activities of such Universities or for any other general or specified purpose recommended to any University the measure necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations. 13 Inspection: Sec. 13 Inspection: (1) For the purpose of (1) For the purpose of ascertaining the finan ascertrining the financial cial needs of a Univer needs of a University or its sity or its standards of standards of teaching, exami teaching, examination and nation and research. the research, the Commission Commissionerate may, after may, after consultation with consultation with the Uni the University cause an versity, cause an inspection inspection of any department of any department or depart or departments thereof to ments thereof to be made in be made in such manner as such manner as may be may be prescribed and by prescribed and by such such person or persons as person or persons as it may it may direct. direct. (2) The Commission (2) The Commissionerate shall shall communicate to communicate to the University the University the date the date on which any inspec on which any inspection tion under sub section (1) under sub section (1) is shall be made and the Univer to be made and the sity shall be entitled to be University shall be associate with inspection 963 entitled to be associa in such manner as may be ted with the inspection prescribed. in such manner as may be prescribed. (3) The Commissionerate shall communicate to the University its views in regard to the result of any such inspection and may, after ascertaining the opinion of the University, recommend to the University, the action to be taken as a result of such inspection, and the University shall comply with any such direction. 16 Fund of the Sec. 12 Fund of the Commission Commissionerate: (1) The Commission shall (1) The Commissionerate shall have its own fund and have its own fund consisting all sum which may, from of the grants from Government time to time, be paid voted by the Legislative Ass to it by the Central embly of the State towards Government and all the grants to Universities, and receipts of the Commi aided Junior and Degree ssion (including any Colleges and grants received sum which any State from Central Government for Government or any other higher education. authority or person may handover to the Commi (2) All moneys belonging to ssion) shall be carried the Fund shall be deposited to the fund and all in such banks or invested in payments by the such manner as may, subject Commission shall be to the approval of the made therefrom. Government, be decided by the Commissionerate. (2) All moneys belong ing to the fund shall (3) The Commissionerate may be deposited in such spend such sums as it thinks banks or invested in fit for performing its such manner as may, functions under this Act, subject to the approval and such sums shall be 964 of the Central Govern treated as expenditure ment be decided by payable out of the fund the Commission. of the Commissionerate. (3) The Commission may spend such sums as it thinks fit for performing its functions under this Act, and such sums shall be treated as expenditure payable out of the fund of the Commission. 18 Annual Report Sec. 14 Annual Report The Commission shall The Commissionerate shall prepare, once in every prepare once in every year, year in such form and at in such form and at such time such time as may be as may be prescribed an Annual prescribed, an annual Report giving a true and full report giving a true and account of its activities full account of its acti during the previous year, vities during the previous and copies thereof shall be year, and copies thereof forwarded to the Government shah be forwarded to the and the Government shall Central Government and the cause the same to be laid Government shall cause the before the Legislative same to be laid before Assembly of the State. both Houses of Parliament. 19 Accounts & Audit Sec. 15 Accounts & Audit Sec. 20 Directions by Sec. 16 Directions by the the Central Government Governments (1) In the discharge of (1) In the discharge of its functions under this its functions under this Act, Act. the Commission shall the Commissionerate shall be be guided by such direc guided by such directions tions on questions of on question of policy policy relating to relating to State purposes national purposes as may or in case of any emergency as be given to it by the may be given to it by the 965 Central Government. Government. (2) If any dispute arises (2) If any dispute arises between the Central between the Government Government and the Commi and the Commissionerate ssion as to whether a as to whether a question question is or is not a is or is not a question of question of policy policy relating to State relating to national purposes, or whether an purposes the decision of emergency has arisen, the the Central Government decision of the Government shall be final. thereon shall be final. 25 Power to make Rules Sec. 18 Power to make Rules Sec. 26 Power to make Sec. 19 Power to make Regulations. Regulations. " We have extracted only such of the provisions similar to those contained in the UGC Act. That is not all. The Commis sionerate Act yet contains sweeping provisions encroaching on the autonomy of the Universities. Under Section ll(1)(c) it is for the Commissionerate to decide on the need for, and location of new colleges and courses of study including Engineering Colleges. Section 11(1)(f) provides power to the Commissionerate to establish and develop resources centre for curriculuam materials and continuing education of teach ers. Section 11(1)(g) confers power on the Commissionerate to coordinate the academic activities of various institu tions of higher education in the State. It is also the duty of the Commissionerate to undertake examination reforms and assume accreditation functions [Section 11(1)(h) & (i)]. Section 11(1)(j) states that it is the duty of the Commis sionerate to organise entrance test for University admis sion. Section 11(1)(k) states that it shall administer and grant scholarship and organise work study programmes. Sec tion 11(1)(0) provides power to transfer teachers from one aided private college to another such college, subject to the rules made by the Government. There is yet a devastating provision on the autonomy of Universities. section 11(2) states that every University or College including the pri vate college shall obtain the prior approval of the Commis sionerate in regard to: (i) creation of new posts; (ii) financial management; and (iii) starting of new higher educational institutions. This 'Super Power ' has been pre served to the Commissionerate notwithstanding anything contained in any law relating to Universities in the State, the Board of Intermediate Education and the Andhra Pradesh Education Act, 1982. It will be seen that the Commissionerate has practically taken over the academic programmes and activities of the Universities. The Universities have been rendered irrelevant if not non entities. It is apparent from this discussion that the Commission erate Act has been drawn by and large in the same terms as that of the U.G.C. Act. The Commissionerate Act, as we have earlier seen also contains some more provisions. Both the enactments, however, deal with the same subject matter. Both deal with the co ordination and determination of excellence in the standards of teaching and examination in the Univer sities. Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established for the purpose of construction of statutes. The High Court appears to have gone on a tangent. The High Court would not have fallen into an error if it had perused the UGC Act as a whole and compared it with the Commissionerate Act or vice cersa. In Prem Chand Jain vs R.K. Chhabra, ; this Court has held that the UGC Act falls under Entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative. In the result, these appeals are allowed with costs. The judgment of the High Court is reversed. There shall be a direction to the State not to enforce the provisions of the impugned Act. Before parting with the case we may say a word more. The impugned Act was the result of a report from a High Power Committee constituted by the State Government. The Committee went into the affairs of the higher education in the State. The Committee examined among other things, the curricula and courses of studies. The Committee found as a fact that there is no proper coordination and academic planning among the various bodies. It recommended to the State Government the need to pass a proper legislation to stream 967 line the higher education. The State Government accepted the recommendations and passed the Act in question. The Act now disappears for want of legislation competence. What about the need to enact that Act? It will not vanish to the thin air. The defects and deficiency pointed out by the High Power Committee in regard to higher education may continue to remain to the detriment of the interest of the State and the Nation. Such defects in the higher education may not be an isolated feature only in the State of Andhra Pradesh. It may be a common feature in some other States as well. That apart, we often hear and read in news papers with disgust about the question papers leakage and mass copying in the University examinations. It has stripped the univer sity degrees of all its credibility. He indeed must be blind who does not see what is all happening in some of the Uni versities. The Constitution of India vests Parliament with exclu sive authority in regard to co ordination and determination of standards in institutions for higher education. The Parliament has enacted the UGC Act for that purpose. The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities. Democracy depends for its very life on a high standards of general, vocational and profes sional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. It is hoped that University Grants Commission will duly discharge its responsibility to the Nation and play an increasing to role bring about the needed transfor mation in the academic life of the Universities. N.P.V. Appeal al lowed. [/INST]The Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act No. 26 of 1986) providing for the constitu tion of a Commissionerate to advise the Government in mat ters relating to Higher Education in the State and to over see its development with perspective planning and for mat ters connected therewith and incidental thereto and to perform all functions necessary for the furtherance and maintenance of excellence in the standards of higher educa tion in the State was enacted on the basis of the recommen dations of a high power committee constituted by the State Government to study the Higher Education system in the State with special reference to its curricula, courses of study, finance and management. The validity of the aforesaid Act was challenged in the High Court which, while upholding it, held that the Act fell under Entry 25 List III Concurrent List of the Seventh Schedule to the Constitution of India. In the appeals to this Court, it was contended on behalf of the appellant that the Act was just a duplicate of the University Grants Commission Act and the State had no legis lative power at all to enact it since it squarely fell under Entry 66 List I. On behalf of the Staterespondent it was submitted that the enactment in pith and substance fell within Entry 25 of List III and not under Entry 66 of List I of the Seventh Schedule. Allowing the appeals, this Court, 950 HELD: 1.1 Entry 25 List III relating to education in cluding technical education, medical education and Universi ties had been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. [955F G] 1.2 Entry 66 gives power to the Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. It is the exclusive responsibility of the Central Government to co ordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state, that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education ' has been distrib uted between List 1 and List 111 of the Seventh Schedule. ]955G H; 956A B] 1.3 Parliament has exclusive power to legislate with respect to matters included in List I. The State has no power at all in regard to such matters. If the State legis lates on the subject failing within List I that will be void, inoperative and unenforceable. [956B] 1.4 The Commissionerate Act has been drawn by and large in the same terms as that of the U.G.C. Act. Both the enact ments deal with the co ordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they convey the same meaning. It is just like referring the same person with different descriptions and names. [966B D] 1.5 The High Court has gone on a tangent, and would not have fallen into an error if it had perused the UGC Act as a whole and compared it with the Commissionerate Act or vice versa. [966D] 1.6 The Commissionerate Act contains sweeping provisions encroaching on the autonomy of the Universities. The Commis sionerate has practically taken over the academic programme and activities of the universities. The universities have been rendered irrelevant if not nonentities. [965D; 966A B] 1.7 It is unthinkable as to how the State could pass a parallel 951 enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I Such an encroachment is patent and obvi ous. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative. [966E F] 1.8 The Constitution of India vests Parliament with exclusive authority in regard to co ordination and determi nation of standards in institutions for higher education. The Parliament has enacted the UGC Act for that purpose. The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities. Democracy depends for its very life on high standards of general, vocational and profes sional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. [967D E] The University Grants Commission, it is hoped will duly discharge its responsibility to the Nation and play an increasing role to bring about the needed transformation in the academic life of the Universities. [967E F] Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552; Gujarat University, Ahmedabad vs Krishna Ranganath, [1963] Suppl. 1 SCR 112; DAV College, Bhatinda etc. vs State of Punjab & Ors. , ; R. Chitralekha & Ant. vs State of Mysore & Ors. , ; ; State of Andhra Pradesh vs Lavu Narendranath & Ors, etc.; , ; Ambesh Kumar vs Principal, LLRM College, Meerut, ; and Prem Chand Jain vs R.K. Chhabra; , , referred to. </s>

<s>[INST] Summarize the judgementins Matters. A. Movement by Road: (a) WP. Nos.2907 2908,3234, 3238 39,3164,3254, 3630 31,3686, 3783, 3816, 4816, 4929 31, 4836 38, 4996 5001, 5051 54, 5089 93, 5136 46, 5247, 3160, 3634, 4494,4616,4967, 5362 71, 5416 20, 5447 50,5716 17, 5840,6015,6587 89 & 6609 14/81. (b) WP. 5062,5157 58,5451 & 5615 17/81. (c) WP Nos. 5097,5042, 5098, 5017, 5214 & 6135 36/81 & 7003/81. (d) WP. Nos.3421, 3407, 3408 13, 3422, 3536, 3561 64, 5238,13824, 5466, 5544, 6009, 6130 31, 6572 74 & 6582 83/81. (e) WP. 4904 4905, 5080, 5094, 5239 45, 5358 59, 5395, 5483, 5484 88, 5489 92, 5734 39, 6584 86 & 6817 21/81. (f) WP. Nos.4960 62, 4958 59, 5129 33, 5219 20, 5331 33, 5518 19, 5526, 5428 31 & 5527/81. (g) WP. 4526, 4926, 4995, 5046, 5048 50, 5100, 5101, 5136 46,5402 11, 5436 38, 5560, 5520 21, 5562,5558, 5556, 5559,5550,5546 47, 5552, 5555, 5553 54,5511, 5482, 5618 19,5809 20,6132 33, 6244, 6273 75,6267 72, 5512 14, 5515,6570 and 5562/81, 7027 29 and 7032 34/81. (h) WP. Nos.5221,5380 83,5129 33,5421 22,5440, 5507 10, 5662, 5806 5807, 6245, 6246, 6265, 6398 and 6684/81. 1145 (i) WP. 3592, 3353, 5396, 6016, 6247 48, 6616, 6668 and 6798/81. (j) WP. Nos.5003, 4453, 4455 56,5346 48,4955,5082 89, 5577 80, 5581 and 5724/81. (k) WP. Nos.3489 and 4293/82. (l) WP. No. 4818/81. (m) WP. Nos.2916,2932,3242, 3297 3302,3334 43, 3475, 4098 4100, 4136, 4304, 4187, 4777, 5007 17,5027 34, 5352 55, 5473 79, 5604 5608, 5740 42, 5743 44, 5821, 6012 13 and 5583 92/81. (n) WP Nos. 5391 and 5525/81. (o) WP No. 5443/81. (p) WP. Nos. 5444,5663 and 6266/81. (q) WP. No. 5464/81. (r) WP. 5451 and 5564 66/81. (s) WP. No. 5807/81. (t) WP. Nos.5571 75, 5622 29 and 6014/81. (u) WP. Nos.5718 19/81 and 6943/81. (v) WP. No. 5568 69/81. B. Restriction on Quantum of Food Grains which can be held: (a) WP. 2932, 3776 3780, 4140 45, 4326 28, 4876 4902, 4670 78 and 5473 79/81. (b) WP. No. 5480/81. (c) WP. 4955 56,5330,5392,3823 and 6278/81. (d) WP. Nos. 5529 30/81. (e) WP. Nos.5531 32/81. 1146 (f) WP. 5841 50/81. (g) WP. 5656 58/81. (Under Article 32 of the Constitution of India) Hari Sarup, M.N. Phadke, Soli J. Sorabjee, J.P. Goyal and C.M. Lodha, (M/s. B. Datta, R.A. Gupta, Miss Kamini Jaiswal, Rajiv Dutta, Manoj Swarup and Miss Lalita Kohli, R.S. Sharma, R.K. Jain, Pankaj Jain, P.K. Jain, K.K. Jain, K.B. Rohatgi, B.R. Kapur, B.S. Tawakley, S.R. Srivastava, N.N. Sharma, A.K. Goel, Mitter and Mitter and Co., S.K. Jain, Rajesh Jain, Mukul Mudgal, M. Qamaruddin, Mrs. M. Qamaruddin, Anis Suhrawardhy, A.P. Mohanty, K.K. Gupta, Ravi Prakash Gupta, C.K. Ratnaparkhi, S.C. Birla, M.C. Dhingra, and S.K. Gambhir for the appearing Petitioners. G.N. Dikshit, O.P. Rana, Mrs. Shobha Dixit, R.N. Poddar, G. Gopalakrishan, A.V. Rangam, B.D. Sharma, D.P. Mohanty and A. Shroff for the Respondents. The Judgment of the Court was delivered by SEN, J. The issue in this and the connected 505 petitions under article 32 of the Constitution is of far reaching significance. It raises questions of the highest importance as to the scope and extent of the executive power of the State under article 162 of the Constitution, in relation to regulation and control of trade and commerce in food stuffs. It necessarily involves a claim by the petitioners who are wholesale dealers of foodgrains that the exercise of such governmental power conflicts with the rule of law and is in flagrant violation of the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution and the fundamental right to carry on trade and business guaranteed under article 19 (1) (g) of the Constitution. These petitions fall into two distinct and separate categories, one by the wholesale dealers of foodgrains from the Union Territory of Delhi and the neighbouring States of Punjab and Haryana, and the other by the wholesale dealers of foodgrains from the State of Uttar Pradesh. 1147 The short question that falls for consideration in some of the writ petitions by wholesale dealers of foodgrains from the Union Territory of Delhi and the State of Punjab and Haryana is whether the action of the State Government of Uttar Pradesh in setting up check posts on its borders and the stoppage and seizure of wheat in transit through the State of Uttar Pradesh during the course of inter State trade and commerce to various destinations in the States of Madhya Pradesh and Maharashtra at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on the strength of its instructions conveyed by its teleprinter message dated March 31, 1981, was in violation of article 301 of the Constitution. In a majority of the writ petitions by wholesale dealers from the State of Uttar Pradesh, two questions arise, (1) whether Notification No. P XXIX Food 5 5 (42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, in exercise of the powers conferred by section 3 read with section 5 of the (hereinafter referred to as the Act), by which cl.4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, providing that no wholesale dealer, commission agent or retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, Infringes the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and (2) whether the governmental instructions conveyed by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of the fundamental right under article 19 (1) (g) read with article 301 of the Constitution. The following are the facts and circumstances so far as necessary to show as to how the legal questions are presented. It would be convenient first to deal with the writ petitions filed by the whole sale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana seeking a declaration that the impugned action of the State Government of Uttar Pradesh in setting up check posts on the borders of the State and directing seizure of wheat in transit through the State, on the strength of the impugned teleprinter message, conflicted with the guarantees of inter State trade and commerce dealt with by Art, 301 of the Constitution. 1148 Facts in all these cases are more or less similar. The petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana allege that between April 29 30, 1981, they, acting as commission agents, purchased wheat from the open market in Delhi and elsewhere and despatched the same by trucks to various destinations in the State of Maharashtra and to some places in the State of Madhya Pradesh. According to them, the trucks laden with wheat were accompanied by relative bills, goods receipts, inter State transit passes etc. , duly crossed the check post at Faridabad and were also allowed to cross the check post at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh and were on their way to their respective destinations. They allege that the Senior Marketing Inspector, Agra, intercepted the trucks in question at the check post at Saiyan on the border between the State of Uttar Pradesh and Madhya Pradesh between April 30, 1981, and May 2, 1981. The seized trucks were brought back to the purchase point at Agra and the wheat was unloaded. Thereupon, the petitioners rushed to Agra and made an application on May 4, 1981, under s.6A read with sections 3 and 7 of the Act before the Additional District Magistrate (Civil Supplies), Agra, for the release of the seized wheat. In the said application, the petitioners, inter alia, claimed and unequivocally stated that there was no ban on export of wheat from the Union Territory of Delhi to other States, that the wheat in question was neither purchased at Agra, nor was it being transported from Agra to any other district in Uttar Pradesh, that Agra was a place in transit, and that the instructions of the State Government contained in the impugned teleprinter message dated March 31, 1981 did not constitute a validly notified order under sub section (5) of section 3 of the Act. The Chief Marketing Inspector, Agra, had in the meanwhile seized 42 trucks laden with wheat either at the check post at Saiyan or at Agra and lodged first information reports at the Saiyan police station or at the Civil Lines police station in respect of the consignments alleging that the movement of wheat was in contravention of the impugned teleprinter message and was therefore seized, and in three of them it was alleged that the wheat had been purchased at Agra. On the report of the Chief Marketing Inspector, the Additional District Magistrate (Civil Supplies), Agra drew up proceedings under section 6A of the Act and directed the police to complete the investigation within 15 days. 1149 On May 23, 1981, the Additional District Magistrate (Civil Supplies), Agra under sub section (2)(i) of section 6A of the Act passed interim orders for the sale of the seized wheat as it was subject to speedy and natural decay, at the request of the Senior Marketing Inspector, similar to the one reproduced below: These proceedings under s.6A of the started on the report of SMI Saiyan dated 30.4.1981 (Paper No. 1) whereby it was brought to the notice of this Court that truck nos. . were caught carrying 120 quintals. .of wheat respectively beyond Saiyan border outside the State in contravention of the orders issued by the Government vide telex No. 1061/29 Food 5 dated 31.3.1981 F.I.R. was lodged at P.S. Saiyan in respect of the above contravention. Notice under section 6B of the EC Act was issued to the O.Ps. . who were driving the trucks at the time of search and seizure. Replies were filed by the owners of the wheat contending that the said rules were not part of any Control Order under Section 3 of the EC Act nor they had any legal sanction for want of publication in the Official Gazette. The O.Ps. have pleaded that they were taking their goods in transit through Agra and in fact the movement of wheat so made by them was inter state movement which was not banned by the Central Government or State Government. I heard the learned counsels on behalf of the O.Ps. and the learned PO as well. In these proceedings final orders cannot be passed at this stage as the matter is still under investigation. PO directed to put up progress of investigation within 15 days from now. In the meanwhile I order that the wheat seized by SMI Saiyan be got purchased at the Official Price so that the same does not get damaged. The sale proceeds be got deposited in Government Treasury under proper Head of Account. 1150 This interim order is being passed under sub section (2) (i) of s.6A of the . File be put up after 15 days along with report of prosecuting office regarding progress of investigation. Sd/ N.N. Varma Addl. Collector, Agra 23.5.1981 The seized wheat has been purchased by the State Government on Government account at the procurement price and the sale proceeds credited into the Treasury. The State Government has filed a counter affidavit of the Chief Marketing Officer, Lucknow, in all these cases as also the affidavits of the Senior Marketing Inspectors at Agra controverting the allegations made by the petitioners. It is stated that the source of the power to effect the seizure was not the impugned teleprinter message, but the power of search and seizure conferred on an Enforcement Officer under cl. 6 of the U.P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and under cl.6 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978 (hereinafter called the 1976 Order and 1978 Order respectively), both of which were issued by the State Government, in exercise of the powers under section 3 of the Act, read with Government of India, Ministry of Agriculture (Department of Food) Notification No. G. S.R. 888 dated June 28, 1961, No. GSR 316 (E) dated June 20, 1972, No. GSR 452 (E) dated October 25, 1972, No. GSR 168 (E) dated March 13, 1973 and No. GSR 800 dated June 9, 1978 respectively, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices. The State Government contends that the impugned teleprinter message dated March 31, 1981 was in the nature of an executive instruction issued by the State Government under its undoubted powers under article 162 of the Constitution for the due observance of the provisions of the two Control Orders. It is said that no person can carry on business in foodgrains as a dealer or as a commission agent except under and in accordance with the terms and conditions of a valid licence issued in that behalf under cl. 4 of the 1976 Order. It is also said that no wholesale dealer, commission agent or trader can have in stock more than 250 quintals, 250 quintals and 20 quintals respectively, at any time. It is asserted that the State Govern 1151 ment has the right to set up check posts for the purpose of verification so that there is no contravention of the provisions of the two Control Orders, particularly with a view to ensure that excess quantity of wheat is not transported in violation of the 1978 Order to other districts or other States. The State Government in the counter affidavit of the Chief Marketing Officer, Lucknow, specifically denies the allegations made by the petitioners that the 42 trucks laden with wheat seized at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra were in transit during the course of inter State trade and commerce. With regard to the seizure of the wheat, it is averred in para 13 of the counter affidavit: "The correct fact is that the authority on the bona fide apprehension that the wheat so moved actually was purchased from the State of Uttar Pradesh from nearby places and the same was being moved to other States on the garb of outside wheat. It is submitted that such traders who are exporting wheat alleged to have purchased from places other than the State of Uttar Pradesh and were/are carrying the same to other States, have only to satisfy the authorities concerned of the bona fides of such transactions. However there is no ban on such movement from one State to another. " As regards the check posts, it is submitted that the State Government is committed to provide price support in wheat to farmers at Rs. 130 per quintal. This commitment also involves purchase of wheat directly from the farmers without interference from traders/middlemen, who try to purchase wheat from the farmers at lower prices and sell the same at Government purchase centres with substantial profits. Such transactions are effected in fictitious names. This not only frustrates the procurement policy of the Government but also prejudicially and financially affects the producers ' interests. In para 5 it is accordingly averred: "In order to curb the above tendencies and preventing the activity of traders/middlemen the State Government have provided a simple system of verifying all transactions by traders. 1152 This procedure involves getting all transactions of wheat verified by the Deputy Regional Marketing Officer indicating inter alia the name of the persons to whom the stocks are sold, their licence numbers etc. and quantum of stocks sold, price paid etc. This process will make it simultaneously very difficult for traders to buy at low price from farmers and resell at high prices at the Government purchase centres. " As regards the impugned teleprinter message it was stated that it was issued by the State Government in order to sustain and maintain and maximise the procurement of wheat by introducing a system of verification at the check posts. The State Government contests the right of the petitioners falling in the first category, that is, wholesale dealers of wheat from the Union Territory of Delhi and the States of Punjab and Haryana, to relief under article 32 of the Constitution who question the legality and propriety of the seizures. It is a matter for investigation which is pending before the Additional District Magistrate (Civil Supplies), Agra and, according to it, the question cannot be decided without full investigation into facts. In support of the writ petitions, learned counsel appearing for the petitioners have, in substance, urged three grounds. (1) There was nothing to prevent the State Government from making a law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1) (g) read with article 19(6) of the Constitution, or on the freedom of trade, commerce and intercourse, throughout the territory of India, guaranteed under article 301 of the Constitution, but the restriction must be by "law" or by an "order having the force of law" and not by recourse to the executive authority of the State under article 162 of the Constitution, i.e., by an executive action. (2) The seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without the "authority of law" and in violation of article 300A of the Constitution. The seizure of the wheat being wrongful, the petitioners were entitled to an appropriate writ, direction or order for the return of the seized wheat or the price thereof. (3) The impugned teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected, in truth and 1153 substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section (1) read with sub section (5) of section 3 of the Act; it was nothing but an executive direction. No executive action which operates to the prejudice of a citizen can be taken without the authority of law. It was asserted that the seizures effected were in compliance of the instructions contained in the impugned teleprinter message and not for breach of the two Control Orders and therefore it was nothing but a "colourable exercise" of power. The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government, without any legal sanction since the farmers were not willing to sell their wheat at the procurement price. Learned counsel for the petitioners also challenge the action of the Additional District Magistrate (Civil Supplies) Agra in passing an interim order in terms of sub section (2) (i) of section 6A of the Act for the sale of the seized wheat on Government account and for the sale proceeds to be credited into the treasury in an appropriate Head of Account; it is urged that under sub section (2) (ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction. In reply, learned counsel for the State has repelled all these contentions. It is submitted that the source of power to effect the seizure was not the impugned teleprinter message, but the two Control Orders issued under section 3 of the Act. He asserted that the wheat in question was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various other States. The wheat had in fact been purchased at Agra and was being lifted from the State of Uttar Pradesh and had, therefore, to be seized at the check post at Saiyan and at Agra. He points out that under cl. 3 of the 1976 Order, no person can carry on business as a dealer or commission agent, except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority. According to him, the seized wheat had been purchased at Agra in the course of trade, and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order. It is also pointed out that cl. 4 of the 1978 Order, as amended, provides that no person who is a wholesale dealer, commission agent or retailer shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals at a time. It is further pointed out, cl. 14 of the 1976 Order, and cl. 6 1154 of the 1978 Order confer the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the Government in that behalf, and the expression "enforcement officer" defined in cl. 2 (e) of the former Order and cl. 2(d) of the latter, includes the Chief Marketing Inspector. According to the learned counsel the Government instructions conveyed in the impugned teleprinter message is merely in the nature of an executive instruction for the enforcement of the two Control Orders. In support of the contentions, he also relies on the executive power of the State under article 162 of the Constitution. In the premises, the contention on behalf of the State is that the question whether the seized wheat was liable to be confiscated or not under section 6A of the Act, was a matter pending adjudication before the Additional District Magistrate (Civil Supplies) Agra. That depends on whether or not there was contravention by the petitioners of any of the Order issued under section 3 of the Act and, therefore, cannot be determined without full investigation into the facts. The Inter Zonal Wheat (Movement Control) Order, 1976, issued by the Central Government, in exercise of the powers conferred by section 3 of the Act has been rescinded with effect from April 13, 1977. The result of this is that the whole country constitutes a single zone for free movement of wheat except in such States where an order is issued under section 3 read with section 5 of the Act, placing a ban on export of wheat such as in the State of Rajasthan. Admittedly, the State Government of Uttar Pradesh has not issued any order under section 3 read with section 5 of the Act, placing a ban on export of wheat from the State or any restriction on inter district movement of wheat within the State. The State Government does not contest this position and indeed, the Chief Marketing Officer in his counter affidavit states: "The State of Uttar Pradesh has not banned the movement of wheat outside the State or from one district to another district within the State. It is submitted that such traders who are transporting wheat alleged to be purchased from a place other than the State of Uttar Pradesh and were/are carrying the same to other States other than Uttar Pradesh have only to satisfy the authorities concerned of the bona fides of the transactions. However, there is no ban on such movement from one State to another." 1155 The impugned teleprinter message dated March 31, 1981 runs as follows: "For: Regional Food Control, Agra/Bareilly/Dehradun/Faizabad/Gorakhpur Jhansi/Haldwani/Kanpur/Meerut/Varanasi Lucknow (by Hand) From: Secretary (Food) Lucknow. No. TP 1061/XXIX Food 5 Dated: Lucknow: March 31, 1981. Refer Tel TP 712/XXIX Food 5 5(1)/81 of 9th March 1981 regarding renewal of and issue of new licences to dealers(,) Government committed to provide benefits of support price to producers hence to ensure that maximum quantity of wheat is purchased by agencies (.) Para (.) After careful consideration Government have decided that with effect from first April 1981 till thirtieth June 1981 no repeat no fresh licences are to be issued to any person who wish to deal in wheat, wheat products or both as wholesaler commission agent retailer (.) Para (.) Government have also decided that during April 1981 to June 1981 movement of wheat by traders on private account to outside district shall be regulated only on the endorsement of Deputy Regional Marketing Officer concerned and hitherto this power being exercised by Senior Marketing Inspector shall not repeat not be used by them (.) Para (.) At the same time easy availability of wheat in open markets is to be ensured(.) Keeping all the relevant factors in view endorsement by Dy. R.M.O. should be made judiciously on genuine and bonafide grounds(.) Para(.) Dy. RMO will send daily report to RFC of the cases in which such permission is granted or endorsement made(. ) RFC will compile and send weekly report to Government(.) Permission to be given very sparingly and general impression made should be that they will not gain by doing any trading in wheat(.) Visit Mandis regularly and check quantities lying in traders premises(.) Presence of large stocks with trade means staff 1156 is not during their job properly(. ) Inform all concerned immediately for strict compliance(.) Dated: Lucknow; March 31, 1981 Sd/ M. Subrahmanyam Secretary Food & Civil Supplies Sec. 5 U.P. Secretariat, Lucknow. " There can be no doubt that the aforesaid teleprinter message was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the orders. It may be mentioned that the State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, issued instructions that no fresh licences till June 30, 1981 were to be granted to any person who wished to deal in wheat, wheat products, or both, as well as a wholesale dealer, commission agent or a retailer. It further conveyed the policy decision of the Government that during April 1981 movement of wheat by traders on private account to outside districts shall be regulated only on the endorsement of the Deputy Marketing Officer concerned and not by the Senior Marketing Inspectors as hitherto before. The Government also directed the Regional Food Controllers to ensure easy availability of wheat in open market. As regards the making of endorsement, they were advised that the powers should be exercised with due circumspection. They were also asked to visit the mandis and keep a constant vigil on the stocks lying with the traders. There appears to be nothing unusual on the State Government issuing such executive instructions. Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check posts on the border and place restrictions on inter district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur vs State of Punjab, Mukherjea, C.J., dealt with the scope of articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any 1157 definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: "Ordinarily the executive power con notes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. In Ram Jawaya Kapoor 's case (supra) it was contended that the executive power of the State did not extend to the carrying on of trade of printing, publishing and selling of text books for schools unless such trade was authorised by law. In repelling the contention, Mukherjea, C.J. speaking for the Court, observed : Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both of the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. The learned Chief Justice then went on to observe : The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights 1158 guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and in operative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed. In Naraindas Indurkhya vs State of Madhya Pradesh & Ors Bhagwati, J., speaking for the Court, reiterated the principles laid down by Mukherjea, C.J. in Ram Jawaya Kapur 's case (supra) and held that the State Government could act in exercise of the executive power of the State under article 162 of the Constitution in relation to any matter with respect to which the State Legislature has power to make laws even if there was no legislation to support such executive action. There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads: 33. Trade and commerce in, and the production, supply and distribution of, (b) foodstuffs, including edible oilseeds and oils. The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33 List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder. The State legislature, therefore, could still make a law on the subject regulating trade and commerce in, and the production, supply and distribution of 'foodstuffs ' and the only question that would arise is one of repugnancy dealt with in article 254 of the Constitution. The executive power of the State being co extensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject 'foodstuffs ', 1159 trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in Proviso to article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. This leads us to another aspect of the problem of considerable difficulty and importance. The subject 'search and seizure ', is a field which has not come before the court with considerable frequency, but this is a hard fact of life which the citizen does encounter very often. The executive power of 'search and seizure ' is a necessary concomitant of a welfare State. It tends to promote the well being of the nation. Many questions arising in the field of search and seizure are factual in nature. They involve varying degrees of difference among the infinitely diverse facts. Every factual variation presents not only a new problem, but also a new constitutional question. It is a limitless area in which different issues may arise with vast variations of facts which are involved in each individual case. This is, indeed, a peculiar field in which the decisions of courts do not help in clarifying the law. The decisions in the field are of little precedental value because, the more the cases that are decided, the more new issues arise, through possible factual variations. The check posts and barriers on the borders of the State of Uttar Pradesh are set up under section 28 of the U.P. Sales Tax Act, 1948 and are designed and meant to prevent evasion of sales tax and other dues. The constitutional validity of section 28 and its cognate provisions, sections 28A to 28C has, rightly, if we may say so, not been challenged before us. From the point of view either of Entry 54, List II, or of article 301 of the Constitution, there is no question of any lack of competence in the State legislature to set up the checkposts and barriers on the State 's borders. These provisions, read with the requirements of r. 83(4) of the U.P. Sales Tax Rules, 1948 require that the owner, driver or any other person in charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified under sub section (1) of section 28A, carry with him, a declaration in Form XXXI, a certificate in Form XXXII, a transit pass in Form XXXIV in duplicate, cash memo, bill of sale or challan and a trip sheet in triplicate. The factual existence of these check 1160 posts or barriers on the State 's borders is not denied, nor their legality challenged. It is not suggested that the setting up of these check posts is a restriction on the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution, or is such as directly and immediately restricts or impedes the free flow or movement of goods. It is also not suggested that these regulatory measures in setting up the check posts on the State 's borders are such as impede freedom of trade, commerce and intercourse. Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in such inter State trade or commerce are equally subject to all regulatory measures. There is no reason why the check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, cannot be utilised as a machinery for due observance of the laws, e.g. for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States. The instructions conveyed by the State Government by the impugned teleprinter message dated March 31, 1981, were a direct sequel to the Centre 's directives contained in its earlier teleprinter message. It was intended and meant to achieve three main objectives, namely, (1) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the procurement of wheat; (2) to prevent hoarding and blackmarketing; and (3) to provide for equitable distribution and availability of wheat at fair prices. These directions were obviously meant to subserve the object of the legislation and were in public interest. These cases were argued with much learning and resource particularly with reference to the rule of law and the consequent limitations on the executive power of the State under article 162 to 'trench ' upon the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 of the Constitution. It necessarily involves a claim by the State that the measures taken by the State Government by the impugned teleprinter message were nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another within the State and therefore were not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19 (1)(g) or on the freedom of trade, commerce and intercourse under article 301. 1161 The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In State of Madhya Pradesh vs Thakur Bharat Singh, the Court repelled the contention that by virtue of article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed: "Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. " The same principle was reiterated by the Court in Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, and Smt. Indira Nehru Gandhi vs Shri Raj Narain. There can be no doubt that the , is a 'law ' within the meaning of article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by article 19(1)(g) and article 301 of the Constitution. The object of the Act is to provide, in the interests of the general public, for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities. To appreciate the points involved, it is necessary to set out the material statutory provisions. Sub section (1) of section 3 of the Act provides as follows: "3(1). If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 1162 Sub section (2) thereof provides that without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide for any of the matters enumerated therein. Sub section (5) provides that any order made under this section shall in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette. By virtue of the delegation of powers under section 5 of the Act the State Government in relation to such matters and subject to such conditions as may be specified, may exercise the powers of the Central Government under section 3 Clause (j) of sub section (2) of 3 provides that the Central Government or the State Government, as the case may be, may by order provide: "For any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyance and animals, and the seizure by a person authorised to make such entry, search or examination. ' Sub sections (1) and (2) of section 6A of the Act, insofar as material, provide as follows: "6A(1). Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report of seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of (a) the essential commodity so seized; 6A(2). Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, be may (i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or 1163 (ii) where no such price is fixed, order the same to be sold by public auction: Provided that in case of foodgrains, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such foodgrains to the public." Learned counsel for the State Government, in all fairness, does not assert that the impugned teleprinter message having regard to the requirements of sub section (5), has the effect of a notified Order under section 3 of the Act placing a ban on export of wheat from the State or imposing a restriction on inter district movement of wheat. It is submitted that it only conveyed the instructions of the State Government requiring the Regional Food Controllers to be more vigilant to secure due observance of the laws. The question still remain whether the instructions conveyed by the teleprinter message had the force of law. It is therefore to be considered whether the instructions conveyed by the State Government by the impugned teleprinter message were relatable to the two Control Orders and therefore could be considered to be 'law ' or an order having the force of law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1)(g) read with article 19(6) of the Constitution or on the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 o the Constitution. It is further to be considered whether the seizure of wheat in transit was with authority of law. It is submitted that although the impugned teleprinter message dated March 31, 1981 was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the two Control Orders, it had the force of law. It is pointed out that under licence conditions Nos. 11, 12 and 13 of the licence issued in Form B under cl. 4 of the 1976 Order, a dealer is required to comply with any direction that may be given by the State Government in regard to purchase, sale or storage for sale of foodgrains, to furnish such information relating to his business as may be demanded of him and to carry out such instructions as may, from time to time, be given, 1164 by the State Government or the licensing authority, and to give all facilities at all reasonable times, to the enforcement officer or the licencing authority or any officer authorised by him or the State Government for the inspection of the stocks etc. It is further pointed out that the State Government of Uttar Pradesh has by Notification No. P XXIX Food 5 5(42)/80 dated April 21, 1981, in exercise of the powers conferred by section 3 read with section 5 of the Act, with the prior concurrence of the Central Government, issued the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) (First Amendment) Order, 1981. By cl. 2 thereof, a new cl. 4 has been substituted in the 1978 Order by which the stock limit of dealers in foodgrains has been re fixed, as it was of the opinion that it was necessary and expedient so to do for securing equitable distribution and availability of wheat at fair prices. The new cl. 4 provides that no wholesale dealer, commission agent or retailer, shall have in stock, wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time. The re fixation of the stock limit of a wholesale dealers at 250 quintals, at any time, is to ensure that wholesale dealers in the State of Uttar Pradesh do not try to corner stocks of wheat for purposes of speculation. The submission is that the State Government without placing any restriction on movement of wheat from the State of Uttar Pradesh to various other States, has virtually frozen the excess stock of wheat lying with wholesale dealers of foodgrains in the State. There is, in our opinion, considerable force in these submissions. The real question at issue is whether or not the seizure of wheat was with the authority of law. The fundamental right to carry on trade or business guaranteed under article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights. The Court must balance the individual 's rights of freedom of trade under article 19(1)(g) and the freedom of inter State trade and commerce under article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights. 1165 Under article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under cl. The principles underlying in cls. (5) and (6) of article 19 are now well settled and ingrained in our legal system in a number of decisions of this Court, and it is not necessary to burden this judgment with citations. The expression 'reasonable restriction ' signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. 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 in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by cl. (6) of article 19, it must be held to be wanting in that quality. The nature of the right alleged to have been infringed is that wholesale dealers in foodgrains from the State of Uttar Pradesh or elsewhere are prevented from moving their stock of wheat to various other States or from one district to another without the transaction being verified and duly endorsed by the Deputy Marketing Officer or the Senior Marketing Officer concerned. The other restriction on the enjoyment of their right placed by the impugned teleprinter message is that there should be physical verification at the checkposts on the State 's borders. These steps were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State. The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation. It cannot be said that they do not contain the quality of reasonableness or were not in the interests of the general public. In judging the validity of these restrictions, the Court has to strike a proper balance between the freedom guaranteed under article 19(1)(g) and the social control permitted by article 19(6). If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal. This is equally true of article 301. article 301 imposes a general limitation on all legislative 1166 power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free. Having placed a general limitation on the legislative powers of Parliament and the State Legislatures, article 302 relaxes that restriction in favour of Parliament by providing that authority may, by law, impose such restrictions on the freedom of trade, commerce and intercourse between one State and another and within any part of the territory of India in the public interest. Likewise, article 304(b) provides that notwithstanding anything in article 301 or article 303, a legislature of a State may, by law, impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest, provided that no Bill or amendment for the purpose of cl. (b) shall be introduced or moved in the legislature of a State without the previous sanction of the President. Although article 301 guarantees that trade, commerce and intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public. The word 'free ' in article 301 does not mean freedom from laws or from regulations. article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers. It declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation. One of the means to achieve this object is to guarantee to every citizen the freedom of movement and residence throughout the country. That is achieved by article 19(1)(d) and (e). No less important is the freedom of movement or passage of commodities from one part of the country to another. The progress of the country as a whole also requires free flow of commerce and intercourse as between different parts, without any barrier. This freedom of trade, commerce and intercourse throughout the country without any 'State barriers ' is not confined to inter State trade but also includes intra State trade as well. In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between one State and another, but between any two points within the territory of India whether any State border has to be crossed or not. It is now well settled that the regulatory measures or measures imposing compensatory taxes do not come within the purview of the 1167 restrictions contemplated by article 301. The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse. It cannot be said that the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are a 'restriction ' on the freedom of trade, commerce and intercourse within the country, i.e, across the State or from one part of the State to another. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are construed to be a 'restriction ' on the inter State or intra State trade, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature. Nor can it be said that such restrictions do not satisfy the test of reasonableness. The question whether or not the seizure of the wheat was for contravention of any order issued under section 3 of the Act is pending investigation before the Additional District Magistrate (Civil Supplies), Agra. For the establishment of their rights the petitioners have still to establish that the wheat in question was bought by them in open market in Delhi and elsewhere and was being merely transported through the State of Uttar Pradesh in the course of inter State trade and commerce. If that be so, then there was no contravention of any order issued by the Central Government under section 3 or by the State Government under section 3 read with section 5 of the Act. If, on the contrary, the wheat had been purchased by them at Agra or nearby places within the State of Uttar Pradesh, the question would arise whether such purchase, storage or sale of wheat was in contravention of any of the two Control Orders. In case there was such contravention of any of the provisions of the two Control Orders, then there was undoubtedly the power of search and seizure. The case of the State Government before us was that the source of power to effect the seizure was the two Control Orders. It was asserted that the wheat was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi to various other States, but had, in fact, been purchased at Agra and was being lifted from the State of Uttar Pradesh and had therefore to be seized at the check post at Saiyan and at Agra. Under cl. 3 of 1976 Order, no person can carry on business as a 1168 dealer or commission agent except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority. The term 'dealer ' is defined in section 2(c) of the Order to mean a person engaged in the business of purchase, sale or storage for sale of foodgrains. According to the State, the seized wheat had been purchased at Agra in the course of trade and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order. 14 thereof confers the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the State Government in that behalf. The expression 'enforcement officer ' is defined in cl. 2(e) of that Order and it includes the Chief Marketing Officer and in that capacity the Chief Marketing Officer, having reason to believe that contravention of the provisions of the Order had been, was being, or was about to be committed, had the power to seize the trucks at the check post at Saiyan and effect the seizure of the trucks laden with wheat and bring them to the purchase point at Agra. Furthermore, under cl. 4 of the 1978 Order, as amended, no person who is a wholesale dealer, commission agent or a retailer, shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals respectively at a time. 6 confers the power of search and seizure on an enforcement officer which term as defined in cl. 2(d) likewise includes the Chief Marketing Inspector, Under cl. 6(d), the Chief Marketing Inspector, as an enforcement officer, had the power to seize any article in respect of which he had reason to believe that a contravention of the Order had been, was being, or was about to be committed. The fixation of the maximum limits of stocks of wheat at 250 quintals 250 quintals and 20 quintals respectively, which a wholesale dealer, commission agent or a retailer may hold, at any one time, has necessarily the effect of freezing the excess stock of wheat lying with such dealer. This also results in preventing the movement of such excess stock of wheat from the State of Uttar Pradesh to various other States or from one district to another. The excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their 'unlicensed stock '. If really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, commission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of cl. 4 of the 1978 Order. The question whether the seizure was for any contravention of any Order issued under 1169 section 3 of the Act has to be determined by the Additional District Magistrate (Civil Supplies), Agra, on the evidence adduced by the parties before him. The facts being controverted, the petitioners have no right to relief under article 32 of the Constitution. Each of the petitioners has filed a sheaf of documents showing that the wheat had been purchased in the open market in Delhi and elsewhere, that the trucks laden with their wheat were accompanied by the relevant bills, goods receipts, inter State transit passes etc., that the trucks in question were allowed to cross the check posts at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh. but were seized either at the check posts at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra, while they were in transit through the State of Uttar Pradesh. It was also asserted that all the documents were seized and taken away by the Senior Marketing Inspector, and that he had given an acknowledgment of the same. Learned counsel appearing for the State vehemently contends that these documents were not shown to the authorities concerned and it is for the petitioners to prove these documents before the Additional District Magistrate (Civil Supplies), Agra, in support of their claim We cannot act on the documents because the transactions are still to be proved. It is asserted on behalf of the State Government that such documents could always be brought into existence, particularly when none of the transactions were effected through a Bank. This Court cannot obviously pronounce upon the genuineness of the transactions or record any finding on the basis of the documents when the facts are in dispute. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. article 300A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to article 300A. The word 'law ' in the context of article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. The decisions in Wazir Chand vs The State of Himachal 1170 Pradesh and Bishan Das and others vs The State of Punjab and others are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand 's case (supra), the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under sections 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under article 31(1). This view was reaffirmed in Bishan Das 's case (supra). The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property. It is urged that the seizure of wheat was not with a view to extinction of the rights of the petitioners, but the property in the seized wheat was theirs. No doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act. It is not necessary for us to deal with the question whether an illegal seizure amounts to 'deprivation ' of property within the meaning of article 300A for purposes of this case, as the State Government does not dispute the right of the petitioners to the sale proceeds. It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act. If the facts were not in controversy and if the petitioners were also able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, 1171 to the payment of price thereof. The State contests the right of the Court to investigate into the facts, particularly when the matter is a fact in issue in the aforesaid proceedings before the Additional District Magistrate (Civil Supplies), Agra. Normally, it is not the function of this Court to investigate into facts in proceedings under article 32 of the Constitution when they are controverted with a view to discerning the truth. The matter must, in a situation like this, be left to the fact finding body. For the establishment of their right to relief under article 32, the petitioners must, in our opinion, establish the necessary fact before the said Additional District Magistrate in the proceedings under section 6A of the Act. If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure. The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation. Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act. Turning to the petitions under article 32 of the Constitution by wholesale dealers of foodgrains from the State of Uttar Pradesh, learned counsel appearing for these petitioners challenged the impugned teleprinter message dated March 31, 1981, and the Notification No. P. XXIX Food 5 5(42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, by which cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, particularly on three grounds, namely, (1) the impugned notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trade guaranteed under article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of article 14 of the Constitution; and (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions 1172 on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of their fundamental right under article 19(1)(g) read with article 301 of the Constitution. The first and second contentions may conveniently be dealt with together. In order to appreciate these contentions, it is necessary to state a few facts: During the year 1979 80, the country was victim to a very serious drought which affected with Kharif as well as Rabi crops. The Government of India, therefore, fixed a target of 9.5 million tonnes of wheat to be purchased in the summer months of 1981 for the national buffer stock. It fixed the procurement price at Rs. 130 per quintal as against the support price of Rs. 127 per quintal recommended by the Agricultural Price Commission to provide a better incentive to the farmers. The procurement was carried out as a measure of price support without any restriction on movement from one State to another. However, some of the States were implementing local laws with regard to ensuring that the private trade adhered to the stock limit restrictions on them and did not try to corner stocks for speculation purposes. The original target fixed for procurement was 9.5 million tonnes but at the end of June, only 6.5 million tonnes had been purchased, leaving a deficit of 3 million tonnes. The result was that the Government of India was thus forced to buy 1.5 million tonnes of wheat in the world market. The Government 's procurement drive was mainly frustrated by wholesale dealers of foodgrains cornering the stocks of wheat by paying a price higher than the procurement price to the farmers. The imperatives of the situation demanded that the speculative tendencies of the trade were curbed by strictly enforcing the stock limits of traders. Under original cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, a wholesale dealer, commission agent or a retailer could have in stock wheat not more than 750 quintals, 750 quintals and 100 quintals respectively, at any time. In view of the worsening situation in the national buffer stock and in the light of the experience gained during the past few years, the State Government was of the opinion that it was necessary and expedient to re fix the stock limits of such dealers. This was expected to maximise procurement of wheat to meet the requirement of public distribution, as well as, the buffer stock. 1173 It cannot be asserted that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or is of an excessive nature. The fixation of the stock limit of wheat to be possessed by wholesale dealers, at any time, at 250 quintals is an important step taken by the State Government to obviate hoarding and black marketing in wheat which is in short supply. It is hardly necessary to emphasise the extent and urgency of the evil sought to be remedied thereby. Perhaps fixation of the minimum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is too low, but the restriction so imposed cannot be treated to be arbitrary or of an excessive nature, beyond what is required in the national interest. It is a matter of common knowledge that wholesale dealers of foodgrains mainly operate in large cities and towns and have the means and capacity to manipulate the market by withholding stocks of a commodity. There was need to check such speculative tendencies in the trade. It was therefore felt expedient to re fix the stock limit of wheat for wholesale dealers at 250 quintals at a time, as in the case of a commission agent. The underlying idea is that the wholesale dealers should be allowed to continue their trading activities within reasonable limits. The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat. In Krishan Lal Praveen Kumar & Ors. etc. vs The State of Rajasthan, this Court has interpreted the words 'at any time ' as meaning 'at any given time '. This means that a wholesale dealer should not have in stock more than 250 quintals at a time. But there is nothing to prevent a wholesale dealer from entering into a series of transactions during the course of the day. This Court in Krishan Lal Parveen Kumar 's case (supra) and Suraj Mal Kailash Chand & Ors. vs Union of India & Anr., has upheld the validity of a similar notification dated March 23, 1981, issued by the State Government of Rajasthan in exercise of the powers conferred by cl. 18 of the Rajasthan Trade Articles (Licensing and Control) Order, 1980, fixing the maximum limit of wheat to be possessed by a dealer at any one time at 200 quintals, on the ground that it is a reasonable restriction by the State Government within the meaning of article 19(6) of the Constitution. In view of these decisions, it is difficult to conceive as to how the contention based on article 19(1)(g) of the Constitution can survive. 1174 True it is, if the governmental action is arbitrary or there is no rational nexus to the object sought to be achieved it is liable to be struck down as violative of article 14 of the Constitution. The State Government has adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities. To obviate hoarding and blackmarketing in foodstuffs, it has promulgated the Order. It introduces a system of checks and balances to achieve the object of the legislation, i.e., to ensure equitable distribution and availability of essential commodities at fair prices. It cannot be said that looking to the prevailing conditions, the imposition of such restrictions does not satisfy the test of reasonableness. Nor can it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, violative of article 14. On the contrary, the limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is a reasonable restriction within the meaning of article 19(6) of the Constitution. One further point requires to be noticed. The contention that the action taken by the State Government in issuing the impugned teleprinter message amounts to an 'intrusion ' on the fundamental right to carry on trade or business under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301 of the Constitution appears to be wholly misconceived. As already stated the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of article 19(1)(g) or article 301 of the Constitution. The State Government in its return has stated that there is no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one 1175 district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned. The petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, i.e., they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals at a time. In the result, the writ petitions must fail and are dismissed. The stay orders passed by the Court, from time to time, stand vacated. Formal orders for vacating stay granted in those matters need not be issued. There shall be no order as to costs. S.R. Petitions dismissed. [/INST]Under an agreement the Government placed certain lands belonging to it at the disposal of the Improvement Trust for the construction of a market. The Trust constructed the market with funds advanced by the Government by way of loan at interest. Under the agreement the Trust had to pay a certain fixed sum by way of revenue on the property; the income from the market had to be applied to the payment of interest on the money advanced by Government, and to the payment of expenses for the management of the market and the surplus had to be placed at the disposal of, Government to be spent according to its directions. The lessee of the market from the Trust filed a suit for a declaration that it was protected from ejectment by the provisions of the Delhi and Ajmer Rent Control Act. It was contended by the lessee that the market was the property of the Trust to which the Act applied. It was further contended by the lessee relying upon the language of section 54A(2) of the U. P. Town Improvement Act, that the market vested in the Trust for otherwise it could not upon transfer by the Trust vest in the Chief Commissioner as provided by this section. Held, that upon a proper construction of the terms of the agreement between the Trust and the Government, the Trust was in the position of a statutory agent of the Government and that the market was Government premises to which the provisions of the Delhi and Ajmer Rent Control Act were not applicable by virtue Of section 3(a).thereof, and consequently the lessee was liable to ejectment upon termination. of the period of the lease. The word 'vest ' has not got a fixed connotation, meaning in all cases that the property is owned by the person or authority in whom it vests. It may vest in title, or it may vest in possession or it may vest in a limited sense. </s>

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

<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) Nos. 4062 4066 of 1978. From the Orders dated 11 1 1978 of the Madhya Pradesh High Court in M.P. Nos. 390, 391, 393, 395 and 397/75. AND SPECIAL LEAVE PETITION (CIVIL) NO. 4069 of 1978. From the Order dated 5 1 78 of the Madhya Pradesh High Court in M.P. No. 580/75. section K. Gambhir for the Petitioners in all the section L. Ps. The Order of the Court was delivered by DESAI, J. Mr. Gambhir, learned counsel for the petitioner informed us that a number of petitions are pending in the High Court of Madhya Pradesh in which the question raised in the present group of petitions is involved and as we are not inclined to grant leave, we would rather indicate our reasons by a speaking order. At the commencement of the British Raj both in the Raj ruled area of India and the princely States institutions of higher education were set up and manned under Government aegis. As the demand for institutions of higher education increased with the proliferation of State activity and need of white collar employees, these institutions speedily multiplied and they were generally set up and manned by educational societies or local authorities. The turmoil since independence and especially in the last one and a half decade in the world of academicians led to the reversal of the policy of Government directly setting up educational institutions and 632 in fact whatever they had set up, being slowly handed over to educational societies and/or local authorities, and it has turned a full circle. The grievance of the teachers in such school manifested in the demand for taking over of such institutions by the State and all over the country the transition has begun. In Madhya Pradesh the State regulated the functioning and standards of academic instruction in Higher Secondary Schools under Madhya Pradesh Madhyamik Shiksha Adhiniyem, 1965. This supervisory role of the State hardly improved the situation with the result that tensions increased and the demand became louder that these institutions should be taken over by the Government for its direct management and the teachers should be accorded the status of Government servants. The State Government responded to this demand by enacting the Madhya Pradesh Local Authorities School Teachers (Absorption in Government Service) Act, 1963 ( 'the Act ' for short). The Act provided for absorbing teachers serving in Middle Schools and Primary Schools managed by local authorities in Government service. The relevant rule for absorption is rule 3 of the Rules enacted under the Act. In these petitions we are concerned with rule 3(b) which reads as under: "3 (b). For absorption on the post of Head Master/Principal of a High/Higher Secondary School, the person concerned should possess the post graduate degree and should have worked on the post for a minimum period of 7 years in the same institution and should have 10 years teaching experience in any recognised institution of Madhya Pradesh". While implementing the aforementioned rule there arose a cleavage on the interpretation of the rule, the concerned teacher contending that what is relevant is that working on the post for a minimum period of 7 years would for the purpose of computation of 7 years include service even as incharge Head Master/Principal or officiating service in the post whereas the State contended that the teacher claiming to be absorbed as Head Master/Principal should have worked as a confirmed Head Master/Principal in a substantive post for the full period of 7 years. The State in accordance with its interpretation declined absorption to a number of Head Masters/Principals which led to the filing of a number of writ petitions in the Madhya Pradesh High Court. It appears that this question was first examined by the Madhya Pradesh High Court in Satyendra Prasanna Singh Yadav vs State of 633 Madhya Pradesh & 3 Ors.(1), in which the High Court took the view that the period during which a Head Master/Principal worked as incharge Principal ought to be taken into account for computing the period of 7 years. Following this decision the present group of petitions were allowed by a Division Bench of the Madhya Pradesh High Court and an application for leave to appeal to this Court under Article 133 of the Constitution was rejected. Hence the State of Madhya Pradesh has filed this group of petitions for special leave to appeal. It may be mentioned that the earlier decision which the High Court seeks to follow appears to have been accepted by the State of Madhya Pradesh. Mr. Gambhir, learned counsel for the petitioner urged that the expression: "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in section B. Patwardhan & Ors. etc. vs State of Maharashtra & Ors. ,(2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post ? A 634 confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post. Now, every High School or Higher Secondary School must of necessity have the post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal. If that would mean that there was always a substantive post of Head Master/Principal it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and some one may be appointed in an officiating capacity or may be directed to hold charge but none the less such holder of the post will have to perform duties and discharge functions attached to the post. Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held. Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in section B. Patwardhan 's case, (supra) it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post. Our attention was drawn to State of Assam & Ors. vs Shri Kanak Chandra Dutta(1). We fail to see how this decision can assist in deciding the question one way or the other. The question that came for consideration of this Court was: whether the holder of a post designated as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties and functions attached to the post of Moujadar, this Court held that a post can exist apart from the holder of the post and that Moujadar is the holder of a civil post under the State and that it makes no difference that he is remunerated by way of a commission on the collection of Government dues and does not draw a salary. In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked in the post of Head Master/Principal. Perhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose 635 of rule 3(b). The controversy that surfaced in Ramrattan vs State of Madhya Pradesh & Ors.,(1) and the subsequent decision in State of Madhya Pradesh vs Gokul Prasad,(2) which led to a reference to a Full Bench in Girja Shankar vs S.D.O., Harda & Ors.,(3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us. The language here indicates emphasis on work being done while on the post irrespective of the capacity. The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 years. It thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held. The High Court was, therefore, right in holding that the period during which the petitioners (respondents in these petitions) worked as incharge Head Masters/Principals ought to be taken into account by the State Government for computing the period of 7 years. These petitions are accordingly dismissed. V.D.K. Petitions dismissed. [/INST]Dismissing the appeal, ^ HELD: Section 499(1) of the Cr. P.C., which contemplated the execution of a bond by the accused and by the sureties, did not imply that a single bond was to be executed by both the accused and the sureties, signed by the accused and counter signed by the sureties. An undertaking of the surety in Form 42, Schedule V to secure the attendance of the accused was quite independent of the undertaking given by the accused to appear before the court whenever called upon, even if both the undertakings of the surety and the accused happened to be executed in the same document for the sake of convenience. Each under taking being distinct can be separately enforced. [450 C, 451 B D] The fact that an accused would not be released on bail without his executing a personal bond does not mean that if a person is released by mistake without his executing a personal bond, the sureties are absolved from securing the attendance of the accused and his appearance before the court. The sureties ' responsibility arises from the exeeution of the surety bond and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. [451 E F] Abdul Aziz & Anr. vs Emperor, AIR 1946 All. 116; Mewa Ram & Anr. vs State, AIR 1953 All. 481; approved. Bakaru Singh vs State of U.P., ; ; distinguished. Brahma Nand Misra vs Emperor, AIR 1939 All. 682; Sailesh Chandra Chakraborty vs The State, AIR 1963 Cal. 309; over ruled. </s>

<s>[INST] Summarize the judgementAppeal No. 102 of 1964. Appeal by special leave from the judgment and order dated July 30, 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 402 D of 1962. D. Goburdhan for the appellants. section G. Patwardhan and B. R. G. K. Achar for the respondents. The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of section 9 (1) of the Evacuee Interest (Separation) Act, No. LXIV of 1951 (hereinafter referred to as the Act). The question arises in this way. The appellants were mortgagees of certain properties, including a house, on the basis of a, mortgage bond dated July 19. 1928. The consideration of the bond was Rs. 25,000 and interest was provided at nine per cent per annum compoundable annually. Out of the properties covered by the bond, one of the properties was sold to Bibi Chand Tara on October 23, 1937 subject to the earlier mortgage of 1928. In October 1949, Bibi Chand Tara was declared an evacuee. In 1939 the appellant filed a suit against the orignal mortgagors and others including Bibi Chand Tara for the amount due under the mortgage. A preliminary decree was passed in their favour in March 1942 and the final decree followed in April 1945. It appears that certain sums were received by the appellants before they had filed the suit. Certain other sums were also received after the preliminary and final decrees. It further appears that certain Zamindari properties which were also included in the mortgage had been sold after the final decree and the money appropriated towards the decree. Another house which was also included in the mortgage bond was sold later and the sale money was again appropriated towards the decree. Eventually the appellants put the decree in execution in November 1952 against the house in dispute for a sum of Rs. 60,000 and odd,. There was a sale in that execution proceeding, but it was set aside on the application of the Assistant Custodian, Patna. Thereafter the appellants made an application before the Assistant Custodian for the recovery of the mortgage money claimed by them. and in this application their claim was for Rs. 40.000 and. This application was also dismissed as it was filed before a wrong authority. Eventually the. appellants filed a claim for the same. amount before the Competent Officer under the Act. inasmuch As the property in dispute was composite property in Which, the evacuee had mortgagor 's interest while the appellants who are non evacuee 's had mortgagees ' interest which had ripened into a decree for sale. This application was resisted by the Custodian on a number of grounds. In the present appeal we are only. 57 concerned with one ground based on section 9 (1) of the Act. , The contention of the Custodian was that the appellants were not entitled to any interest higher than five per cent per annum simple from the date of the mortgage under section 9 (1) of the Act. Therefore the Custodian claimed that the entire transaction should be reopened from the date of the mortgage and the amounts already received by the appellants should be taken into account after allowing interest at five per cent per annum simple to them and if, more interest had been paid that should be credited towards the principal and after such accounting the sum if any due on the mortgage could be claimed by the appellants. The Competent Officer held that though the provisions of section 9 (1) were retrospective to a certain extent they could not be stretched to mean that if a mortgagee had already realised interest at a rate exceeding five per centum Per annum simple even before the Act came into force the excess would go to liquidate the principal amount proportionately. He therefore held that in the absence of special provision to the effect that past accounts should be reopened, the amount received as interest prior to the decree could not be taken into account. The Competent Officer further held that the principal money could not be reduced on account of any excess realisation of interest when such excess was realised before the Act came into force. He therefore ordered that (1) the amount of interest exceeding five per cent per annum before the institution of the suit would not reduce the principal amount, (2) the appellants would be entitled to simple interest at six Per cent per annum, i.e. the rate at which interest was decreed in their favour in the mortgage suit from the date of the institution of the suit till November 26, 1952 on the principal sum only, (3) the appellants would be entitled to interest at five per cent per annum simple from November 27, 1952, and (4) the appellants would also be entitled to costs of the suit decreed in their favour. The actual amount due was ordered to be worked out on these principles. The Custodian took the matter in appeal to the Appellate Officer. The Appellate Officer held that on the words of section 9 (1) the entire account must be made afresh on the basis of interest being ,,allowed at five per cent per annum simple on the principal amount from . ' the date; of the. mortgage and that any sums received over above this would go to reduce the principal. He therefore allowed the appeal and set aside the order of the Competent Officer and ordered account to be taken in the manner indicated by him. The appellants,then applied to the punjab High Court by a writ petition, which was dismissed in limine. Their application for a leave to Appeal to this Court was also dismissed. Thereafter they ,obtained special leave from this: Court, and, that is how the matter has come before us L/S5SCI 6 58 The Act deals with separation of the interest of an evacuee from the interest of a non evacuee in composite properties. Under section 2 (d) "composite property" inter alia means any property which, or any property in which an interest, has been declared to be evacuee property and in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee. Under section 2 (h), "principal money" in relation to a mortgage deed executed by an evacuee inter alia means in the case of mort gage deed which has not been executed by way of renewal of a prior mortgage deed, the sum of money advanced by way of loan at the time of the execution of the mortgage deed. Under section 3 the Act and the rules and orders made thereunder 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, save as otherwise expressly provided in the Act. Sections 4 to 8 provide for machinery for separation of the claims of evacuees and non evacuees in composite properties. Then we come to section 9(1) which is in these terms: "(1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of subsection (2) be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced. " It is unnecessary to refer to section 9(2) for we are not concerned with that provision in the present appeal. We may however refer to section 8(3) which is material and in these terms: "(3) If there is any dispute as to whether a liability is a mortgage debt or not or whether any claim submitted under section 7 exists, the Competent Officer shall decide such dispute : Provided that a decree of a civil court '(other than an ex parte decree passed after the 14th day of August, 1947) shall, subject to the provisions of sections 9 and 10, be binding on the Competent Officer in respect of any matter which has been finally decided by such decree , and where any matter was decided by an ex parte decree passed by a civil court after the 14th day of August, 1947, the Competent Officer may decide such matter afresh and on such decision being made the ex parte decree shall be deemed to have no effect." 59 Section 10 provides for separation of the interest of evacuee from the interest of claimants in composite properties and lays down how that will be done. Clause (b) specially provides for the manner in which the claim of a mortgagee will be dealt with by the Competent Officer, but we are not concerned with the details of that provision. It will be seen from a consideration of these provisions that the Competent Officer is bound by the decree of a civil court except an ex parte decree passed after August 14, 1947 in respect of a mortgage subject to the provisions of sections 9 and 10. Section 10 indicates how the Competent Officer is to separate the interest of an evacuee from the interest of a non evacuee, even in the case of a decree except an ex parte decree passed after August 14, 1947. Section 9(1) provides for interest at five per cent per annum simple, and the decree in a mortgage suit except an ex parte decree passed after August 14, 1947 which is otherwise binding on the Competent Officer is subject to the provisions of section 9(1) as to interest. It will also be noticed that there is no provision in the Act which specifically provides for reopening of transactions relating to mortgage and taking accounts from the date of the mortgage on the basis of interest provided in section 9(1) and for crediting anything paid as interest over and above the rate provided in section 9(1) to wards principal. Prima facie therefore in the absence of such a provision it cannot be assumed that the legislature intended that a mortgage transaction should be reopened from the date of the mortgage and accounts taken afresh and anything paid in excess of five per cent per annum simple interest applied towards reduction of the principal amount. We have therefore to see whether there is anything in the words of section 9(1) which leads to this result in the absence of a specific provision to that effect in the Act. Section 9(1) begins with a non obstante clause and lays down that it will apply notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, no mortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are "no mortgaged property shall be liable". These words indicate that the Competent Officer when he comes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple. , The liability which the Competent Officer has to determine is with respect to the amount still due to the non evacuee. Further as the non obstante clause includes any decree of a civil court and as such decree is subject to section 9(1) in view of the proviso to section 8(3), the Competent Officer would not be bound by the calculation of interest made by the civil court and would have to determine the 60 liability still due on the mortgage himself on the basis of simple interest at the rate of five per cent per annum on the principal sum advanced. Any calculation made by the civil court in arriving at the sum decreed by it on the basis of interest at more than five per cent per annum so far as the liability still due is concerned would not be binding on the Competent Officer and he will have to make his own calculations on the basis of simple interest at the rate of five per cent per annum. Similarly in a case where there is no decree and there is still some liability on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. But section 9(1) clearly shows that it applies only where the liability is still due and there is nothing in the words of section 9(1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as payment towards reduction of the principal amount Section 9(1) in our opinion only deals with liability still due and does not contemplate that any payments made already under the contract as interest should be taken partly towards interest and partly towards principal if they are above five per cent per annum simple interest. As section 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of section 9(1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so, the words of section 9(1) do not give him power to reopen the accounts and what ever has been paid towards interest, if it is not in excess of the contractual rate of interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the prin cipal amount advanced. We may illustrate this by an example, 61 Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the contractual rate but nothing has been paid thereafter. in such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property or what is still due. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mort gage bond except an ex parte decree passed after August 14, 1947. In such a case also the Competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to section 9(1), the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced. the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read section 9(1), we find no provision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount. Section 9(1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the Competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of section 9(1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of section 9(1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e. December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree i.e. April 25. 62 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to section 8 (3), to section 9 (1). Further from the date of the final decree also the appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the ' rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under the mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under section 10(b) or (c). We therefore allow the appeal. The writ petition is allowed and the order of the Appellate Officer is set aside and the order of the Competent Officer varied in the manner indicated above. The appellants will get their costs from the Custodian Evacuee Property. Appeal allowed. [/INST]Orders of reassessment under section 16(3) read with section 17(b) of the Wealth Tax Act were, passed by the Wealth Tax Officer in respect of two assessment years, and by those orders, amounts which had been formerly allowed as deduction were included in the total wealth of the respondent. The orders were set aside by the Tribunal on the ground that the reassessment was based on a mere change or opinion on the part of the Officer, because, there was no "information" in his Possession, as required by section 17(b), which could lead him to believe that chargeable wealth of the respondent had escaped assessment. The appellant 's applications to the Tribunal and the High Court, for a reference to the High Court, were dismissed. In appeal to this Court, HELD: The Tribunal should be directed to make a reference either to the High Court under section 27(1) or to this Court under section 27 (3A) of the Wealth Tax Act. [179 G]. There is a divergence of opinion among the High Courts as to the meaning of the word "information" in. section 34(1) (b) of the Income tax Act, and some High Courts have taken the view that a change of opinion by the Income tax Officer, in certain circumstances, will justify the issue of notice under section 34 (1)(b) of the Income tax Act. Since that section is in pari materia with section 17(b) of the Wealth Tax Act, a question of law did irises a,; to the interpretation of the word "information" in section 17(b) of the Wealth Tax Act and it should have been referred by the Tribunal to the High Court. [179 E] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 19 of 1961. Appeal by special leave from the judgment and order dated April 11, 1957, of Bombay High Court, in Special Civil Application No. 3170 of 1956. K. R. Bengeri and A. G. Ratnaparkhi, for the appellant. E. Udayaratnam and section section Shukla, for the respondent. November 29. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave arises out of a tenancy case instituted by the appellant against his tenants the respondents in the Court of the Mamlatdar Raver (East Khandesh), in the State of Maharashtra. The property in suit 702 consists of agricultural lands, Survey Nos. 32 and 38, situated in the village Raipur. The respondents had executed a rent note in respect of these lands in favour of the appellant on February 5, 1943. The period for which the rent note was executed was five years and the rent agreed to be paid annually was Rs. 785/ . In ordinary course the lease would have expired on March 31, 1948. However, before the lease expired, on April 11, 1946 the Bombay Tenancy Act, 1939 (Bombay Act XXIX of 1939) was applied to the area of the East Khandesh where the lands are situated, and in consequence as a result of section 23 (1) (b) of the said Act the five years period stipulated in the rent note was statutorily extended to ten years; the result was that under the said statutory provision the rent note in favour of the respondents would have expired on March 31, 1953. During the subsistence of the tenancy thus statutorily extended the Bombay Tenancy and Agricultural Lands Act LXVII of 1948 came into force. This act repealed the earlier Act of 1939 except sections 3, 3(a) and 4 as modified. Sections 5 and 14 (2) of this Act are material. On March 11, 1952 the appellant gave notice to the respondents intimating to them that the period of the rent note executed by them which had been statutorily extended would expire on March 31, 1953 and calling upon them to deliver possession of the lands to him immediately thereafter. Before the notice could be effectively enforced on the expiration of the period of the lease, however, Bombay Act XXXIII of 1952 came into operation on January 12, 1953. This Act repealed section 14(2) and amended section 5 and added sub section (3) to it. Shortly stated the effect of this amendment was that the tenancy of the respondents, who were till then ordinary tenants as distinct from protected tenants, could not be terminated on the expiry of their tenancy except by giving one year 's notice and that too on the ground that the lands were required by 703 the landlord for bona fide personal cultivation and that the income of the said lands would be the main source of income of the landlord. The relevant averments about these grounds had to be made by the landlord in issuing the notice to the tenants for terminating their tenancy. On April 4, 1953 the appellant instituted the present tenancy proceedings for obtaining possession of the lands. The Mamlatdar who tried the proceedings rejected the appellant 's claim on the ground that he had not terminated the tenancy of the respondents as required by law in that he had not given the statutory notice making the prescribed relevant averments in that behalf. The appellant then preferred an appeal against the decision of the Mamlatdar but the appellate authority agreed with the view taken by the Mamlatdar and dismissed his appeal. The dispute was then taken by the appellant before the Bombay Revenue Tribunal by way of a revisional application; and the revisional application succeeded. The Tribunal held that the relevant amendments on which the Mamlatdar and the appellate authority had relied in dismissing the appellant 's claim were not retrospective and that the appellant was entitled to eject the respondents. This order of the Revenue Tribunal was challenged by the respondents by a petition filed by them under article 227 of the Constitution in the Bombay High Court. The High Court has allowed the writ petition and held that the relevant amendments are retrospective in operation and that the appellant is not entitled to eject the respondents. On that view the order passed by the Revenue Tribunal has been set aside and that of the appellate authority restored. It is against this decision that the appellant has come to this Court by special leave. It is necessary at the outset to set out the relevant statutory provisions which fall to be considered in the present appeal. 704 Section 23 (1) (b) of the Bombay Tenancy Act of 1939 which statutorily extended the original contractual five years period of the lease to ten years reads thus: "Every lease subsisting on the said date (that is to say the date on which section 23 came into force) or made after the said date in respect of any land in such area shall be deemed to be for a period of not less than ten years". We have already noticed that as soon as this act was made applicable to the area where the lands in question are situated the original period of five years agreed to between the parties for the duration of the lease was statutorily extended to ten years. Then followed the Tenancy Act LXVII of 1948. Section 5 of the said Act originally stood thus: "5. (1) No tenancy of any land shall be for a period of less than ten years. Notwithstanding any agreement, usage or law to the contrary, no tenancy shall be terminated before the expiry of a period of ten years except on the grounds mentioned in section 14: Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of the landlord. " Section 14, sub section (2) which is relevant reads thus: "In the case of tenant, the duration of whose tenancy is for a period of ten years or more, the tenancy shall terminate at the expiration of such period, unless the landlord has by the acceptance of rent or by any other act or conduct of his allowed the tenant to hold over within the meaning of Section 116 of the ." On January 12, 1953, the amending Act XXXIII of 1952 came into force. By this amending Act 705 the following proviso was added to sub section (1) of section 5: "Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of Sub Sections (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary." The said amending Act repealed section 14 (2) of Act LXVII of 1948 and amended section 5, sub section (2) in this way: "The landlord may, by giving the tenant one year 's notice in writing before the end of each of the periods referred to in Sub Section (1), terminate the tenancy, with effect from the thirty first day of March in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in Sub Section (1) of Section 34, but subject to the provisions of Sub Section (2) and (2A) of the said Section, as if such tenant was a protected tenant." A new sub section, sub section (3) was added to section 5. This new sub section reads thus: "Notwithstanding anything contained in sub section (1) (a) every tenancy shall, subject to the provisions of sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in section 14; and (b) a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord: Provided that such surrender shall be in writing and shall be verified before the Mamlatdar in the prescribed manner. " 706 It is common ground that if the provisions of the amending Act XXXIII of 1952 are applicable to the present proceedings the appellant would not be entitled to claim the ejectment of the respondents because he has not given any notice in that behalf as prescribed by the said relevant provisions of the amending statute. His case, however, is that the technical requirements of a valid notice prescribed by the amending Act do not apply to his claim inasmuch as the relevant provisions of the amending Act are not retrospective in operation. According to him he has already given notice to the respondents on March 11, 1952, intimating to them unequivocally his intention to eject them from the lands on the expiration of the ten year period of the lease. The High Court has held that this contention is not well founded and so the appellant 's claim for ejectment has been dismissed. The question which arises for our decision is whether the appellant is entiled to eject the respondents even without complying with the statutory requirement as to the valid notice prescribed by the amending Act XXXIII of 1952. It would be noticed that though the lease originally was for five years, before the five years expired the duration of the lease was statutorily extended to ten years by virtue of the provisions of section 23(1)(b) of Act XXIX of 1939. A somewhat similar, though from the point of view of the appellant a more revolutionary, result followed when a proviso was added to section 5(1) by the amending Act XXXIII of 1952. By virtue of this amendment the period of the lease gets automatically extended for ten years from time to time. In other words, before the lease in favour of the respondents could expire on March 31, 1953, by virtue of the proviso to section 5(1) of the amending Act of 1952 it got extended for ten years, and unless it is terminated by a valid notice or a surrender 707 is made by the tenant as specified by the statute the tenancy would be extended from time to time at every stretch for ten years. Therefore, there can be no doubt that as a result of the amending Act of 1952 the expiration of the lease did not take place on March 31, 1953 as had been anticipated by the appellant when he gave notice on March 11, 1952. In one sense the amending Act which is undoubtedly a piece of beneficent legislation conferred on the respondents additional rights and these additional rights were conferred on them before the lease in their favour had come to an end. In order to put an end to the tenancy thus statutorily safeguarded the appellant has to follow the course prescribed by the amending statute and give a valid notice as required by the said statute. Just as the appellant could not have complained against the extension of the original period of five years to ten years by Act XXIX of 1939 so he cannot complain against the further extensions statutorily granted to the respondents by section 5(1) of the amending Act XXXIII of 1952. That is one aspect of the matter. Besides, it is necessary to bear in mind that the right of the appellant to eject the respondents would arise only on the termination of the tenancy and in the present case it would have been available to him on March 31, 1953 if the statutory provision had not in the meanwhile extended the life of the tenancy. It is true that the appellant gave notice to the respondents on March 11, 1952 as he was then no doubt entitled to do; but his right as a landlord to obtain possession did not accrue merely on the giving of the notice, it accrued in his favour on the date when the lease expired. It is only after the period specified in the notice is over and the tenancy has in fact expired that the landlord gets a right to eject the tenant and obtain possession of the land. Considered from this 708 point of view, before the right accrued to the appellant to eject the respondents amending Act XXXIII of 1952 stepped in and deprived him of that right by requiring him to comply with the statutory requirement as to a valid notice which has to be given for ejecting tenants. In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. As observed by Buckley, L. J. in West vs Gwynne retrospective operation is one matter and interference with existing rights is another. "If an Act provides that as at a past date the law shall be taken to have been that which it was not that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law. " These observations were made in dealing with the question as to the retrospective construction of section 3 of the Conveyancing and Law of Property Act, 1892 (55 & 56 Vict. c. 13). In substance section 3 provided that in all leases containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent. It was held that the provisions of 709 the said section applied to all leases whether executed before or after the commencement of the Act; and, according to Buckley, L. J., this construction did not make the Act retrospective in operation; it merely affected in future existing rights under all leases whether executed before or after the date of the Act. The position in regard to the operation of section 5(1) of the amending Act with which we are concerned appears to us to be substantially similar. A similar question had been raised for the decision of this Court in Jivabhai Purshottam vs Chhagan Karson in regard to the retrospective operation of section 34(2)(a) of the said amending Act XXXIII of 1952 and this Court has approved of the decision of the full Bench of the Bombay High Court on that point in Durlabbhai Fakirbhai vs Jhaberbhai Bhikabhai. It was held in Durlabbhai 's case that the relevant provision of 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 the effect of the amending Act was no more than this that it imposed a new and additional limitation on the right of the landlord to obtain possession from his tenant. It was observed in that judgment that "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". Mr. Bengeri, for the appellant, fairly conceded that the decision of this Court in Jivabhai 's case was against his contention but he purported to rely 710 on another decision of this Court in Sakharam alias Bapusaheb Narayan Sanas vs Manikchand Motichand Shah. In that case the Court was called upon to consider the question as to whether the provisions of section 88 of Bombay Act LXVII of 1948 were retrospective in operation or not, and it has been held that the said provisions are prospective. However, we do not think that the position with regard to the provisions contained in section 88 can be said to be analogous or similar to the position with regard to the relevant provisions of the amending Act XXXIII of 1952 with which we are concerned in the present appeal. Therefore, we do not think that Mr. Bengeri can make any effective use of the said decision. In the result the appeal fails and is dismissed with costs. Appeal dismissed. [/INST]Under a scheme for taking over certain stage carriage services to the complete exclusion of private operators, which was approved and notified by the State of Mysore under the provisions of Ch. IV A of the , it was provided, inter alia: "The State Transport Undertaking will operate services to the complete exclusion of other persons (i) on all the notified inter district routes except in regard to the portions of inter district routes Lying outside the limits of Mysore District, and also (ii) over the entire length of each of the inter district routes Lying within the limits of Mysore District. " The appellants who were running stage carriage omnibuses of certain routes, some of which were inter district and inter State, challenged the validity of the scheme on the ground, inter alia, that between the routes which were taken over and some of the inter district and inter State routes which were left to the private operators, there was an overlap in the Mysore District, and that those routes which were not taken over including the portion of the route Lying within the Mysore District should not be affected by the scheme, because "route" meant a notional line running between two termini and following a distinct course. ^ Held, that the scheme of the , is that the word "route" meant not only the notional line but also the actual road over which the omnibuses run. Under the Act the route or area stand for the road on which the omnibuses run or portions thereof. Kondala Rao vs Andhra Pradesh State Road Transport Corporation, A. I. R. , relied on. Kelani Valley Motor Transit Co., Ltd. vs Colombo Ratnapura Omnibus Co., Ltd. [1946] A. C. 338, explained and distinguished. In the present case, in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, the private operators would not be able to ply their omnibuses on that sector and even those 718 routes which were inter district open to them would stand pro tanto cut down to only that portion which lay outside the Mysore District. Nilkanth Prasad vs The State of Bihar, [1962] Supp. 1 section C. R. 717, followed. </s>

<s>[INST] Summarize the judgementminal Appeal No. 146 of 1954. Appeal from the judgment and order dated the 27th November 1954 of the Court of Judicial Com 683 missioner at Ajmer in Criminal Appeal No. 15 of 1954 arising out of the judgment and order dated 25th August 1954 of the Court of Special Judge at Ajmer in Criminal Case No. 5 of 1953. B. P. Maheshwari, for the appellant. C. K. Daphtary, Solicitor General for India, Porus A. Mehta, H. R. Khanna and B. H. Dhebar, for the respondent. September 21. The Judgment of the Court was delivered by BHAGWATI J. This Appeal with a certificate of fitness under article 134(1)(c) of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in section 21(9), Indian Penal Code. The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer. I He was charged under section 161, Indian Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs. 150 as illegal gratification as a motive for securing a job for one Kallu. He was also charged under section 5(1)(d) of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs. 150 from the said Nanak Singh. He was further charged with having committed an offence under section 420, Indian Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs. 150 by dishonest representation that be could secure a job for the said Kallu. The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence under section 161, 'Indian Penal Code as also the offence under section 5(1) (d) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently. In so far, 684 however, as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu, it was held that no case under section 420, Indian Penal Code was made out and he was acquitted of that charge. The appeal taken to the Judicial Commissioner, State of Ajmer, by the appellant failed and on the 10th December, 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz., (1) whether the appellant was an "officer" within the meaning of clause (9) of section 21, Indian Penal Code, and (2) whether the provisions of section 137 of the Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter ' IX, Indian Penal Code. Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs. 150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant. The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commissioner, State of Ajmer, to the appellant. The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan vs Delhi State(1), which lays down that before the amendment of section 137 of the Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter IX, Indian Penal Code, but in any event they were public servants under the Prevention of Corruption Act (Act II of 1947). In so far as the appellant has, in our opinion, been rightly convicted of the offense under section 5(1)(d) of Act If of 1947 and awarded the sentence of rigorous imprigonment for one year, the question whether he was rightly convicted of the offence under section 161, (1) ; 685. Indian Penal Code for which he was awarded the lesser sentence of six months ' rigorous imprisonment has become merely academical and the only question which remains to be considered by us here is whether he was an "officer" within the meaning of section 21 (9), Indian Penal Code. The provisions of law in regard to the first question may be conveniently set out at this stage: Section 2 of the Prevention of Corruption Act II of 1947 provides: "for the purposes of this Act "public servant" means a public servant as defined in section 21 of the Indian Penal Code". Section 21, Indian Penal Code provides so far as is relevant for the purposes of the present appeal: "The words 'public servant ', denote a person falling under any of the descriptions hereinafter following, namely, Ninth. . . . and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty". There is no doubt that the appellant was. in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty. It was, however, contended that the appellant was not an officer within the meaning of that term as used in section 21(9), Indian Penal Code. An Officer, it was contended, on the authority of Reg. vs Ramajirav jivbajirav and another(1), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects. According to the dictum of West, J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government. He was either himself armed with some authority or repre (1) XII Bom. H.C.R. 1. 386 sentative character or his duties were immediately auxiliary to those of some one who was so armed. It was, therefore, contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects. He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed. He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in section 21(9), Indian Penal Code. If he was thus not an officer of the Government, he could not be a public servant within the meaning of section 21, Indian Penal Code nor could he be a public servant for the purposes of Act 11 of 1947 and could not be convicted of the offence under section 5(1)(d) of Act II of 1947. It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1, concerned an Izaphatdar, that is a lessee, of a village who bad undertaken to keep an account of its forest revenue and pay a certain proportion to the Government, keeping the remainder for himself and the question 'that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 21(9), Indian Penal Code. It was in this context that the aforesaid observations were made by West, J., and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused. He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government. There was no delegation to him of any 687 authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority. The duties which he performed were contractual duties frauduler deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants. This decision in 12 Bombay High Court Reports 1, came to be considered by the Calcutta High Court in Nazamuddin vs Queen Empress(1). The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161, Indian Penal Code. The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause (9) of section 21, Indian Penal Code which declared "every officer in the service or pay of Government" was a public servant be cause he was not an officer. The case of Reg. vs Ramajirav Jivbajirav(2) was cited in support of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under: "The learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant and, in doing so, they considered generally the meaning of the term "officer". It was there held that an officer means "some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government. He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed". The meaning which we are asked to put on these words seems to us to be too narrow as applied to the present case. The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department. The exact (1) I.L.R. (2) XII Bom. H.C.R. 1. 688 nature of his duties is not stated, because this objection was not taken at the trial. , but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superintendent in the performance of the public duties of his office. In that sense he would be an officer of Government, although he might not possibly exercise "any delegated function of the Government". Still his duties would be "immediately auxiliary to those of the Superintendent who is so armed". We think that an "officer in the service or pay of Government" within the terms of section 21 of the Penal Code is one who is appointed to some office for the performance of some pulice duty. In this sense the peon would come within section 21, cl. 9". The true test, therefore, in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government, and (2) whether he is entrusted with the performance of any public duty. If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed. As has been stated in Bacon 's Abridgment at Vol. 6, page 2, in the article headed "Of the nature of an officer and the several kinds of officers": "The word "officium ' principally implies a duty, and in the next place, the charge of such duty; and that it is a rule that where one man 'bath to do with another 's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer". The next paragraph thereafter may also be referred to in this context: "There is, a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to, make hay, herd a flock, &c which differ widely from that of steward of a manor" &c. (Vide 12 Bombay High Court Reports at page 5). 689 This was the sense in which the decision in 12 Bombay High Court Reports 1, was understood by the learned Judges of the Lahore High Court in Ahad Shah vs Emperor(1) when they observed at page 157: "But it is not enough that a person should be in the pay or service of Government to Constitute him a public servant within the meaning of section 21 (ninthly), I.P.C. He must also be an "Officer". That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non Commissioned Officer; it means a functional or holder of some "officium" or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature, it is essential that. the person holding the office, should have in some degree delegated to him certain functions of Government". The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Master 's 'clerk was a public servant within the meaning of that expression in section 21, Indian Penal Code. On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master 's clerk as such was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work (See Queen vs Nachimuttu(2). if therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the 'Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately ' auxiliary to those of some one who is an officer of the Government and is therefore 'an officer ' of the Government within the meaning of section 21(9), Indian Penal Code. Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop. He was working under the Works Manager who was certainly (1) A.I.R. 1918 Lah. (2) I.L.R. 7 Madras 18, 690 an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who, beside being an officer of the Government was also armed with some authority or representative character qua the Government. The appellant was thus, even on a narrow interpretation of the dicta of West, J. in 12 Bombay High Court Reports 1, an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore, a public servant within the meaning of section 21 of the Indian Penal Code. This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him. The appellant was, therefore, an officer within the meaning of section 21(9) and therefore a public servant within the meaning of section 21, Indian Penal Code and being such public servant be fell within the definition of a public servant contained in section 2 of the Prevention of Corruption Act II of 1947. He was, therefore, on the facts and circumstances of the case, rightly convicted under section 5(1) (d) of Act II of 1947. His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed. [/INST]The appellant was a Class III servant employed as a metal examiner, also called chaser, in the Railway Carriage Workshop at Ajmer. He accepted a sum of Rs. 150 as illegal gratification for securing a job for some person. He was charged under section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act II of 1947). The appellant contended that he was not an "officer" within the meaning of the term used in section 21(9) of the Indian Penal Code and so could not be a public servant for purposes of Act II of 1947. It was found that the appellant was working under the Works Manager who was certainly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was also armed with some authority or representative character qua the Government. Held, that the appellant was an officer within the meaning of section 21(9) of the Indian Penal Code and, therefore, a public servant within the meaning of section 2 of Act 11 of 1947. The true test in order to determine whether a person is an officer of the Government, is: " . (1) whether he is in the service or pay of the Government and (2) whether he is entrusted with the performance of any,public duty. The public duty may be either,a function of the Government delegated to him or may be a duty immediately auxiliary to that of someone who is an officer of the Government. vs Ramajirav Jivbajirav ([1875] XII Bom. H.C.R. 1), explained. Nazamuddin V. Queen Empress, ([1900] I.L.R. and Ahad Shah vs Emperor (A.I.R. 1918 Leh. 152), relied on </s>

<s>[INST] Summarize the judgementAppeal Nos. 507375/1985 From the Judgment and Order dated 9.9.1985 of the Kerala High Court in T.R.C. Nos. 29, 30 and 31 of 1985. A.S. Nambiar, Mrs. Shanta Vasudevan, P.K. Manohar and C.N. Sreekumar for the Appellants. B.P. JEEVAN REDDY, J. Civil Appeal Nos. 5073 75185. These appeals arise from a common judgment of the Kerala High Court in a batch of three tax revision cases. The question relates to the interpretation of Section 8(2A) of the . 658 In exercise of the power conferred upon it by Section 10 of the Kerala Sales Tax Act, the State of Kerala issued a notification RS0415 of 1971 providing for "an exemption in respect of the tax payable under the said Act in regard to the turn over of the sales of newsprint by the newsprint plant in the State for the period of two years from the date of starting production of the newsprint by the said plant. ' The appellant Hindustan Paper Corporation Limited entered into an agreement with the Government of Kerala in the year, 1974 reiterating the said exemption. The relevant portion of the agreement reads thus: "The Government of Kerala, with a view to help the project to tide over the difficulties in the initial stages and to establish itself, agree to exempt the turnover relating to the sale, of the products by the corporation from the payment of sales tax for a period of two years from the date of starting of production of the newsprint. " A major portion of the newsprint manufactured at the factory located within Kerala is sold in the course of inter state trade and commerce. During the assessment years relevant to the period of the two years from the date of commencement of production at the Kerala Factory, the appellant claimed exemption not only from the State sales tax by virtue of the aforesaid notification and agreement but also from Central Sales Tax under and by virtue of sub section (2A) of Section 8 of the . The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the . The appeals preferred by the appellant to the Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal were dismissed whereupon it approached the High Court by way of revisions under Section 41 of the State Sales Tax Act. The High Court too disagreed with the contentions urged by the appellant and dismissed the tax revision cases. Hence, these appeals. The dispute between the parties, in brief, is thus: the appellant says that exemption granted to it by the aforesaid notification issued under the Kerala Sales Tax is a general exemption within the meaning of Section 8(2A) and, therefore, the inter state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 8(2A). On the other hand, the 659 case of the Government of Kerala is that the exemption granted to the appellant under the State Sales Tax Act is not a general exemption but a conditional one; further the exemption operates only in certain specified circumstances. Accordingly, they say, the provision contained in Section 8(2A) does not go to exempt the inter state sales of the appellant. The inter state sales effected by the appellant are those failing under Section 3(A) of the . The liability to pay Central Sales Tax on inter state sales arises by virtue of sub section (1) of Section 6. Sub section (1A) of Sec. 6 says that a dealer shall be liable to pay tax under the Central Act on sale of goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable under the Sales Tax law of the appropriate State if such sale had taken place inside the State. Sub section (1) of Section 8 prescribes the rate at which the Central Sales Tax is chargeable where the goods are sold to persons and authorities mentioned therein while sub section (2) prescribes the rate in cases other than those falling under sub section (1). Sub section (2A) of Section 8, which is material for our purpose reads thus: "(2A) Notwithstanding anything contained in sub section (lA) of Section 6 or sub section (1) or clause (b) of sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent. (Whether called a tax or fee or by any other name), shall be nill or, as the case may be, shall be calculated at the lower rate. Explanation: For the purpose of this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in special circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods. " 660. What does sub section (2A) says? It opens with a non obstante clause which gives it an overriding effect over the provisions contained in Sections (lA) and over sub section (1) as well as clause (b) of sub section (2) of section 8. b section seeks to provide exemption to a dealer with expect to his turnover in so far as his turnover or any part thereof relates (a) sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or (b) where his turnover or any part thereof relates to the sale of any goods the sale or purchase of which is subject to tax generally at a rate which is lower than four per cent. In a case covered by (a) the Central Sales Tax will be nil while in a case falling under (b), Central Sales Tax shall he chargeable at the same lower rate at which the State sales tax is charge able. The explanation appended to sub section seeks to define the words "exempt from tax generally. " The explanation is couched in negative terms. It says that for the purposes of the said sub section, a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the State Sales Tax law if (i) under the State law the sale or purchase of such goods is exempt only in specified circumstances or (ii) if under the ' State law the sale or purchase of such goods is exempt only under specified conditions or (iii) if under the State law the tax is levied on the sale or purchase of such goods at specified stages or (iv) where under the State law the tax is levied otherwise than with reference to the turnover of the goods. The sole question in this case is whether the exemption granted under the aforesaid notification exempting the produce of a factory manufacturing newsprint from the State sales tax for a period of two years from the date of commencement of production in the factory can be called an exemption from tax generally. To put it differently, the question is whether the said exemption is one operative only in specified circumstances or whether the exemption is one which is operative only under specified conditions in which case it cannot be said to be an exemption "generally. The learned counsel for the appellant relies upon the decision of this Court in Pine Chemicals Limited vs Assessing Authority; , , a decision rendered by section Ranganathan, V. Ramaswami and N.D. Ojha, )J. According to him, the said decision is conclusive on the question. 661 The counsel for the State of Kerala, on the other hand, seeks to distinguish the said decision. According to him, the said decision does not consider the precise question and aspect which really, arises in these .appeals. The learned counsel for the State of Kerala, Sri G. Vishwanath lyer, puts his case thus: if one is asked whether the exemption granted under the aforesaid notification is a general exemption, his obvious answer would be, No. It is not an exemption which operates generally but an exemption limited to two years from the date of commencement of the production of newsprint in the factory. Similarly, if a person is asked whether newsprint is exempt generally from the State sales tax in Kerala, none would answer in the affirmative. He would say that the sale of newsprint in Kerala is exempt only in certain circumstances or subject only to a condition viz., that newsprint is produced within two years of the commencement of the production in the factory located in Kerala. It is, therefore, idle to contend, says Sri lyer, that the sale of newsprint within Kerala is exempt generally from the State sales tax. In such a case, says the counsel, the provision contained in sub section (2A) does not come into operation and the inter state sales of such newsprint cannot be said to be exempt from the Central Sales Tax. Mr. lyer further says that the exemption notification issued by the Government of Kerala under Section 10 of the State Act does not exempt newsprint from the State sales tax al together. It grants exemption only in a specified situation viz., in respect of the newsprint produced within the period of two years from the date of commencement of production by a factory manufacturing newsprint in the State of Kerala. The exemption would thus operate for different periods in the case of different assessees inasmuch as the date of commencement of production by all the manufacturers of newsprint may not be the same. Moreover, the benefit of the said notification is available only where a factory goes into production after the commencement of the said notifica tion, says Sri lyer, He elaborates his submission saying that the exemption granted by the said notification is only in favour of certain dealers or a class of dealers, in certain circumstances and is not in the nature of a general exemption. An exemption given under Section 10 of the State Act with reference to dealers or a class of dealers i.e., referable to clause (ii) of sub section (1), says the counsel, can never be called a general exemption nor can it be characterised as an exemption operating 'generally '. A general exemption, according to the learned counsel, means a general, unqualified/unconditional exemption. Counsel says that the decisions of 662 this Court in Indian Aluminum Cables vs State of Haryana 38 S.T.C. 108 and in Industrial Cables Corporation V. Commercial Tax Officer 35 S.T.C. 1 support his contention. The learned counsel places strong reliance upon the object and reasons appended to the bill proposing the substitution of sub section (2A) in the year 1972. The objects and reasons relied upon by the learned counsel read thus: "Clause 5 Sub Clause (a) of this clause seeks to substitute a new sub section for the existing sub section (2A) of Section 8 of the Principal Act. The new sub section seeks to bring out more clearly that an exemption or lower rate of levy under the local sales tax law of the appropriate State would be available in respect of an inter state sale of goods only if such exemption or lower levy is available generally with reference. to such goods or such class of goods under the local sales tax law. " According to Sri Iyer the said statement of objects and reasons puts the meaning, purpose and object of the sub section beyond any doubt. On the other hand, Sri A.S. Nambiar, learned counsel for the appellant corporation submits, adopting the reasoning in Pine Chemicals that the circumstances or conditions contemplated by the explanation to sub section must be the circumstances and conditions attaching to the sale and not to the dealer. The exemption notification merely serves to identify the dealer and the goods entitled to exemption but it does not lay down any circumstances or conditions attaching to the sale of goods (Newsprint). Sri Nambiar says that once the goods are identified viz., that it is a newsprint manufactured by a factory within two years of its commencing production, there is no further condition attaching to the exemption; the goods are exempt generally. It is not a case where the exemption is hedged in by certain conditions nor is it a case where the exemption operates only in certain circumstances. The learned counsel submits that the decisions of this court in Indian Aluminum and Industrial Cables have been considered and explained by this Court in Pine Chemicals and, therefore, the principle of those decisions cannot be read as supporting the State 's submissions. While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of 663 the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu & Kashmir had issued orders providing for exemption "from the State sales tax both on raw materials and finished products for a period of five years from the date the unit goes into production." Question had arisen whether the said exemption attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub section (1) and (lA) of Section 6 as well as of sub sections (1), (2) and (2A) of Section 8 and then observed: "On a plain reading of Section 8(2 A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax generally at a rate which is lower than 4 per cent than his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of 'a dealer ' which term would include 'any dealer ' or 'any class of dealers ' The existence or otherwise of the three Limitations under the 664 explanation above referred to on claiming exemption under Section 8(2 A) of the will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods. Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2 A) of the . The learned Advocate General for the State contended that the conditions that the industr y should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2 A) of the . We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub 665 sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at 'specified stage" does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods." (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect to "sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the (9 of 1910), of goods for use by it in generation or distribution of such energy." The learned Judge pointed out that the two conditions mentioned in the said notification related to purchaser company being a licensed undertaking supplying electrical energy to the public and further that the goods sold to it are for use by the said undertaking in generation or distribution of such energy. Following the decision in Pine Chemicals, we must and accordingly we do allow these appeals. No orders as to costs. N.V.K. Appeals allowed. [/INST]The State of Kerala issued Notification RSO 415 of 1971 under Section 10 of the Kerala General Sales Tax Act providing for an exemption in respect of tax in regard to the turn over of the sales of newsprint for a period of two years from the date of starting production of the newsprint plant. The appellant entered into an agreement with the State Government in 1974 giving the said exemption. A major portion of the newsprint manufactured at the factory located within the State was sold in the course of inter state trade and commerce, and during the assessment years relevant to the period of the two years from the date of the commencement of the production, the appellant claimed exemption not only from the State Sales Tax, by virtue of the 1971 Notification and the 1974 agreement but also from the Central Sales Tax under and by virtue of sub section (2A) of Section 8 of the . The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the . Appeals preferred by the appellant to the Appellant Assistant Commissioner and the Sales Tax Appellant Tribunal were dismissed, and when the appellant approached the High Court by way of revision under Section 41 of the State Sales Tax Act the High Court also dismissed the revisions petitions. 656 In the appeals to this Court it was contended on behalf of the appellant relying on Pine Chemicals Limited vs Assessing Authority, [199] 2 S.C.C. 683 that the exemption granted to It by the 1971 State Government notification Issued under the Kerala Sales Tax Act Is a general exemption within the meaning of Section 8(2A) and, therefore, the inter state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 8(2A). The State contested the appeals by contending that the exemption granted to the appellant under the State Sales Tax is not a general exemption but a conditional one, and that the exemption operates only in certain specified circumstances, and that the provision contained in Section 8(2A) does not go to exempt the inter state sales of the appellant. On the question whether the exemption granted under the 1971 State notification exempting the produce of the appellant factory manufacturing newsprint from the State Sales Tax for a period of two years from the date of commencement of production in the factory can be called An exemption from tax 'generally '. Allowing the appeals, this Court, HELD:1. The inter state sales effected by the appellant are those failing under Section 3(a) of the Central Sales Tax Act. The liability to pay Central Sales Tax on inter state sales arises by virtue of sub section (1) of Section 6. Sub section (2A) of section 8 seeks to provide exemption to a dealer with respect to his turnover. The explanation appended to the sub section is couched in negative terms and seeks to define the words 'exempt from tax generally", and indicates when a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the State Sales Tax Law. [659 B, 660 B C] 2.An inter state sale or purchase of a commodity shall not be deemed as exempt from State Tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are with reference to the transaction of sale or purchase. [663 F G] 657 3.The existence or otherwise of the aforesaid three limitations on claiming exemption the explanation under Section S(2 A) of the will have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods. [663 H, 664 A] 4.The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of Section 8(2 A). [664 E] 5.The conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. [664 G] Pine Chemicals Limited vs Assessing Authority, ; , explained and followed. [660 H] Indian Aluminum Cables vs State of Haryana, 38 S.T.C. 108, Industrial Cables Corporation vs Commercial Tax Officer 35 S.T.C. 1, distinguished. [662 A] </s>

<s>[INST] Summarize the judgementAppeals Nos. 1954 and 1955 of 1966. Appeals from the judgment and decree dated May 30, 1963 the Punjab High Court in Regular First Appeal No,. 105 of 1957. A.K. Sen and R.K. Aggarwal, for the appellant (in C.A. No. 1954 of 1966). and respondents Nos. 5, 6, 8 and 9 (in C.A. No. 1955 of 1966). Bishan Narain, B.P. Maheshwari and R.K. Gupta, for the appellants (in C.A. No. 1955 of 1966) and respondents Nos. 2 to 6 (in C.A. No. 1954 of 1966). Sarjoo Prasad, Rameshwar Prasad and A.D. Mathur, for respondent No. 1 (in both the appeals). S.M. Jain, for respondents Nos. 13(i) to 13(iv) (in C.A. No. 1954 of 1966) and respondents Nos. 12(i) to 12(iv) (in C.A. No. 1955 of 1966). Hegde, J. The question of law that arises for decision in these appeals by certificate is whether the daughters of a pre deceased son of a Hindu Woman are entitled to succeed to her stridhana ? The trial court answered the question in the affirmative but the High Court in appeal came to the conclusion that they are not fentitled to succeed to the estate in question. The material facts of this case are few. For a proper understanding of the facts of the case, it will be convenient to have 'before us the admitted pedigree of the family. It is as follows: 492 The finding of the trial court that the suit properties are the stridhana properties of Barji was not contestect before the High Court. In tins Court at one stage 'a feeble attempt was made on behalf of the appellants to contest that finding. We did not permit that finding to be challenged as the same had not been challenged before the High Court. Therefore we proceed on the basis of that finding. Barji died in September 1950. Her husband Patu Ram had predeceased her. It appears that he died sometime in 1904. Patu Ram 's father Bool Chand as well as Patu Ram 's brothers Tulsi Ram, Behari Lal and Hira Lal had predeceased Barji. Patu Ram and Barji had a son by name Jugal Kishore wno had predeceased Patu Ram leaving behind him his widow Bindri wno died in 1931. They had no children. Radha Kishan, the adopted son of Patu Ram and Barji died about 20 years 'before the death of Barji leaving behind him his widow, defendant No. 6. Radha Kishan had live children including defendants Nos. 1 to 3 through another wife. His son Roshanlal had died a few months before the death of Barji. His daughter Balwanti had predeceased Barji leaving behind her children defendants 4 and 5. Tulsi Ram 's son Prahlad Rai had also predeceased Barji leaving behind his widow defendant No. 8 and son defendant No. 7. By the time succession to the estate of Barji opened all the children of Behari Lal and Hizalal had died but some of them had children and grand children, as, seen from the pedigree. After the death of Barji, her properties came to the possession of defendant No. 6. Defendant No. 1 sued for the possession of those properties on the ground that she and her sisters are preferential heirs to the deceased Barji. To that suit she did not make Amar Nath, the plaintiff in the present suit, a party. Amar Nath 's application for being impleaded as a party in that suit was opposed by the 1 st defendant and the said application was ultimately rejected by the court. The dispute in that suit was referred to arbitration. The arbitrators upheld the claim of defendants Nos. 1 to 3. Thereafter the present suit was brought. the High Court as well as in the trial court there was a triangular contest. The plaintiff claimed that he was exclusively entitled the suit properties, defendants Nos. 1 to 3 claimed that they are the nearest heirs to Barji; some of the other defendants contended that they succeeded to the suit properties as co tenants with the plaintiff. In this Court all the contesting defendants sail together. As mentioned earlier, the trial court 'accepted the claim of defendants Nos. 1 to 3 but the High Court held that the plaintiff was exclusively entitled to the suit properties, he being the nearest heir to the deceased. That finding is contested both by defendants Nos. 1 to 3 as well as by the other contesting defendants. is how the aforementioned two appeals came to be filed. In arriving at its finding the High Court relied on the rules of succession found in paragraph 147 of Mulla 's Principles of Hindu 493 Law (13th Edn.). It came to the conclusion that those rules are exhaustive. On the basis of those rules, it ruled that defendants Nos. 1 to 3 were not entitled to succeed to the estate of Barji. So far as the other defendants are concerned it rejected their claim on the ground that as between the plaintiff and themselves the former is a preferential heir as he is the nearest in degree to Barji. It is the admitted case of the parties that the properties in question are not shulka and that Barji was married in one of the approved forms. Therefore while pronouncing. on the competing claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is correct and exhaustive. Paragraph 147 says: "Stridhana other than shulka passes in the following order: (1) unmarried daughter; (2) married daughter who is unprovided for; (3) married daughter who is provided for; (4) daughter 's daughter; (5) daughter 's son; (6) son; (7) son 's son. If there be none of these, in other words, if the woman dies without leaving any issue, her stridhana, if she was married in an approved form, goes to her husband, and after him, to the husband 's heirs in order of their succession to him; on failure of the husband 's heirs, it goes to her blood relations in preference to the Government. But if she was married in an unapproved form, it goes to her mother, then to her father, and then to the father 's heirs and then to. the husband 's heirs in preference to the Government". The legal position is stated in identical terms in Mayne 's treatise on Hindu Law (Eleventh Edn. Paragrah 623, pages 744 to 746) as well as in the other text books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No. 7 (son 's son) was not challenged. The same is well settled bY decided cases. It is not necessary to refer to those cases. The only contention advanced on behalf of some of the defendants is that after son 's sons come sons ' daughters. Alternatively it was contended that the expression "son 's son" includes "son 'S daughter". We have to see whether these contentions are well founded. The rules relating to succession to stridhana enunciated in the text books are based on Yajnyawalcya 's text "her kinsmen take it, if she die without issue". This statement is elaborated by Vijnyaneswara in Mitakshara. The relevant portions thereof as transtated by H.T. Colebrooke are found in placita 8, 9, 10 and 11 in Section XI of his book "Mitacshara". They read as follows: 494 "8. A woman 's property has been thus described. The author next propounds the distribution of it: 'Her kinsmen take it, if she die without issue '. If a woman die 'without issue ' that is leaving no progeny; in other Words, having no daughter nor daughter 's daughter nor daughter 's son, nor son, nor son 's son; the woman 's property, as above described, shall be taken by her kinsmen; namely her husband 'and the rest, as will be (forthwith) explained. The kinsmen have been declared generally to be competent to succeed to a woman 's property. The author now distinguishes differec at heirs according to the diversity of the marriage ceremonies. The property of a childless woman, married in the form denominated Brahma, or in any of the four (unblamed modes of marriage), goes to her husband: but, if she leave progeny, it will go to her (daughter 's) daughters: and, in other forms of marriage (as the Asura & c.), it goes to her father (and mother, on failure of her own issue). Of a woman dying without issue as before stated, and who, had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the (whole) property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But, in the other forms of marriage called Asura, Gandharba, Racshasa and Paisacha; the property of 'a childless woman goes to her parents, that is, to her father and mother. The succession devolves first (and the reason has been be,fore explained) on the mother, who is virtually( exhibited (first) in the elliptical pitrigami implying 'goes (gachhati) to both parents (pitarau;), that is to the mo ther and to the father '. On failure of them, their next of kin take the succession. " These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach son 's son. The controversy now is as to who should succeed to such an estate if none of the heirs mentioned in items Nos. 1 to. 7 in paragraph 147 of Mullas Hindu Law is in existence at the time of the death of the woman concerned. 495 Mr. A.K. Sen, learned Counsel for some of the defendants contested the correctness of Colebrooke 's translation in certain respects. He wanted us to examine the original text to find out whether the translation found in placita 9 is correct ? The parties did not place before us either an admitted translation of the original text or even an official translation. Colebrooke is a distinguished oriental scholar. The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his commentary on Hindu Law( 2nd Edn ) deals with the order of succession under Mitakshara to stridhana property in Chapter VI of that book. His translation of the relevant commentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya Bin Venkappacharya vs Ramcharya Bin Bhimacharya(1). Hence we are unable to agree with Mr. Sen that Colebrooke 's translation does not bring out accurately the meaning of the relevant passages in Mitakshara. Colebrooke in his book 'Mitakshara ' published in 1869 sets out the order of succession to a woman 's stridhana properties at page 15 8 thus: Maiden daughter . 1 Unendowed married daughter . 2 Endowed married daughter . 3 Daughter 's daughter . 4 Daughter 's son . 5 Son . 6 Grandson . 7 Husband . 8 If the contention of defendants is correct then son 's daughter and not husband should have come after the grandson. But that is not the case. Mr. Bishan Narain, learned Counsel for defendants Nos. 1 to 3 contended that the list given in Mitakshra is only illustrative and not exhaustive. He urged that Yajnyawalcya had stated that "a woman 's property would devolve on her kinsmen if she died without issue" which means that it would devolve on her progeny which expression includes son 's daughter as well. In this connection he also relied on Vijnyaneswara 's commentary stating that the expression 'without issue ' found in Yajnyawalcya text means "leaving no progeny". On the basis of these statements he contended that even according to Vijnyaneswara, the deceased woman 's progeny would take her stridhana in preference to her kinsmen including her husband. On the basis of this premise he proceeded to argue that the other words used in placita 9 viz.: (1)I.L.R 33 Born. 452 496 "having no daughter nor daughter 's daughter nor daughter 's son nor son nor son 's son" should be understood as merely being illustrations of the word "progeny". This contention is opposed to the commentaries by Narada, Gautama and the later commentators. More than that it runs counter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century. It is now well settled that stridhana of a Hindu woman governed by Mitakshra passes in the order mentioned in Mitakshra and the children of the deceased woman do not take the same as a body either jointly or as tenants in common. Only the heirs belonging to a class take the properties as tenants in common. Mr. Bishan Narain next contended that under Mitakshra propinquity is the test of inheritance. Therefore there is no reason why the deceased woman 's husband 's brother 's son should take the properties in preference to her son 's daughters. We do not think that in the matter of succession to stridhana propinquity was considered by the law givers as the sole or even the principal test, otherwise there is no justification for a daughter 's daughter or a daughter 's son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in society religious matters particularly when our social laws were controlled by our religious beliefs and our law givers were our religious preceptorS. It is for the legislature to step in 'and bring about harmony between the society and the laws governing it. That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects. We are unable to accept the contention of Mr. Bishan Narain that the expression son 's son includes son 's daughter as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughter 's daughter succeeds to the stridhana in preference to daughter 's son. The order of succession prescribed clearly rules out the application of that rule of interpretation. Mr. Sen in support of his contention that on a true interpretation of the relevant passages in 'Mitakshra ', defendants Nos. 1 to. 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Kumar Raghava Surendra Sahi vs Babui Lachmi Kuer(1). Therein the dispute related to the succession. to the properties left by a maiden 'and not by a married (1) Pat. Sqo (2) L.R. 33 I.A. 176. 497 woman. The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore the observations made in regard to those rules have no relevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bali Kesserbai vs Hunsraj Morarji and anr.(1). Therein the dispute was between Bai Kesserbai the surviving co widow of the deceased Bachubai 's husband Koreji Haridass, Hunsraj Morarji the separated nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai and Bai Monghibai, the widow of 'a younger brother of Koreji named Ranchordass Haridass. The question for consideration by the Judicial Committee was as to the true scope of the latter part of the placing 9 in Colebrooke 's Mitakshara which says "if a woman die without issue, that is, leaving no progeny . the woman 's property . . shall be taken by her kinsmen namely her husband and the rest as will be forthwith explained". Their Lordships observed that there can be no reasonable doubt that according to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the co widow of the husband of the deceased was the nearest sapinda of the deceased woman 's husband and hence entitled to succeed to the estate in question. This decision again does not bear on the point under consideration. Lastly Mr. Sen contended that in view of the Hindu Woman 's Rights to Property Act (XVIII of 1937), it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This contention was negatived by the High Court on the basis of the rule laid down 'by this Court in Annagouda Nathgouda Patil vs Court of Wards and anr. (2) wherein this Court dealing with Act 11 of 1929 observed: "The question is whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and section 1 (2) expressly lays down that 'the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will. ' Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the (2) ; 498 devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act ' does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for 'all purposes; it makes them heirs only when the proportion is a male and the property in respect to which it is sought to be applied is his separate property. " Similar would be the position under the Hindu Woman 's Right to Property Act, 1937. Section 3(1) of that Act which provides for the devolution of the property reads thus: "When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall, subject to the provisions of sub section (3) be entitled i,n respect of property in respect of which he dies intestate to the same share as a son . " From this provision it is clear that Hindu Women 's Right to Property Act, 1937 applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hindu female. For the reasons mentioned above these appeals fail and they are dismissed with costs advocates ' fee one set. V.P.S. Appeals dismissed. [/INST]By section 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, "the District Magistrate may require a landlord to let or not let to any person any accommodation which is or has fallen vacant" and section 16 of the Act provides that "no order made under this Act by the State Government or the District Magistrate shall be called in question in any court. " The first appellant applied for an order in ejectment of the first respondent on the plea that he had committed default in paying rent. The District Magistrate held that the respondent was not in occupation of the shop, declared the shop vacant and allotted it to another person. The respondent brought an action in the civil court for a declaration that he was an allottee of the shop and was in possession in that capacity. The trial court held that the appellant never vacated the shop, nor was his tenancy terminated, and was therefore entitled to remain in occupation of the same. An appeal to the District Court and a second appeal to the High Court were unsuccessful. In appeal to this Court, the appellants contended that the suit filed by the respondent was not maintainable, for the Act set up a complete machinery for determining after enquiry whether any premises governed by the Act had fallen vacant. and that by express enactment in section 16, the order of the District Magistrate was declared final. Rejecting the contention. HELD: The Legislature while investing the District Magistrate with power to allot the premises to another person on the existence of a vacancy has not made his determination of the preliminary state of facts conclusive. There is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises. Whether there is a vacancy is a jurisdictional fact which could not be decided by him finally. By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not posses 'section It is only when the order is with jurisdiction that the order is not liable to be challenged in a civil court by virtue of section 16 of the. [368 H 369 C] Reg vs Commissioner of Income tax, , and Ebrahim Aboobakar & Anr. vs Custodian General of Evacuee Property, ; , referred to. </s>

<s>[INST] Summarize the judgementivil Appeal No. 528 of 1963. Appeal from the 'judgment and order dated March 28, 1962 of the Rajasthan High Court in D.B. Civil Writ Petition No. 164 of 1961. G.S. Pathak, K. Jinder, B. Dutta, d. B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. G.S. Kasliwal, Advocate General for the State of Rajasthan, S.K. Kapur and B.R.G.K. Achar, for the respondents. October 3, 1963. The Judgment of the Court vas delivered by SHAH J. By order of the President of India, H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur hereinafter called 'the appellant ' was recognised 3 as the Ruler of Udaipur with effect from July 4, 1955 in succession to his father the late Maharana Bhupal Singh. A, dispute arose between the appellant and his employees in the "Motor Garage Department" about the conditions of employment and representations were made by the latter to the Government of Rajasthan through the Motor Workers Mazdoor Union, Udaipur. The Government of the State of Rajasthan, on December 18, 1957 referred under section 10 of the (14 of 1947), the following dispute to the Industrial Tribunal, Rajasthan: "Whether the Maharana Sahib Bahadur of Udaipur is liable to pay to the staff working with him in the Palace Power House and Motor Garage, consequent to their retrenchment, the arrears of claims or the due salary, leave wages, overtime wages and weekly holidays as per schedule appended here to and if so, to what extent. If not. to what relief the staff is entitled to under the provisions of the , as the question of payment of the claims has arisen with the termination of their services due to retrenchment effected by the employers. " Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That the reference to the Industrial Tribunal for adjudication of the dispute was not maintainable without the previous sanction of the Central Government to the making of the reference. (2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the , as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent. The Tribunal rejected both the objections and a writ petition filed by the appellant challenging the 4 validity of the order of the Tribunal was dismissed by the High Court of Rajasthan. The appellant has appealed to this Court, with certificate granted by the High Court of Rajasthan. The appellant contends in the first instance that without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent. But the dispute between the parties relates to the claim made by the employees for retrenchment and other compensation and leave facilities: the dispute is raised before the Industrial Tribunal in a reference under the , and not before a civil court in a suit. The appellant is therefore not "sued" in a court. Section 86 Code of Civil Procedure on which reliance is placed by the first sub section provides that: "No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified 111 writing by a Secretary to that Government :" and by section 87B the provisions of section 86 apply in relation to the Ruler of any former Indian State as they apply in relation to the Ruler of a foreign State. The appellant is recognised under article 366(22) of the Constitution as a Ruler of an Indian State, but section 86 in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of a plaint or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure. The proceeding for adjudication under the is rounded in a reference made by the local Government under section 10 and the allied sections under the and is not commenced by a plaint or petition. An Industrial Tribunal is again not a court within the meaning of section 86: it is a Tribunal consti 5 tuted for adjudicating industrial disputes. Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed. It does not debar the commencement of proceedings for adjudication of an industrial dispute for two reasons: neither party to the proceeding is sued by the initiation of the proceeding, and the Tribunal is not a court. It was urged however that by article 362 of the Constitution the personal rights, privileges and dignities of the Ruler of an Indian State guaranteed or assured under any agreement or covenant made prior to the Constitution are preserved, and a fetter is placed upon the exercise of power, legislative and executive, of the Union and the States, against infringement of the guarantee or assurance given under the covenant or agreements entered into by a Ruler of an Indian State. Consequently, it is submitted, as a Ruler of an Indian State the appellant is entitled to the same privileges which a sovereign enjoy,, under rules of International Law against foreign jurisdiction, and the same immunity from being proceeded against either in the ordinary or extraordinary civil or criminal tribunals, and from payment of all taxes, and being subjected to police or other administrative regulations. The position of the former Rulers of Indian States has, since the year 1947, been fundamentally altered. Prior to 1947 the Indian princes were, notwithstanding the varying degree of suzerainty exercised over them by the British Crown, recognised as having a. degree of sovereignty and were in an international sense regarded qua British India as foreign sovereigns, and entitled to certain rights, privileges and immumties. On the enactment of the Indian Independence Act, the suzerainty which the British Crown had over the Indian States lapsed and with it all the treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty exist 6 ing at that date towards Indian States or the Rulers thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise also came to an end. Like other States the State of Udaipur executed an agreement of accession and thereby in matters of defence, external affairs and communications concerning the State, the Government of India assumed sole responsibility. This accession was followed by a process of integration of the Indian States in Rajasthan which culminated in the formation of the United State of Rajasthan. The Rulers of the Indian States in the Rajasthan area including the Ruler of Udaipur formed the United State of Rajasthan, under a covenant the provisions whereof were guaranteed by the Government of India. This covenant was modified by an agreement which became effective from May 15, 1949. On the enactment of the Constitution on January 26, 1950 the Union of Rajasthan became one of the Part 'B States, and by the Constitution (Seventh Amendment) Act, 1956, the Part 'B ' State of Rajasthan was recognised as one of the States in India. As a result of the constitutional developments leading to the promulgation of the Constitution the father of the appellant who was at one time recognised as a sovereign of an independent State acquired the status of a citizen of India. The appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position. The covenant of the United State of Rajasthan to which the appellant 's father as the Ruler of Udaipur was a party consists of 20 articles. It would be fruitless for the purpose of this appeal to catalogue all the articles dealing with the rights, privileges and dignities of the Ruler of Udaipur. A few only need be set out. By article XI as Ruler of a covenanting State he was entitled to receive annually from the revenues of the United State of Rajasthan for his 7 privy purse the amounts specified against his State in Sch. 1 thereof. By article XII he remained entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties), belong ing to him on his making over the administration of that State to the Raj Pramukh. By article XIII the Ruler of each covenanting State, as also the members of his family, were entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before August 15, 1947, and by article XIV the succession, according to law and customs, to the gaddi of each covenanting State, and the personal rights, privileges, dignities and titles of the Ruler were guaranteed. By article XV guarantee was given against any action or proceeding in any court whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that covenanting State. The covenant is in general terms, and does not purport to make a comprehensive list of the personal rights, privileges and dignities except those which have been specifically referred to. The agreement which came into force on May 15, 1949 makes no departure from the articles of the covenant. The covenant which was entered into by the Rulers of the Indian States in Rajasthan and the agreement of May 15, 1949, had the concurrence of the Government of India and the provisions thereof were guaranteed by the Government of India. In order to give constitutional recognition to the guarantees and assurances under the covenants and agreements articles 362, 363, 131 proviso and 291 were incorporated in the Constitution. Article 362 with which we are directly concerned provides: "In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in article 8 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." The Article declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. It must be emphasized, that these rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them. It is in that view unnecessary to enter upon a discussion as to. what immunities and privileges, a foreign sovereign would be entitled to in the Republic of India. The question on which attention must be concentrated is: does the reference of the industrial dispute by the Government of the State of Rajasthan which attracts the application of the , trench upon the guarantee or assurance under the covenant executed by the appellant 's father, with respect to the personal rights privileges and dignities of the Ruler of the State of Udaipur, and if it does so trench, are the courts competent to grant relief ? The , as originally enacted applied to British India. But by the amendment made by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), section 34 and the Schedule thereto, the Act was extended to the whole of India except the State of Jammu and Kashmir, and since then by the enactment of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 36 of 1956, the Act extends to the whole of India. The , therefore, applied at the material time to the territory of Rajasthan. The appellant is a citizen of India, the Act extends to the territory of Rajasthan and prima facie he is governed by the provisions of the Act. The plea raised by the appellant is that by virtue of article 362 of the Constitution reference of an 9 industrial dispute under the machinery provided under the Act for settlement of industrial disputes infringes the guarantee or assurance in respect of his personal rights, privileges and dignities assured to him by the covenant which formed the Union of Rajasthan. But the plea of immunity from the jurisdiction of the Industrial Tribunal, in the matter of adjudication of an industrial dispute, because it was a personal right or privilege, was never raised in the High Court, and no evidence has been led in that behalf. As observed in the White Paper on Indian States, para 240 at p. 125, the rights enjoyed by the Rulers varied from State to State and were exercisable both within and without the States. They covered a variety of matters ranging from the use of red plates on cars to immunity from civil and criminal jurisdiction, and exemption from customs duties etc. In truth no reliance at all was placed on article 362 of the Constitution in the High Court. In the absence of evidence directed to the question whether the appellant as "Ruler of the Indian State of Udaipur" was entitled by virtue of the covenant or agreement relied upon by him to the privilege of not being proceeded against in the Industrial Tribunal, we would not be justified in entertaining his plea. It may also be mentioned that if exemption from the jurisdiction of the Industrial Tribunal be claimed relying on the guarantee or assurance under the covenant being disputed, the questions whether the courts have jurisdiction to deal with the dispute if the covenant or the agreement was one of the nature referred tO in article 363, or the dispute relates to any right accruing under or liability or obligation arising out of any provisions of the Constitution relating to such treaty, agreement etc., may fail to be determined. This Court in Sudhansu Shekhar Singh Deo vs State of Orissa(1) observed at p. 786: "If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsis (1) [1961] 1 S.C.R.779,786. 10 tent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot, relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by article 363 of the Constitution." But whether the bar to the jurisdiction of a court arising out of article 363 can be effectively pleaded has, it must be observed, not been investigated before the High Court. It was also not raised before us: it has fallen to be mentioned by us because it arises out of the plea raised for the first time before this Court in which reliance is placed on article 362 by the appellant. We therefore decline to express any opinion on the questions whether by article 362 the appellant is privileged against a reference under the and also whether the courts have jurisdiction to adjudicate upon the plea set up by the appellant. The second contention was, in our judgment, rightly negatived by the High Court. The was applied to the territory of Rajasthan by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), and an Industrial Tribunal was thereafter constituted by notification dated June 2, 1953, under section 7 of that Act. The was, however, amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act (36 of 1956), and section 7 as originally enacted was deleted and in lieu thereof sections 7, 7A. 7B and 7C were enacted. The power to appoint an Industrial Tribunal was, under the amended act, conferred upon the appropriate Government by section 7A. But it appears that no fresh notification appointing the Tribunal was issued under section 7A, and the Tribunal originally constituted under section 7 'functioned. To that Tribunal reference of the present dispute was made by order dated December 18, 1957. The High Court of Rajasthan in Writ Petition No. 107 of 1958 Mundra Metal Works Private Ltd. vs The State of Rajasthan and two others held that the reference made to the Tribunal which was constituted under section 7 of the Industrial 11 Disputes Act before it was amended by Act 36 of 1956 was incompetent. The State Government then reconstituted the Tribunal under section 7A of the Act by notification dated April 16, 1959, but no fresh 3 reference of the dispute in the present case was made by the State Government to the reconstituted Tribunal. Relying upon this development the appellant urged that the Tribunal reconstituted by notification dated April 16, 1959 had no jurisdiction to entertain the reference originally made, and in the absence of a fresh reference to the reconstituted Tribunal the proceeding was incompetent. He also urged that the constitution and the appointment of the Tribunal made after March 30, 1959 were invalid. It is unnecessary however to consider the merits of these contentions because the Legislature has remedied the defects, if any, in the constitution of the Tribunal, by enacting the Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959, which was reserved for the consideration of the President of India and has received his assent. By section 2(1) of ' that Act, notwithstanding any judgment, decision or order of any court and notwithstanding any defect or want of form or jurisdiction, the Industrial Tribunal for Rajasthan, constituted under section 7 of the , by Government notification dated the 2nd June, 1953, as amended by order dated the 9th March, 1956, shall, as respects the period commencing on the 10th day of March 1957 and ending with the 15th day of April, 1959, be deemed to have been duly constituted under section 7A of the said Act. By sub section (2) it is provided that notwithstanding any judgment, decision or order of any court all references made to and all proceedings taken and orders passed by the Industrial Tribunal constituted in sub section (1) between the period 10th March., 1957 and 15th April, 1959, shall be deemed respectively to have been made, taken and passed as if the said Tribunal were constituted under section 7A of the Act. It is clear from the validating provisions that the Tribunal originally constituted under section 7 of the , before it was amended by Act 36 Of 1956 is to be deemed to 12 have been duly constituted under s.7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act. The Validating Act is, because of Item 22, List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature, and it was reserved for the consideration of the President and has received his assent. It must by virtue of article 254(2) prevail in the State of Rajasthan. The contentions raised in this appeal must therefore fail. The appeal is dismissed with costs. Appeal dismissed. [/INST]The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month 's notice on either side. He was appointed in June 1949. On August 1954 he was informed that his services would be terminated from September 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him. Certain preliminary enquiries were held against him but he was not heard therein. No regular departmental enquiry however followed and the proceedings were dropped. Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified. He prayed in the suit for a declaration that the termination of his service was illegal. He also claimed arrears of salary. The trial Court dismissed the suit and he appealed to the High Court 191 without success. The present appeal was filed on a certificate granted by the High Court. The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 did not apply to him. Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16. It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution. : (i) Sub cls. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service. The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl. (2) of r. 3. This being the position, since no declaration has been made in his case, the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service. Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service. B.M. Pandit vs Union of India, A.I.R. 1962 Bom. 45, Purshottarn Lal Dhingra vs Union of India, ; and K.S. Srinivasan vs Union of India, ; , distinguished. (ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16. The classification of Government servants into permanent, quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory. (iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease, on the ground that his conduct is not satisfactory there cannot be any question of any discrimination. The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected. (iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants, if the Government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank. purshottam Lal Dhingra vs Union of India, ; Held, that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2). Such a preliminary enquiry may even be held ex parte. It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311. Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India, ; , explained. Held, that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him. Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action, it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory. Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689. State of Orissa vs Ram Narayan Das, ; and, Jagdish Mitter vs Union of India, A.I.R. distinguished. </s>

<s>[INST] Summarize the judgementCriminal Appeal No. 149/1958. Appeal from the judgment and order dated October 27, 1958, of the Allahabad High Court in Criminal Appeal No. 1154 of 1956. N. C. Chatterjee and R. L. Kohli, for the appellant. G. C. Mathur and C. P. Lal, for the respondent. September 27. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. This is an appeal by Padam Sen and Shekbar Chand against the order of the Allahabad High Court dismissing their appeal against the order of the Special Judge, Meerut, convicting them of an offence under section 165 A of the Indian Penal Code. The High Court granted leave to appeal against its order. One Genda Mal, father of Shekhar Chand, appellant No. 2, sued Mithan Lal and others in the Court of the Additional Munsif, Ghaziabad, for money on the basis of promissory notes executed by the defendants in his favour. The defendants apprehending that the plaintiff would fabricate his books of account with respect to payments made by them, applied for the seizure of the account books of the plaintiff. The Additional Munsif, by his order dated March 27, 1954, appointed Sri Raghubir Pershad, Vakil, Commissioner to seize those books of account. The Commissioner accordingly seized those books and brought them to Ghaziabad. The appellants were convicted by the Special Judge under section 165 A of the Indian Penal Code for having offered bribe to the Commissioner for being allowed an opportunity to tamper with those books of account. Their conviction was upheld by the High Court. The two Courts below have found that the appellants went to the Commissioner 's Office on March 30, 1954, and offered him Rs. 900 as bribe. The appellants do not challenge these findings of fact recorded by the Courts below. Their only contention is that 113 886 Sri Raghubir Pershad, the Commissioner, was not a public servant, and therefore even on the basis of the findings of fact arrived at by the Courts below, they did not commit any offence under section 165 A of the Indian Penal Code. It has been contended for the appellants that the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no power to appoint a Commissioner for the purpose of seizing the account books of the plaintiff on an application b application by the defendants, the power of a Civil Court to issue a commission being limited by the provisions of section 75 and Order XXVI of the Code of Civil Procedure (hereinafter called the Code), and the Court having no inherent power to appoint a Commissioner for any purpose not mentioned in section 75 and Order XXVI of the Code. On behalf of the State it is urged that the Court can appoint a Commissioner in the exercise of its inherent powers saved by section 151 of the Code for purposes which do not come within the provisions of section 75 and Order XXVI of the Code. It is further submitted for the State that even if the Additional Munsif had no power to appoint the Commissioner for seizing the books of account, Sri Raghubir Pershad would be deemed to be a public servant in view of Explanation 2 to section 21 of the Indian Penal Code because he was in actual possession of the situation of a public servant for he acted as Commissioner and was recognized as such by the appellants and others connected with the civil suit. Section 75 of the Code empowers the Court to issue a commission, subject to conditions and limitations which may be prescribed, for four purposes, viz., for examining any person, for making a local investigation, for examining or adjusting accounts and for making a partition. Order XXVI lays down rules relating to the issue of commissions and allied matters. Mr. Chatterjee, learned counsel for the appellants, has submitted that the powers of a Court must be found within the four corners of the Code and that when the Code has expressly dealt with the subject matter of commissions in section 75 the Court cannot 887 invoke its inherent powers under section 151 and thereby add to its powers. On the other hand, it is submitted for the State, that the Code is not exhaustive and the Court, in the exercise of its inherent powers, can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court considers it necessary, for the ends of justice or to prevent abuse of the process of the Court. Section 151 of the Code reads: " Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court ". The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the puposes mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff 's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice 888 and procedure. A party has full rights over its books of account. The Court has no inherent power forcibly to seize its property. If it does so, it invades the private rights of the party. Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence. A party is free to produce such documents or books in support of its case as be relevant. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession. If a party does not produce the documents it is lawfully called upon to produce, the Court has the power to penalize it, in accordance with the provisions of the Code. The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession, especially after it has been summoned from it. Even in such cases where the Court summons a document from a party, the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party. The defendants had no rights to these account books. They could not lay any claim to them. They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court. The defendants ' request really amounted to the Court 's collecting documentary evidence which the defendants considered to be in their favour at that point of time. it is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac. count books. If the plaintiff does forge entries and uses forged entries as evidence in the case, the defendants would have ample opportunity to dispute those entries and to prove them forgeries. We are therefore of opinion that the Additional Munsif bad DO inherent power to pass the order appointing a Commissioner to seize the plaintiff 's 889 account books. The order appointing Sri Raghubir Pershad as Commissioner for this purpose was therefore an order passed without jurisdiction and was therefore a null and void order. Learned counsel for the State, Mr. Mathur, has submitted in the alternative that the impugned procedure adopted by the Additional Munsif comes within certain provisions of the Code and has referred to r. 5 of Order XXXVIII and rr. 1(b) and 7 of Order XXXIX and r. 1 of Order XL of the Code. We do not agree with this contention. The impugned order was not passed under any of these provisions. It was clearly an order which the Additional Munsif purported to pass in the exercise of the inherent powers of the Court. The order was: " It is strange that an application of this kind has been made at this late stage, after over 2 years. However, in the interests of justice, issue commission to Sri Raghubir Pershad. Ho must go and recover Bahi Khatas for the year 1951 from the plaintiff and produce the same in Court. Fees Rs. 20, plus T. A. Report within six days. Costs of the commission will not be taxed. " Further, the provisions of r. 5 of Order XXXVIII are to prevent a decree that may be passed being rendered infructuous and r. 1(b) of Order XXXIX is applicable where the defendant threatens to dispose of his property to defraud creditors. None of these provisions has any application to the facts of the present case. Rule 7 of Order XXXIX empowers the Court, on the application of any party to a suit, to make an order for the detention, preservation or inspection of any property which is the subject matter of such suit or as to which any question may arise therein. The account books of the plaintiffs were not ' property ' which were the subject matter of the suit nor such that about them a question could arise in the suit. The account books could, at best, have been piece of evidence, if the plaintiff or the defendant had cared to rely on them. We therefore hold that the Additional Munsif had no power under the Code to appoint the Commissioner for seizing the plaintiff 's books of account. 890 Lastly it was urged for the State that even if the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff, Sri Raghubir Pershad should be treated to be a 'public servant ' in view of Explanation 2 to section 21 of the Indian Penal Code. It has not been disputed for the appellant that if the appointment Of Sri Raghubir Pershad as Commissioner bad been valid, he would have been a public servant in view of the Fourth Clause to section 21 of the Indian Penal Code. Explanation 2 to section 21 reads: "Wherever the words 'public servant ' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. " The contention for the State is that though there was a legal defect in Sri Raghubir Pershad 's appointment as Commissioner on account of the Additional Munsif having no power to appoint a Commissioner for the purpose of seizing the plaintiff 's books of account, that will not affect his being a public servant as he was in actual possession of the situation of a public servant. We do not agree with this contention, and are of opinion that the Explanation applies only when there be a post in existence. The Explanation does not apply when there is no pre existing post or when the person appointing has no authority to appoint. The word 'situation ' according to Webster 's New International Dictionary of the English Language, means: position or place of employment, place, office; as a situation in a store. The apposite meaning for the purposes of this Explanation would be 'office '. 'Office ' again, according to the same Dictionary, means a special duty, trust, charge or position, conferred by an exercise of governmental authority and for a public purpose ; a position of trust or authority conferred by an act of governmental power ; a right to exercise a public function or employment and receive the emoluments (if any) thereto belonging; as, an executive or judicial office. . In a wider sense, any position or place in the employment of the 891 government, especially one of trust or authority. The Dictionary further notes the differences in the con. notations of the various words office, post, appointment, situation and place and says: Office commonly suggests a position of (especially public) trust or authority ; and situation emphasizes the idea of employment, especially in a subordinate position; as, to seek a situation as governess, as private secretary. It is therefore clear that it is necessary for the application of this Explanation that the person concerned should be in actual possession of the pre existing office of a public servant. If there be no office or post, there could be no question of any person 's being in actual possession thereof, and of the person concerned coming within the terms of this Explanation. There was no post or office of a Commissioner in existence. All that happened here was that Sri Raghubir Pershad was authorized to seize and keep certain documents in his possession. In the present case there was neither any existing office of Commissioner, nor the Additional Munsif had power to appoint Sri Raghubir Pershad as Commissioner for the purpose of seizing the plaintiff 's account books and therefore this Explanation does not apply to the appointment of Sri Raghubir Pershad as Commissioner. It follows, there. fore, that Sri Raghubir Persbad cannot be held to be a public servant. We therefore accept the contention for the appellants and hold that Sri Raghubir Pershad was not a public servant and that therefore the appellants did not commit any offence under section 165 A of the Indian Penal Code by their offering him money in order to have an opportunity to tamper with the books of account which were in his custody. We therefore allow the appeal, set aside the order of the Court below and acquit the appellants of the offence under section 165 A and direct that the fine, if paid, be refunded. The appellants are on bail and therefore the bail bonds will be cancelled. Appeal allowed. [/INST]The appellant, a non resident for the purposes of the Indian Income tax Act, did not submit returns of certain dividend income accruing to him within the taxable territory. The Income tax Officer served upon him notices under section 34 read with section 22(2) of the Act for assessment of tax in respect of those years. The notices in question were issued within eight years from the end of the years of assessment and were within the period prescribed by section 34(i)(a). The appellant contended that notices for assessment were governed by cl. (i)(b) of section 34 and not by cl. (i)(a), even though the appellant had not made a return of his income for the years in question as a general notice under section 22(1) did not give rise to a liability to submit a return and his inaction did not amount to omission or failure to submit a return as he was a non resident, and the assessment proceedings were barred by limitation. Held, that the expression "every person " in section 22 (1) of the Indian Income tax Act, 1922, includes all persons who are liable to pay tax and non residents are not exempted from liability to submit a return pursuant to the general notice thereunder. Once a notice is given by publication in the prescribed manner under section 22(i), every person whether resident or non resident whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, 36 it will be deemed that there was omission on his part to make a return within the meaning of section 34(i)(a) of the Indian Income tax Act. Section 34(1)(b) applied only to those cases where there was no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment. In the instant case the proceedings for assessment were pro perly commenced within the period of limitation prescribed by section 34(1)(a). </s>

<s>[INST] Summarize the judgement: Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990. From the Judgment and Order dated 27.10.1989 of the Designated Court/Judge at Jalgaon in Crl. Appln. No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl. Appln. No. 357 of 1989. WITH Special Leave Petition (Crl.) No. 2459 of 1989. From the Judgment and Order dated 15.11.1989 of the Bombay High Court in Crl. Appln. No. 687 of 1989. Appellant in person in Crl. A. No. 703 of 1990. B.A. Masodkar, U.R. Lalit and G.B. Sathe for the Appel lant Petitioners. V.N. Patii and A.S. Bhasme for the Respondents. S.K. Pasi for the Intervenor. The Judgment of the Court was delivered by AHMADI, J. These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave 637 petition under Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act '), Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under: On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor cycle at about 3.00 p.m. they were intercepted by the accused Jiten dra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver 's seat aban doned the motor cycle and ran in another direction. Two of the accused persons ran after Raju while the others includ ing the wrestler chased Keshav. On being over taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron rod. Thereafter all the three fled from the scene of occurrence. The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road. Both the injured were removed to the hospital. Raju suc cumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence. On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis there of an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd Septem ber, 1989 which took the view that Section 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89. As the accused were directed to approach the regular court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmad 638 nagar. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge sheet against the accused in the Designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the Designated Court for bail. The Designated Court once again came to the conclusion that, in the facts and circumstances of the case, Section 3 of the Act had no application and discharged the accused on that count under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code '). By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that court for bail. Against the said order Criminal Appeal No. 703/89 has been preferred by Raju 's father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special leave petition No. 2459/ 89 is preferred by the original accused against the said order. The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. Section 2(d) defines the expression 'disruptive activity ' to have the meaning assigned to it in section 4. Section 2(h) defines the expression 'terrorist act ' to have the meaning assigned to it under section 3(1) of the Act. The relevant part of Section 3(1) provides that whoever, with intent (i) to overawe the Government as by law estab lished or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/or injuries to any person or persons, commits a terrorist act. Section 3(2) lays down the penalty for the commission of such an act. Section 4(1) prescribes the penalty for indulging in any disruptive activity. Sec tion 4(2) defines a disruptive activity to mean any action taken in whatever manner (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Section 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III of the Act creates the machinery for trying 639 terrorists and disruptionists charged with the commission of any offence under the Act. Section 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification. Section 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court constituted under Section 9(1) of the Act. Section 12(1) is relevant for our purpose and reads as under: "When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is con nected with such other offence. " Section 14 sets out the procedure and powers of Designated Courts. Sub section 3 of the Section 14 is relevant for our purpose. It reads as under: "Subject to other provisions of this Act. Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions. " Section 16 offers protection to witnesses. Section 17 gives procedence to trials by Designated Courts. Section 18 empow ers the Designated Courts to transfer cases to regular Courts. This Section reads as under: "Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such of fence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. " Section 19 provides for an appeal to the Supreme Court both on facts 640 and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. Section 20(1) makes an offence under the Act or the rules, a cognizable one. Sub section (8) of section 20 lays down that notwith standing anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Section 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has commit ted an offence under Section 3(1) if one of the four things set out in clauses (a) to (d), is proved. Section 22 permits identification of the offender on the basis of his photo graph. Section 28 empowers the Central Government to make rules on any of the matters set out in clauses (a) to (f) of sub section (2) thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act. Under Section 14(3) of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act 'as if it were ' a Court of Sessions. The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions. This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail. The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code. Section 225 places the public prosecutor in charge of the conduct of the prosecution. Section 226 requires him to open the prosecu tion case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused. Once that is done the Judge has to consider whether or not to frame a charge. Section 227 of the Code reads as under: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub . missions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. " 641 Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is framed the trial must ordinari ly end in the conviction or acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code. Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration ' of the record and documents he considers 'that there is not suffi cient ground ' for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused. It must be remembered that this section was intro duced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure. The next question is what is the scope and ambit of the 'consideration ' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the con clusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evi dence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar vs Ramesh Singh, ; this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for 642 proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India vs Prafulla Kumar Samal & Anr., ; , this Court after considering the scope of section 227 observed that the words 'no sufficient ground for proceeding against the accused ' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judi cial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredi ents constituting the said offence. After considering the case law on the subject, this Court deduced as under: "(1) That the Judge while considering the question of fram ing the charges under section 227 of the Code has the un doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code of Judge which (sic) under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth piece of the prosecution, but has to con 643 sider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. " Again in Supdt. & Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja & Ors., ; this Court observed in paragraph 18 of the Judgment as under: "The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or other wise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence". From the above discussion it seems well settled that at the Sections 227 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional state ments made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub section (1) of Section 21. Provision is also made in regard to the identification of an accused who is not traced through photographs. These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism. These provi sions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effec tive to deal with the special class of offenders indulging in 644 terrorist and disruptive activities. There can, therefore, be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strict ly construed. In Usmanbhai Dawoodbhai Memon & Ors. vs State of Gujarat, ; this Court in paragraph 15 of the judgment observed as under: "The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the govern ment 's law enforcing machinery fails. " To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and con trolled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activi ties that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute pro vides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordi nary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether 645 or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him. We may now proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assem bly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people ' i.e. the residents of the locality, by the use of lethal weapons such as knives and iron rods and thereby committed offences punishable under Section 3(1) of the Act read with the offences under the Penal Code and the Bombay Police Act. When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence under section 3(1) of the Act was registered. The offence under section 3(1) of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Inves tigating Officer collected evidence which enabled him to register an offence under section 3(1) of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie section 3(1) of the Act had no application. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prose cution case that section 3(1) of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured. At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under: "Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would not be any rival to us in this town. Upon commission of murder of Raju and Keshav on account of tenor the people would be scared. " This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and 646 no one will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs. Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to the conclusion that the material placed before it and the statements re corded by the Investigating Officer did not disclose the commission of an offence under Section 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding over the Designated Court then proceeds to add as under: "True it is that few people might have been terror striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror striken, it is those few people who live by the crime and not the people law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld." The learned Judge also came to the conclusion that there was nothing on record to show that the Government 's law enforc ing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism. We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence under section 3(1) of the Act. We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act. That may indeed 647 be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the inten tion of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain suprema cy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining suprema cy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commis sion of the offence punishable under section 3(1) of the Act. It was next contended by the learned counsel for the State of Maharashtra that under section 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident. Section 12(.1) no doubt empow ers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter. That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused under sec tion 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, 648 transfer the case for the trial of such offence to any court having jurisdiction under the Code. Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the con clusion that the evidence was not sufficient to frame a charge under section 3(1) of the Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent court under the Code. We, there fore, do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out under section 3(1) of the Act, it was duty bound by virtue of section 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act. We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act. Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems. We do not con sider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in coming to the conclusion that this was a case of inter gang rivalry not attracting Section 3(1) of the Act. In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court 's order refusing bail. In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as not pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court 's order. T.N.A. Petition disposed of. [/INST]The petitioner joined as a primary teacher in 1952 in an aided recognised school. She was making contribution towards compulsory provident fund. In 1975, the Delhi Administra tion, in consultation with the Accountant General, Central Revenue, issued a notification under Rule 126 of the Delhi School Education Rules, 1973, laying down detailed procedure for disbursement of pension and gratuity as also accounting of General Provident Fund in respect of the employees of aided schools. The petitioner opted for the aforesaid scheme in 1976, which was duly counter signed by the Education Officer. After the petitioner retired in 1977, she made a number of representations to the authorities concerned for payment of pension and gratuity. She got a reply in 1987 that her case had been referred to the Government for policy deci sion. Ultimately, Delhi Administration promulgated the pension scheme in the primary aided schools on and effective from 6th December, 1988. The petitioner in her Writ Petition before this Court relied on the scheme announced by the Delhi Administration and the option exercised by her. She claimed that to deprive her of the pension and gratuity under the said scheme was without any justification. On behalf of the respondents it was contended that the scheme was brought into force only in 1988 by the said notification whereby the modalities for grant in aid to the local authorities were finalised and since the petitioner retired from service in 1977, she was not entitled to pen sion prior to the said notification. Allowing the Writ Petition, this Court, HELD: 1. The school in which the petitioner was working was an 754 aided school within the meaning of section 2(d) of the Delhi Education Act and its employees were entitled to the bene fits conferred by the notification dated 17th October, 1975. [757B C] 2. Since the Central Civil Services (Pension) Rules, 1972 would apply to the petitioner as contemplated by noti fication dated 17th October, 1975, she is obviously entitled to get pension with effect from the date on which she ceased to be borne on the establishment. of the school in which she was working consequent upon reaching the age of superannua tion. [757F G] 3. The said notification having been issued by the competent authority and the petitioner, who was an existing employee of an aided school on the date of the issue of the said notification, having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly countersigned by the Education Officer, she obviously became entitled to the benefits conferred by the said notification. This is so all the more in view of the fact that the notification dated 17th October, 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification. The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October, 1975. Such finalisation could not even defer the date of the entitlement. [758A C] 4. The respondents are directed to pay to the petitioner pension admissible to her in pursuance of the notification dated 17th October, 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits. They are further directed to finalise the requi site formalities in this behalf within three mouths and to issue payment orders immediately thereafter. [758H; 759A B] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1499 of 1985. From the Judgment and order dated 18.9.84 of the High Court of Himachal Pradesh in C.W.P. No. 155/84. K. Parasaran , Attorney General. A. K. Ganguli and A.K Chakravorty , for the Appellant. The Judgment of the Court was delivered by BHAGWATI , J. This appeal by special leave is directed against 679 two orders made by a division Bench of the High Court of Himachal Pradesh , one dated 24th July , 1984 and the other dated 18 September 1984 , in so far as they direct the Chief Secretary to the Government of Himachal Pradesh to file an affidavit setting out what action has been taken by the State Government towards implementation of the recommendation contained in paragraph 16 of the Report of the Anti Ragging Committee. The impugned orders are in our opinion wholly unsustainable and ordinarily we would not have taken time to deliver a reasoned judgment and merely set aside the impugned orders with a brief observation, but we think it necessary to state in some detail our opinion in regard to the directions given in the impugned orders , because we find that this is one of those few cases which demonstrates what we have often said before that public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the legislature. D It appears that the Chief Justice of the High Court received a letter dated 4th April , 1984 , from the guardian of a student of the Medical College in Shimla complaining about the ragging of freshers by senior students within as also outside the college campus and the hostel. The guardian of the student had annexed along with his letter to the Chief Justice a letter dated 25th March, 1984 received by him from his son. The Division Bench of the High Court presided over by the Chief Justice treated these two letters as constituting the Memo of Writ Petition but directed that these two letters should not be placed on the record of the proceedings in view of the request made in paragraph 6 of the letter of the guardian that the identity of the writer should not be disclosed on account of fear of reprisal and for the self same reason the Division Bench ordered that the identity of the student and the guardian should not be disclosed in the proceedings. The Division Bench treating the two letters as a writ petition registered them as Civil Writ Petition No. 155 of 1984 and issued notice to the State Government , the Principal of the Medical College Simla , the Himachal Pradesh University and the Director of Health Services , Government of Himachal Pradesh who were arrayed as respondents Nos. 1 to 4. On receipt of the notice of the Writ Petition , the Government of Himachal Pradesh filed an affidavit setting out the steps which the H 680 State Government and the college authorities had taken to check the ragging of freshers by senior students. The Director of Medical Education cum Principal of the Medical College , Simla also filed an affidavit opposing the admission of the Writ Petition on the ground that the college authorities had taken various steps for the purpose of curbing the evil of ragging and in fact had taken action On at least two occasions awarding punishment to the students who indulged in ragging by suspending them for a period of 4 to 6 months , The Division Bench , on a consideration of this material placed before it , came to the conclusion that the practice of ragging was prevailing in the Medical College , Simla on a noticeable scale and that ragging took the form of subjecting freshers including female students to inhuman and humiliating treatment degenerating even into physical violence and that the college authorities had not been able to effectively control ragging with the result that the college administration had lost confidence of a sizeable section of student , parents and well wishers as regards its capacity to deal with the problem of ragging. The Division Bench accordingly gave various directions which included a direction to the State Government to constitute a committee consisting of the Vice Chancellor of the Himachal Pradesh University and the Secretary to the Government , Health Department , interalia , to make "recommendations in regard to the curative, preventive and punitive measures to be adopted by the college authorities to control and curb the evil of ragging and the machinery to be set up to enforce these measures. " This Committee which we shall for the sake of convenience refer to as the Anti Ragging Committee , was to complete its work and submit its report within a period of six months from the date of its constitution. The Anti Ragging Committee submitted its Report to the High Court on 26th June , 1984. The Report contained various recommendations intended to control and curb the ragging of freshers by senior students in the Medical College and its hostel. We are concerned here with only one recommendation namely that contained in paragraph 16 of the Report which was in the following terms: "In quite a number of States in the country there are Acts on ragging which make ragging a cognizable offence 681 and prescribe the types of punishment commensurate with the crimes committed. The Himachal Pradesh Government could be suggested to initiate such a legislation as early as possible. Pending such a legislation by the State Government, the University authorities could think of incorporating some provisions relating to ragging in the relevant ordinance of Discipline in the Ordinance of the University. The Division Bench by its order dated 24th July, 1984 gave directions for implementation of the various recommendations made in the Report and so far as recommendation contained in paragraph 16 of the Report was concerned, the Division Bench said: "The Chief Secretary to the State Government will file an affidavit within a period of 3 months from the date of receipt of the writ setting out the action proposed to be taken on the recommendation contained in paragraph 16 (First Part) of the relevant portion of the Report." Though this direction ostensibly did no more than call upon the Chief Secretary to inform the Court as to what action the State Government proposed to take on the recommendations to initiate legislation for curbing ragging, it was, in fact and substance, intended to require the State Government to Initiate legislation on the subject. If this direction were merely an innocuous one intended to inform the court whether the State Government intended to take any action on the recommendation to initiate legislation against ragging, no objection could possibly be taken against it, because it would leave the Government free to decide whether or not to initiate legislation in regard to ragging without mandatorily requiring the State Government to do so But as the subsequent event would show, what the Division Bench intended to achieve by giving this direction was not just to obtain information as to what the State Government proposed to do in the matter but to actually require the State Government to initiate legislation against ragging. That is why, when the Chief Secretary in deference to this direction filed an affidavit stating, inter alia, that the State Government had "taken notice of the recommendation to initiate legislation in this behalf, if found necessary and so advised", the Division Bench was not satisfied with this statement of the Chief Secretary and declined to close the proceeding so far as this particular aspect was concerned and proceeded, inter alia, to reiterate in its order dated 1 8th September 1984: 682 "The Chief Secretary to the State Government will file an affidavit within a period of 6 weeks from the date of receipt of the Writ setting out the further action taken in the direction of the implementation of the recommendation contained in paragraph 16 (First Part) of the relevant portion of the Report of the Anti Ragging Committee. " When this direction was given by the Division Bench, it clearly implied that what the Division Bench wanted the State Government to do was to initiate legislation against ragging and for this purpose, time of 6 weeks was granted to the State Government The State Government thereupon preferred the present appeal with special leave obtained from this Court. We may point out, even at the cost of repetition, that the direction given by the Division Bench in its order dated 24th July 1984 and reiterated in its order dated 18th September 1984 was not an innocuous direction issued merely for the purpose, of informing the Court as to what the State Governing proposed to do in regard to the recommendation in paragraph 16 of the Report to initiate legislation against ragging. The Division Bench would have been certainly justified in enquiring from the Chief Secretary as to what action the State Government proposed to take in regard to the recommendation of the Anti Ragging Committee to initiate legislation on the subject of ragging. Such enquiry could have been legitimately made by the Division Bench for the purpose of obtaining information on a matter which the Division Bench regarded, and in our opinion rightly, as necessary for eradicating the evil practice of ragging which is not only subversive of human dignity but also prejudicially affects the interests of the students and the discipline in the Campus and no exception could have been taken to it because it would have left the State Government free to decide whether or not to initiate any legislation on the subject and not mandatorily required the State Government to initiate any such legislation. If such only were the purpose of the direction issued by the Division Bench and the Division Bench did not intend anything more, the Division Bench would have closed the proceedings when the Chief Secretary intimated in his affidavit that the State Government would initiate legislation in this behalf "if found necessary and so advised". But despite this statement made by 683 the Chief Secretary on behalf of the State Government, the Division Bench persisted in reiterating its direction that the Chief Secretary should file an affidavit within a further period of 6 weeks setting out the further action taken by the State Government in the direction of implementation of the recommendation contained in paragraph 16 of the Report. This persistence in reiterating the direction to file an affidavit setting out the action taken by the State Government towards implementation of the recommendation to initiate legislation against ragging, clearly shows that what the Division Bench intended was not merely to obtain information as to what action the State Government proposed to take but to obligate the State Government to take action by way of initiation of legislation against ragging. The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. This the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable the Court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution. If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains public interest litigation. Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the under privileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the Court certainly can and must 684 intervene and compel the Executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economic rights. When the Court passes any orders in public interest litigation, the Court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large numbers of half clad, half hungry people of this country. That is a feeling which should never be allowed to grow. But at the same time the Court cannot group the function assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature We are, therefore of the vie that the Division Bench was clearly in error in issuing a direction to the Chief Secretary to file an affidavit within 6 weeks setting out the action taken by the State Government with a view to implementing the recommendation contained in paragraph 16 of the Report. There is also one other error into which the Division Bench of the High Court seems to have fallen. The Division Bench of the High Court treated the letter of the guardian of the student along with the letter addressed to the guardian by the student as constituting a memo of Writ Petition. This was certainly within the jurisdiction of the High Court to do, since it is now settled law that this Court under Article 32 of the Constitution and the High Courts under Article 226 of the Constitution can treat a letter as a Writ Petition and take action upon it. We may of course make it clear that it is not every letter which may be treated as a Writ Petition by the Supreme Court or the High Court. It is only there a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or sociallity 685 or economically disadvantaged position find it difficult to approach the court for redress that the Supreme Court or the High Court would be justified, nay bound, to treat the letter as a Writ Petition. There may also be cases where even letter addressed for redressal of a wrong done to an individual may be treated as a Writ Petition where the Supreme Court or the High Court considers it expedient to do so in the interests of justice. This is an innovative strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public spirited individuals and social action groups for combating exploitation and injustice and securing for the under privileged segments of society their social and economic entitlements. It is a highly effective weapon in the Armour of the law for reaching social justice. : to the common man. The Division Bench was, therefore, certainly right in entertaining the two letters as a Writ Petition and no exception can be taken to it, but it was wholly in error in directing that these two letters on which the Division Bench acted should not be placed on the record of the proceedings and the identity of the guardian and the student should not be disclosed It is difficult to see how any proceedings can be entertained by the Court keeping the petitioner before it anonymous or his identity secret. If the identity of the petitioner is not disclosed, how would the respondent against whom relief is sought ever he able to verify the authenticity of the petitioner and the credibility of the case brought by him. It would be contrary to all canons of fair play and violative of all principles of judicial propriety and administration to entertain a Writ Petition without disclosing the identity of the petitioner, though the court knows who the petitioner is. We are, therefore, of the opinion that the procedure adopted by the Division Bench was wrong and the Division Bench was not justified in directing that the two letters on which action was initiated by the Division Bench should not be kept in the record of the proceedings and that the identity of the guardian and the student should not be disclosed. We accordingly allow the appeal and set aside the orders dated 24th July, 1984 and 18th September, 1984 in so far as they direct the Chief Secretary to file an affidavit setting out the action taken by the State Government in implementing the recommendation contained in paragraph 16 of the Report of the Anti ragging Committee. There will be no order as to costs of the appeal. N.V.K. Appeal allowed. [/INST]The Chief Justice of the High Court received a letter from the guardian of a student of the Medical College in Simla complaining about the ragging of freshers by senior students within as also outside the college campus and the hostel. The guardian of the student had annexed along with the said letter to the Chief Justice , a letter received by him from his son. The Division Bench of the High Court presided over by the Chief Justice treated these two letters as constituting the Memo of Writ Petition , but directed that these two letters should not be placed on the record of the proceeding in view of the request made by the guardian that the identity of the writer should not be disclosed in the proceedings. The Division Bench registered the two letters as a Writ Petition , and issued notice to the State Government, and the Principal of the Medical College. After bearing the respondents the Division Bench came to the conclusion that the practice of ragging was prevalent in the Medical College on a noticeable scale and that ragging took the form of subjecting freshers including female students to inhuman and humiliating treatment degenerating even into physical violence 677 and that the college authorities had not been able to effectively control such ragging. It gave various directions which included a direction to the State Government to constitute a Committee Anti Ragging Committee to go into the question and make recommendations in regard to the curative , preventive and punitive measures to be adopted by the college authorities to control and curb the evil of ragging. Anti Ragging Committee recommended that the State Government could initiate legislation which makes ragging a cognizable offence an l prescribe punishment commensurate with the crimes committed. When the matter was taken up again for hearing the Division Bench directed the State Government to file an affidavit indicating the action taken on the Report. An affidavit to the effect that the State Government had 'taken notice of the recommendations to initiate legislation this behalf if found necessary and so advised," was filed on behalf of the State Government. The Division Bench further directed the State Government to initiate legislation against ragging and for this purpose granted the State Government 6 weeks ' time. In the appeal by the State , to this Court it was contended that the Court could not give directions to the State Government to initiate legislation on ragging Allowing the Appeal. ^ HELD. The Division Bench was clearly in error in issuing a direction to the Chief Secretary to file an affidavit within 6 weeks setting out the action taken by the State Government with a view to implementing the Committee 's recommendation. [684] 2. The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging. [683C] 3. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. But the Court certainly cannot mandate the executive or any member of the legislature to initiate legislation , howsoever necessary or desirable the Court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution. [683E F] 4. If the executive is not carrying out any duty laid upon it by the Constitution or the law , the Court can certainly require the executive to carry out such duty and this is precisely that the Court does when it entertains public interest litigation. [683F] 678 section When the Court passes any orders in public interest litigation , the Court does so not with a view to mocking at legislative or exhaustive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law , because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the Constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large number of half clad half hungry people of this country. [684B C] 6. It is now settled law that this Court under Article 32 , and the High Courts under Article 226 , can treat a letter as a Writ Petition and take action upon it. It is not every letter which may be treated as a Writ Petition by the Supreme Court or the High Court. It is on , y where a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a persons who by reason of poverty , disability or socially or economically disadvantaged position find it difficult to approach the court for redress that the Supreme Court or the High Court would be justified , nay bound , to treat the letter as a Writ Petition. There may also be cases where even a letter addressed for redressal of a wrong done to an individual may be treated as a Writ Petition where the Supreme Court or the High Court considers it expedient to do so in interests of justice. This is an innovative strategy which has been evolved by the Supreme Court. It is a highly effective weapon in the armoury of the law for reaching social justice to the common man. [684G H; 685A C] 7. The Division Bench was , certainly right in entertaining the two letters as a Writ Petition , but it was wholly in error in directing that these two letters on which the Division Bench acted should not be placed on the record of the proceedings and the identity of the guardian and the student should not be , disclosed. It would be contrary to all canons of fair play and violative of all principles of judicial propriety and administration to entertain a Writ Petition without disclosing the identity of the petitioner, though the court , knows who the petitioner is. [685D F] </s>

<s>[INST] Summarize the judgementhe notification dated February 8 , 1984 issued by the State Government under section 52 ( 1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52 (2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued under section 52 (1). If the respondents felt aggrieved by the acquisition of their lands at Jaipur and wanted to challenge the validity of the impugned notification issued by the State Government of Rajasthan under section 52 (1) , by a petition under article 226 , the remedy of the respondents to file such a petition lay before the Rajasthan High Court Jaipur Bench , where the cause of action wholly or in part arose. [605F H; 606A] & CIVIL APPELLATE JURISDICTION: Civil Appeal NO. 2085 Of 1985. From the Judgment and Order dated 13.3.1984 of the Calcutta High Court in C. P. NO. 5972 (W) of 1984. K Parasaran , Attn. and Badridas Sharma for the Appellants. G.L. Sanghi , Praveen Kumar and Ashok Mathur for the Respondents. The Judgment of the Court was delivered by SEN. , J. The issue involved in this appeal by special leave is: Whether the service of notice under sub section (2) of section 52 of the Rajasthan Urban Improvement Act , 1959 ( 'Act ' for short) served on the respondents at their registered office at 18 B , Brabourne Road , Calcutta by the Special Officer , Town Planning Department , Jaipur was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under article 226 of the Constitution challenging the validity of a notification dated February 8 , 1984 issued by the State Government of Rajasthan under S 5 (21) of the Act for the acquisi 601 tion of certain lands belonging to them required by the Urban Improvement Trust , Jaipur for a public purpose, namely, for implementation of a development scheme viz. Civil Lines Extension Scheme. It is somewhat strange that a learned Single Judge of the Calcutta High Court (R.N.Pyne, J.) should have by his order dated March 13, 1984 entertained a petition under article 226 of the Constitution filed by the respondents , issued a rule nisi thereon requiring the reasons as to why a writ in the nature of mandamus should not be issued directing the appellants herein, the State of Rajasthan, the Jaipur Development Authority, Jaipur and the Land Acquisition Officer, Jaipur to forbear from giving effect to the impugned notification dated February 8, 1984 and passed an ad interim exparte prohibitory order restraining them from taking any steps requiring the respondents under sub section (5) of 52 of the Act to surrender or deliver possession of the lands acquired forthwith or upon their failure to do so to take immediate steps under sub section (6) thereof to secure such possession. We are distressed to find that the learned Single Judge despite a long line of decisions of this Court starting from Siliguri Municipality vs Amalendu Das (1) deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , should have passed the impugned orders in the manner that he did. It seems that the pronouncements of this Court have had little exact on the learned Single Judge. The learned Attorney General appearing for the State of Rajasthan takes serious exception to the authority and jurisdictionof the learned Single Judge to have entertained the writ petition filed by the respondents and issued the rule nisi and to have made the ad interim exparteprohibitory order which virtually has brought the entire acquisition proceedings pending at Jaipur in the State of Rajasthan to a standstill. He contends that the petition filed by the respondents purporting to be under article 226 of the Constitution in the Calcutta High Court and the rule nisi thereon and the ad interim exparte prohibitory order secured by them on the basis of such petition from the learned Single Judge on March 13, 1984 when there was total lack of inherent jurisdiction on the part of (1) ; , 602 the Calcutta High Court to entertain such petition , constitutes a flagrant abuse of the process of the Court. There is , in our opinion considerable force in this submission. The facts of the case are as follows: Messrs Swaika Properties Pvt. Limited, Calcutta owned Khasra No. 383 area 14 bighas 16 biswas situate in village Madrampura on the outskirts of Jaipur city. On June 25, 1975 the Special Officer , Town Planning Department, Jaipur issued a notice under section 52 (2) of the Act at the instance of the Improvement Trust, Jaipur stating that it was proposed by the State Government to acquire the said land admeasuring more or less 44,770 square yards under section 52 (1) of the Act for a public purpose, namely, for the implementation of a development scheme at public expense viz. the Civil Lines Extension Scheme, The said notice was duly served on the respondents and they in compliance therewith appeared before the Special Officer, Town Planning Department, Jaipur and filed their reply dated September 8, 1975. In the reply, the respondents while denying the existence of a public purpose for acquisition of the lands under section 52(1) of the Act asserted that they needed the said land to start new businesses in the State of Rajasthan and for that purpose to utilize the notified land for establishment of a branch office and for construction of residential houses for their Director and other Senior Executives. The Special Officer adjourned the case from time to time and issued several notices to the respondents for personal hearing under section 52 (3) of the Act. The respondents through their representative appeared at each of these hearings and sought adjournment on one pretext or another. Significantly although the respondents participated in the proceedings before the Special Officer, they did not raise any objection as to the power and authority of the State Government of Rajasthan to acquire the notified land under section 52 (1) of the Act or the legality and propriety of the notice issued by the Special Officer under s , 52 (2) or his jurisdiction to proceed with the inquiry under section 52 (3). Nor did the respondents place any material before the Special Officer to show that they really needed the notified land for the purpose of expansion of their business activities to the State of Rajasthan. It is pertinent to observe that the respondents had been shifting their stand before the Special Officer. As already stated , they had in their reply dated September 8, 1975 alleged that they genuinely required the land for starting new businesses in the State , to open a branch office at Jaipur and 603 to construct residential quarters for their Director and other Senior Executives , but at a later stage they alleged that they wanted to construct a Three Star Hotel on the said land. Eventually , the Special Officer by his order April 9 , 1976 held that the alleged need of the respondents was just a pretence and he was satisfied on the material on record that the land was really not needed by them bona fide and their real object was just to get the land released from acquisition on one ground or the other. with these observations he rejected the prayer of the respondents for release of the land and recommended that the entire land be acquired by the State Government under section 52(1) of the Act for the Urban Improvement Trust , Jaipur , and forwarded the papers to the Secretary to the State Government , Town Planning Department , Rajasthan for issue of the requisite notification under section 52 (l) of the Act. It appears from the material on record that the respondents having failed in their effort to get the land released from acquisition then took up the matter with the State Government. They made an application to the State Government on February 10 , 1977 seeking exemption of the notified land under section 20 of the Urban Land (Ceiling & Regulation) Act , 1976 stating that they required the land for construction of a Three Star Hotel. The State Government in the Urban Development & Housing Department by letter dated April 4 , 1977 informed the respondents that there was no possibility of an exemption being granted under section 20 of the Act in their favour allowing them to retain vacant land in excess of 6,000 square yards for the construction of a Three Star Hotel. The State Government stated that the remaining land was required by the Urban Improvement Trust , Jaipur for development of house sites and for construction of two 'Ministers ' bungalows in Civil lines and therefore the proceedings for acquisition of the notified land would not be withdrawn. The State Government required the respondents to submit detailed proposals in respect of 6,000 square yards of land for their proposed Three Star Hotel showing commitments made, financial resources etc. through the Director of Tourism, Rajasthan, Jaipur and were intimated that they would be entitled to retain the said land on payment of the prescribed fee for converting the land use from agriculture to hotel business. Apparently, the respondents were not serious in undertaking the 604 new venture of starting a Three Star Hotel on an area of 6,000 square yards as their real object was to get the notified land released from acquisition. The February 21, 1979, there was a meeting at the Secretariat in the Urban Development & Housing Department between officers of that Department and those of the Urban Improvement Trust, Jaipur. It was clarified on behalf of the Improvement Trust that the notified land in its entirety was needed for implementation of the development scheme of the Trust. The Improvement Trust accordingly by its letter dated March 5, 1979 requested the State Government that necessary orders be passed for acquisition of Khasra No. 383 in village Madrampura admeasuring 14 bighas 16 biswas and a notification to that effect issued under section 52(1) of the Act. It was pointed out that a public notice under section 55(2) of the Act as regards the notified land had already been issued by the Special Officer , Town Planning Department , Jaipur dated June 25 , 1975 , and the necessary procedure as laid down in sub S.(3) thereof followed. As a result of this , the State Government issued the impugned notification dated February 8 , 1984 under section 52(1) Or the Act and the notified land vested in the State Government free from all encumbrances. The State Government in their special leave petition have explained that the notification under section 52(1) of the Act could not be issued till February 8 , 1984 because the Government were primarily thinking of making the land available for construction of residential houses before making provisions for construction of a Three Star or Five Star Hotel but nothing came out of the said proposal as there was no response from the respondents. Upon these facts , we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under article 226 of the Constitution or to make the ad interim exparte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub section (5) of section 52 of the Act the appellants were entitled to require the respondent to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so , take 605 immediate steps to secure such possession under sub section (6) thereof. The expression 'cause of action ' is tersely defined in Mulla 's Code of Civil Procedure: "The 'cause of action ' means every fact which , if traversed , it would be necessary for the plaintiff t y prove in order to support his right to a judgment of the Court. " In other words , it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under section 52(2) of the Act on the respondents at their registered of ice at 18 B , Brabourne Road , Calcutta i.e. within the territorial limits of the State of West Bengal , could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8 , 1984 issued by the State Government under section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer , Town Planning Department , Jaipur under section 52(2) for the grant of an appropriate writ , direction or order under article 226 of the Constitution for quashing the notification issued by the State Government under section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under section 52(1) of the Act by a petition under article 226 of the Constitution , the remedy of the respondents of the grant of such relief had to 606 be sought by filing such a petition before the Rajasthan High Court , Jaipur Bench , where the cause of action wholly or in part arose. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , the learned Single Judge should have passed the impugned ad interim exparte prohibitory order the effect of which , as the learned Attoreny General rightly complains , was virtually to bring to a standstill a development scheme of the Urban Improvement Trust , Jaipur viz. Civil Lines Extension Scheme , irrespective of the fact whether or not the High Court had any territorial jurisdiction to entertain a petition under article 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest. Quite recently , Chinnappa Reddy , J. speaking for the Court in Assistant Collector of Central Excise , West Bengal vs Dunlop India Limited and Ors.(1) administered strong admonition deprecating the practice of the High Court of granting ad interim exparte orders which practically have the effect of the grant of the main relief in the petition under article 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under article 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other particularly in matters relating to public revenue or implementation of various measures and schemes undertaken by the Government or the local authorities for general public benefit. Although the powers of the High Courts under article 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary executive action , nonetheless , the Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an clement of self ordained restraint. We hope (1) [19851 1 S.C.C. 260. 607 and trust that the High Court will determine the extent of its territorial jurisdiction before making such interlocutory orders. In the result , the appeal succeeds and is allowed with costs. The impugned orders passed by the learned Single Judge of the Calcutta High Court dated March 13 , 1984 issuing a rule nisi on the petition filed by the respondents under article 226 of the Constitution and the ad interim exparte prohibitory order made by him are set aside and the proceedings before the Calcutta High Court are quashed. We quantify the costs at Rs. 5,000. N.V.K. Appeal allowed. [/INST]The idol of Gopalji was installed by one Purshottam Lal in his house at Vrindavan, which later became the temple of the deity. The founder who had no issue, performed Seva Puja of the deity so long as he was alive and thereafter it was performed by his wife. By his will exhibit A 2, he dedicated his entire property to the deity, and made his wife the Mohatmim/ Shebait without any power to transfer any property. In accordance with the directions of her husband, the wife adopted the second respondent by a registered deed after performing the necessary religious ceremonies. After the death of the wife, the appellant in the appeal worked as Pujari in the temple with the consent of the second respondent 's guardian and natural father. Later he denied the rights of the second respondent and contended that the founder 's wife executed her last will and testament exhibit A 6 bequeathing her bank deposits, government bonds, household articles, utensils etc. to the appellant to be kept by him in his custody, so long as the second respondent was a minor and to be responsible for the seva puja and raj bhog of the deity and the management of the deity 's properties. A suit was filed by the respondents, for recovery of possession of the idol and temple of Gopalji and for the money lying in deposit with the bank, the zamindari abolition compensation etc. 373 The trial court held the adoption of the second respondent to be duly authorised and valid and found that the founder 's wife had validly executed the will exhibit A 6, but could not transfer the shebaiti rights to the second respondent thereby and that the second respondent had, however become the Mohatmim/Shebait by reason of the adoption, and found that the movable properties and the cash claimed by the appellant under the will were the personal properties of the wife and that the appellant had become entitled to them as a legatee under the will and that the other properties belong to the first respondent Gopal Ji, and decreed the suit in part. In the appeal by the appellant, and the cross objections filed by the second respondent, the additional district judge found that as the adoption was without the authority of the husband to adopt, it was invalid in law and following this Courts ' decision in K.K. Ganguli v Pama Banerjee, AIR held that the second respondent had not become shebait under the will and allowed the appeal and dismissed the corss objections and the suit in full. In the second appeal, the High Court following this Courts ' decision in Angurbala Mullick vs Debabrata Mullick, [1951] 2 S.C R. 1125 that shebaiti is heritabal property, held shebaiti is property & found that no restriction had been placed in the will of the founder in regard to the shebaiti, and therefore the wife had succeeded to the limited right of shebait as the heir of her husband and it became enlarged into an absolute right under section 14(1) of the and that as there was on other heir or successor to the founder, the wife 's appointment of the second respondent as the shebait under her will exhibit A 6 was valid in law. The second appeal was accordingly allowed in part except in respect of certain items enumerated in the plaint, and cash in fixed deposit with a bank. Dismissing the appeal, to this Court. , ^ HELD: (Per Varadarajan J.) 1. The text of Hindu Law and the two decisions of this Court in Profulla Choronl Requittee vs Salya Chornal Requittee and Ram Rattan vs Bajrang Lal Angurbala Mullick vs Debabrata Mullick, [1951] 2 S,C R 1125 show that shebait ship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder had not disposed of the shebaiti right in the endowment created by him. [382B C] In the instant case, the founder (Purshottam Lal) had not made any disposition regarding shebaiti right in his will, exhibit A 2 dated 14 4 1944 where by he created the endowment. No custom or usage to the contrary had been pleaded. Therefore, the widow (Asharfi Devi) had succeeded to the shebaiti 374 right held by him on his death as a limited owner and that right had become enlarged into an absolute right by the provisions of Section 14(1) of the and she could transfer that right by a will in favour of a person who is not a non Hindu and who could get the duties of shebait per formed either by himself or by any other suitable person. [382C D] 2. The second respondent has acquired the shebaiti right under the will exhibit A 6. No interference is called for with the judgment of the Single Judge of the High Court in the Second appeal. [382E] (Per Sabyasachi Mukharji J. 'concurring) ' 1. It is well settled that shebaitship is heritable. This Court in Angurbale Mullick vs Debabrata Mullick, 119511 2 S.C.R. 1125 recognised the right of a female to succeed to the religious office of shebaitship in view of the Hindu Women 's Right to Property Act 1937. Section 14(1) of the enlarged the limited right of a Hindu female to the absolute right of the holder. [382H; 383A] In the instant case, the property in the nature of shebaitship devolved on Smt. Asharfi Devi under the will of her husband, Shri Purushottam Lal dated April 14, 1944. This will had not restricted the property in any manner in shebaitship bequeathed to Smt. Asharfi Devi could therefore make a will in respect of shebaitship. [383B C] 2. It is not necessary, to express any opinion on the correctness or otherwise of the views expressed in K.K. Ganguli vs Panna Banerjee, ; </s>

<s>[INST] Summarize the judgementAppeal No. 264 of 1956. Appeal by special leave from the Judgment and Order dated June 29, 1954, of the Bombay High Court in Appeal No. 127 of 1953. A. V. Viswanatha Sastri, Hemendra Shah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for,the Appellant. J. C. Bhatt, C. J. Shah and Naunit Lal, for the Respondent. 1960. November 30. The Judgment of the Court was delivered by SARKAR, J. The appellant is a commission agent and pucca aratiya and has been acting as such for the respondent since November 7, 1951, in the course of which various contracts were made between them in Greater Bombay. On February 26, 1952, two of such contracts were outstanding, one of which was in respect of groundnuts and was a forward contract. In March 1952, disputes arose between the parties as to whether these contracts had been closed, each side making a claim on the other on the basis of its own contention. Eventually, on March 18, 1952, the appellant referred the disputes to arbitration under the arbitration clause contained in the contracts. On October 7, 1952, the arbitrators made one composite award for Rs. 22,529 15 9 against the respondent in respect of the said disputes. It is not very clear whether this award covered other disputes also. This award was duly filed in the Bombay City Civil 99 782 Court under the , for a judgment being passed on it. Thereafter, on July 17, 1953, the respondent made an application to the Bombay City Civil Court for setting aside the award contending that forward contracts in groundnuts were illegal as the making of such contracts was prohibited by the Oilseeds (Forward Contract Prohibition) Order, 1943, issued under the Essential Supplies (Temporary Powers) Act, 1946, and hence the arbitration clause con tained in the forward contract in groundnuts between the parties was null and void. It was said that the award based on that arbitration clause was therefore a nullity. The appellant 's answer to this contention was that the Essential Supplies (Temporary Powers) Act did not apply to Greater Bombay where forward contracts were governed by the Bombay Forward Contracts Control Act, 1947, hereafter called the Bombay Act, and as the contract in groundnuts had been made in terms of that Act, it was legal, and, therefore, the award in terms of the arbitration clause contained in it was a valid and enforceable award. The learned Principal Judge of the Bombay City Civil Court accepted the respondent 's contention and set aside the award. An appeal by the appellant to the High Court at Bombay against the judgment of the City Civil Court failed. The appellant has now come to this Court in further appeal. The only question in this appeal is whether the Essential Supplies (Temporary Powers) Act, which was passed by the Central Legislature in 1946, applied to Bombay? If it did, then the Oilseeds (Forward Contract Prohibition) Order, 1943, hereafter called, the Oilseeds Order, issued under it would make the contract in groundnuts illegal and no award could be made under the arbitration clause contained in it. This is not in dispute. Now, the Oilseeds Order was first passed in 1943 under r. 83 of the Defence of India Rules. The Defence of India Rules ceased to be in force on September 30, 1946. In the meantime however, as the situation had not quite returned to normal in spite of the termination of the war, the British Parliament passed 783 an Act on March 26, 1946, called the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. VI, Ch. 39), hereafter called the British Act. Section 2 of this Act provided that the Central Legislature of India would have power to make laws with respect to various matters therein mentioned notwithstanding anything in the Government of India Act, 1935, and that that power could be exercised during the period mentioned in section 4 and further that the laws so made to IV he extent they could not have been otherwise made, would cease to have effect at the expiration of that period. The Governor General under the powers reserved in section 4 and subsequently, the Constituent Assembly of India, under the powers conferred on it under the Indian Independence Act, 1947, extended the period mentioned in section 4 of the British Act from time to time and eventually up to March 31, 1951. It would be unprofitable for our purposes to refer to the various statutory provisions and orders under which this was done for, the extension is not in dispute. Under the powers conferred by the British Act, the Governor General promulgated the Essential Supplies (Temporary Powers) Ordinance, 1946, which came into force on October 1, 1946. On November 19, 1946, the Central Legislature under the same powers, passe the Essential Supplies (Temporary Powers) Act, 1946, hereafter called the Central Act, repealing the Ordinance and substantially incorporating its terms. The Central Act originally provided that it would cease to have effect on the expiration of the period mentioned is section 4 of the British Act. As the life of the British Act was extended from time to time, suitable amend ments were made in the Central Act extending its life also. Our Constitution came into force on January 26, 1950 and by virtue of article 372 the Central Act was continued as one of the existing laws. On August 16, 1950, under powers conferred by article 369 of the Constitution, Parliament passed the Essential Supplies (Temporary Powers) Amendment Act, 1950, Act LII of 1950, amending the Central Act in various respects and extending its life up to December 31, 1952. By another amendment made by Act LXV of 1952, the 784 life of the Central Act was extended till January 26, 1955. Section 3(1) of the Central Act is in these terms: "The Central Government, so far as it appears to it to be 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 or prohibiting the production, supply and distribution thereof, and trade and commerce therein. " Section 2 of the Act provides that foodstuffs would be an essential commodity within the meaning of the Act and would include edible oilseeds. We have earlier stated that the Oilseeds Order was originally passed under the Defence of India Rules, which expired on September 30,1946. The Ordinance of 1946 continued in force, orders issued under the Defence of India Rules in so far as they were consistent with it and provided that such orders would be deemed to be orders made under it. Section 17(2) of the Central Act provided that an order deemed to be made under the Ordinance and in force immediately before its commencement would continue in force and be deemed to be an order made under it. As a result of the Ordinance and the Central Act replacing it and the extension of the life of the latter from time to time, the Oilseeds Order so far as it related to edible oilseeds including groundnuts, continued in force after the expiry of the Defence of India Rules till January 26, 1955. That Order, as so continued, prohibited the making of forward contracts, that is to say, contracts providing for delivery at a future date, in respect of certain specified oilseeds including groundnuts. It is the respondent 's contention that it is because of this order, read with the Central Act, that the contract in groundnuts between the parties was illegal and therefore the award made under the arbitration clause contained in it was void. Now the British Act under which the Central Act was passed, provided in sub sec. (4) of section 2 that, "Sub section (2) of section 107 of the Government of India Act, 1935, and sub section (2) of section 126 785 of that Act shall apply in relation to a law enacted by virtue of this section with respect to any matter being a matter with respect to which a Province has power to make laws as if that matter were a matter specified in Part 11 of the Concurrent Legislative List. " Section 107(2) of the Government of India Act, 1935, laid down that, "Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnantto the provisions of an earlier Federal lawthen if the Provincial law, having been reserved for the consideration of the Governor Generalhas received the assent of the Governor Generalthe Provincial law shall in that Province prevail It would follow from these provisions that if a Provincial Act which had received the assent of the Governor General, contained anything repugnant to a Central Act passed under the powers conferred by the British Act, then in the Province concerned, the Provincial Act would apply and not the Central Act. Now, the Bombay Act which had been passed by the Provincial Legislature of Bombay in 1947, came into operation in 1948. That Legislature had power to pass the Act and the Act had received the assent of the Governor General. At that time the Central Act deriving its force from the British Act, was in, operation. If, therefore, the Bombay Act was repugnant to the Central Act, in Bombay, the Bombay Act would apply and not the Central Act. This is not in dispute. The appellant contends that the Bombay Act is so repugnant and therefore the Central Act cannot render the forward contract in groundnuts made in, Greater Bombay, illegal and void. The question, therefore, is whether the Bombay Act, contains any provision repugnant to the Central Act. The preamble of the Bombay Act states that it was enacted as it was thought expedient to regulate and control forward contracts and for certain other matters. Section 1 of this Act came into force at once and gave power to the Government to bring into force by notification the remaining sections of the Act in the 786 whole of the Province of Bombay or parts thereof on such date and in respect of such goods as might be specified. The Government of Bombay issued notifications under this section on December 19, 1950, applying the remaining provisions of the Act to the area called Greater Bombay in respect of all varieties of oilseeds as from the said date. Section 8 of the Bombay Act provides as follows: section 8. (1) Every forward contract for the sale or purchase of, or relating to, any goods specified in the notification under sub section (3) of section I which is entered into, made or to be performed in any notified area shall be illegal if it is not entered into, made or to be performed (a)In accordance with such bye laws, made under section 6 or 7 relating to the entering into, making or performance of such contracts, as may be specified in the bye laws, or (b) (i) between members of a recognised association, (ii) through a member of a recognised association, or (iii) with a member of a recognised association, provided that such member has previously secured the written authority or consent, which shall be in writing if the bye laws so provide, of the person entering into or making the contract, and no claim of any description in respect of such contract shall be entertained in any civil court. (2) Any person entering into or making such illegal contract shall, on conviction, be punishable with imprisonment for a term which may extend to six months or with fine or with both. "Recognised association" is defined in the Bombay Act as an association recognised by the Provincial Government and on December 19, 1950, the Bombay Oilseeds Exchange Limited was recognised as such an association by the Government of Bombay. The appellant is a member of this association. The contracts between the parties were all expressly made subject to the rules and regulations of this Association. The case before us has proceeded on the basis that the impugned contract in groundnut had been made in compliance 787 with the requirements of section 8 and there is no finding to the contrary by the Courts below. We have hence to proceed on the same basis. The appellant contends that section 8 of the Bombay Act and section 3 of the Central Act are repugnant to each other. Now section 8 of the Bombay Act, it will, be noticed, does not purport to make any contract legal. Its only effect is to render forward contracts in all varieties of oilseeds illegal if not made in compliance with its terms. The learned Advocate for the appellant says that the effect of section 8 was to render a forward contract in all oilseeds made in terms of it, legal and, therefore, a repugnancy arose between its terms and the terms of the Oilseeds Order issued under the Central Act which made forward contracts in edible oilseeds illegal. The learned Advocate referred to various other provisions of the Bombay Act and the bye laws of the Association made in terms of the Act to show that the Bombay Act was intended to cover the entire field of forward contracts with respect to all varieties of oilseeds and was therefore intended to oust the operation of the Central Act in Greater Bombay with regard to the forward contracts covered by the former. It does not seem to us that a reference to the other provisions in the Bombay Act or to the bye laws, is relevant in deciding the question. If the effect of section 8 of the Bombay Act was not to render forward contracts made in terms of it legal, then no question of repugnancy with the Central Act can arise whatever may be the scope of the Bombay Act and the provisions in the bye laws. Therefore, it seems to us that the question is whether section 8 of the Bombay Act by its terms makes any forward contract legal. Section 3 of the Central Act, as already seen, gives power to the Central Government to prohibit trade and commerce in oilseeds. That Act, therefore, enable& the Central Government to make forward contracts in essential commodities as defined in it, illegal. That is what the Central Government did by the Oilseeds Order in so far as edible oilseeds are concerned. We find nothing in section 8 from which it can be said 788 that it rendered any contract legal. Its only intent and effect is to declare certain forward contracts illegal. We think that the matter was very correctly put by Chagla, C. J., who delivered the judgment of the High Court. He said, "All that Sec. 8 does is to declare that forward contracts will be illegal unless they comply with the procedure laid down in Sec. 8. But it is one thing to declare a certain contract illegal. It is entirely another thing to declare an illegal contract legal. Sec. 8 does not even make an attempt to declare that forward contracts declared illegal by the Central legislation shall be legal if they comply with the technicalities laid down in Sec. 8. The assumption underlying Sec. 8, it seems to us, is that forward contracts which the Legislature is dealing with are legal contracts, but even if they are legal they are declared to be illegal unless they are performed or made or entered into in the manner laid down in Sec. 8". With these observations we fully agree. In regard to the contention that section 8 of the Bombay Act necessarily implies that contracts made in terms of it would be legal, it seems to us that there is no such necessity indicated in the Act. The Act clearly intends only to create an illegality, that is to say, as Chagla, C. J. said, it takes a legal contract and imposes on it certain conditions and makes it illegal if those conditions are not fulfilled. If a contract is already illegal, there is no scope for applying the Bombay Act. Furthermore, the Bombay Act deals with all kinds of goods. Sub section (4) of section 2 of this Act defines goods as any kind of movable property including securities but not including money or actionable claims. Now the Central Act only applies to essential commodities as defined in it. Therefore, there would be many contracts to which the Central Act would not apply and such contracts may be rendered illegal by the Bombay Act if they come within its scope and are made in disregard of the conditions laid down in section 8. We, therefore, come to the conclusion that there is no repugnancy between the Bombay Act and the Central Act. It follows that there is no scope for 789 applying the provisions of section 107(2) of the Government of India Act, 1935. That would be the position in 1948, when the Bombay Act came into force and the Central Act was already in existence. Both the Acts would then be applying to Greater Bombay as there is no inconsistency between them. Article 372 of the Constitution continued both these Acts after the Constitution came into force and there is nothing in the Constitution which provides that any one of two existing laws, both of which had applied up to the coming into force of the Constitution, would apply to the exclusion of the other. It follows that in 1951 or 1952, when the contract in groundnuts which it is not disputed, was a forward contract within the meaning of both the Acts was made, both the Acts applied to it. The Constitution had not affected such application. That being the position, the contract in groundnuts must be held to be illegal under the Central Act which clearly prohibited the making of it. The Bombay Act could not make it legal for, as we have said, it was not intended to make any contract legal. It would follow that the arbitration clause contained in that contract was of no effect. It has therefore to be held that the award made under that arbitration clause is a nullity and has been rightly set aside. The award, it will have been noticed, was however in respect of disputes under several contracts, one of which we have found to be void. But as the award was one and is not severable in respect of the different disputes covered by it, some of which may have been legally and validly referred, the whole award was rightly set aside. The appeal, therefore, fails and is dismissed with costs. Appeal dismissed. 100 619 of the Act. These rules are called the Bihar Preservation and Improvement of Animals Rules, 1960. The provisions of r. 3 have also been impugned by the. petitioners by an amendment petition filed by them. Rule 3 so far as it is material. for our purpose is in these terms: "3(1). For the purpose of section 3 of the Act, the Veterinary Officer and the Chairman or Chief Officer, as the case may be, shall be the prescribed authority: Provided that where there is no Chairman or Chief Officer in respect of any area, the Veterinary Officer shall be the sole prescribed authority. (2) Where the authority prescribed under subrule (1) or sub rule (5) refuses to issue a certificate under the proviso to section 3, it shall record the reasons for the refusal and no such refusal shall be made unless the person 'applying for the certificate has been given a reasonable opportunity of being heard. (3). . . . . . . . . . (4)A bull, bullock or she buffalo in respect of which a certificate has been issued under section 3 shall not be slaughtered at any place other than the place indicated in the certificate and it shall be slaughtered within 20 days of the date of the receipt of the certificate by the person in whose favour it is issued. (5) In case of difference of opinion between the Veterinary Officer and the Chairman or Chief Officer, the matter shall be referred to the Sub divisional Animal Husbandry Officer or the District Animal Husbandry Officer, as the case may be, and the certificate shall be issued or refused according to the decision of the Sub divisional Animal Husbandry Officer or the District Animal Husbandry Officer, as the case may be. [/INST]The respondents filed a suit for specific performance against the appellant which was dismissed on March 12, 1954. On March 24 the respondents made an application for a certified copy of the judgment and decree. The decree was not drawn up and the respondents were supplied a certified copy of the judgment and the memo of costs. The respondents filed an appeal before the High Court without the certified copy of the decree and only with the certified copy of the judgment and the memo of costs. The appeal was admitted under 0. 41, r. 11 Code of Civil Procedure on August 30, 1954. On December 23, 1958, the appellant served a notice on the respondents that he would raise a preliminary objection at the hearing that the appeal was incompetent as a certified copy of the decree was not filed as required by 0. 41, r. 1. On December 24, 1958, the respondents moved the trial Court for drawing up of the decree, but since the record was in the High Court this could not be done. At the hearing of the appeal, the appellant raised the preliminary objection, but the High Court passed an order on December 15, 1959, allowing the respondents one month 's time for getting a decree drawn up and obtaining. a copy and directed the record to be sent to the trial Court. Against this order the appellant preferred an appeal to the Supreme Court contending that the High Court was bound to dismiss the appeal as it was manifestly incompetent under 0. 41, r. 1. Subsequently, on December 23, 1959, the respondents obtained a certified copy of the decree and filed it before the High Court the same day. The appellant contended that the appeal was to be deemed to be filed on this date and was time barred. Held, that in the circumstances of this case the order passed by the High Court was right. ' There was no doubt that 0. 41, r. 1 was mandatory and in the absence of or the decree the filing of the appeal was incomplete, defective and incompetent. The office of the trial Court was negligent in not drawing up a decree and the office of the High Court was also not as careful as it should have been in examining the appeal and these have contributed substantially to the unfortunate position. In such a case, the respondents deserved to be protected. Besides the, 919 question had become academic and technical in view of subse quent events. The certified copy of the decree was filed on December 23, 1959, and even if the appeal was considered to have been filed on that date, it was within time. Under section 12(2) of the Limitation Act the respondents could treat the time taken in the drawing up of the decree after the application for a certified copy thereof had been made as part of the time taken in obtaining the certified copy of the decree. Tarabati Koer vs Lala jagdeo Narain, , Bani Madhub Mitter vs Matungini Desai, Cal. 104 (F.B.), Gabriel Christian vs 'Chandra Mohan Missir, Pat. 284(F.B.), Jayashankar Mulshankar Mehta vs Mayabhai Lalbhai Shah, , Gokul Prasad vs Kunwar Bahadur, Luck. 250 and Umda vs Rupchand, , referred to. Rodger vs Comptoir d 'Escompte de Paris, (1871) L.R. 3 P.C. 465, relied on. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 602 of 1981. From the judgment and order dated 27th August, 1980 of the Gujarat High Court at Ahmedabad in Cr. Revision Application No. 282 of 1979. N.N. Keshwan and R.N. Keshwani for the Appellant. Vimal Dave and Miss Kailash Mehta for Respondent No. 1. S C. Patel and R.N. Poddar for Respondent No. 2 The Judgment of the Court has delivered by FAZAL ALI, J. This appeal by special leave is directed against a judgment dated August 27, 1980 of the Gujarat High Court accepting the revision application of the Respondent and setting aside the order of the Metropolitan Magistrate, Ahmedabad. The facts of the case lie within a very narrow compass, which may be detailed thus. The respondent who is the wife of the appellant filed an application before the Magistrate under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code of 1973 ') for grant of maintenance by the appellant on the ground that her husband appellant was guilty of wilful neglect and was unable to fulfil his primary responsibility of discharging his marital obligations. The parties were married on May 27, 1978 according to Sunni Muslim rites. After the marriage the respondent lived with her husband upto July 1978. The respondent alleged that during this period she found her husband to be physically incapable of carrying on sexual relationship and that her husband frankly told her that he was impotent. The respondent further alleged that she was maltreated and ultimately driven out of the house by her husband on July 11, 1978. On November 17, 1978 the appellant sent a registered notice (Ext. 5) to the respondent informing her that he had no physical disability and was prepared to keep her with him and discharge his marital obligations. On October 28, 1978 the respondent filed an application before the Magistrate for awarding maintenance against the appellant. So far as the facts found are concerned, there is no dispute and the case will have to be decided on the point of law that arises 698 on the contentions raised by the parties before the courts below as also in this Court. Both the High Court and the Metropolitan Magistrate clearly found that the appellant was physically incapable of having sexual relations with the respondent. In other words, the concurrent finding of fact by the courts below is that the appellant was impotent and was, therefore, unable to discharge his marital obligations. The respondent, however, refused to live with her husband on the ground that as he was impotent and unable to discharge his marital obligations, she could not persuade herself to live with him and thus inflict on herself a life of perpetual torture. The Metropolitan Magistrate relying on a decision of the Allahabad High Court in Bundoo vs Smt. Mahrul found that the mere ground that the husband was impotent was not a just cause for the refusal of the wife to live with her husband and accordingly dismissed the application filed by the respondent for maintenance. Thereafter, the matter was taken up in revision before the High Court which differed from the view taken by the Magistrate and held that the husband having been found to be impotent, this should be a just ground for the wife to refuse to live with the husband and hence she was entitled to the grant of maintenance. The High Court after having come to the aforesaid conclusion further held that having regard to the means of the husband he was in a position to pay Rs. 150/ per month by way of maintenance to the respondent. Hence, this appeal by special leave by the appellant husband Mr. Keshwani, learned counsel for the appellant, vehemently contended before us that it is now well settled by a long course of decisions of various High Courts that impotency is no good ground or reason for the wife to refuse to live with her husband and hence the wife is not entitled to maintenance if she refused to live with the husband merely because her husband was impotent. Mr. Keshwani cited a number of decisions in support of his contentions, on the other hand, Mr. Dave, appearing for the respondent, submitted that the various authorities of the High Courts seems to have overlooked the legal effect of the second proviso to sub section (3) of section 125 of the Code of 1973 under which a wife could refuse to live with her husband if there was a just ground for doing so. The said proviso may be extracted thus: "Provided further that if such person offers to maintain his wife on condition of her living with him, and she 699 refused to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. " We are of the opinion that if the husband was impotent and unable to discharge his marital obligations, how could he fulfil the main object of marriage, more particularly, under the Mahomedan law where marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband, as also in cases under the Hindu law or other Laws. In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors. this Court held thus: "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." After having heard counsel for the parties we are clearly of the opinion that the contention of the counsel ' for the respondent is sound and must prevail. It is true that there are several decisions of the High Courts taking a contrary view but they seem to have proceeded on a totally wrong assumption and we are constrained to observe that in taking such a narrow view they have followed a most outmoded and antiquated approach. The learned Magistrate mainly relied on a decision of the Allahabad High Court in Bundoo 's case (supra). It is true that Bakshi, J. in that case seems to have been influenced more by the concept of neglect rather than by the reasonableness of the ground on which the refusal of the wife was based. While dwelling on this aspect of the matter, the learned Judge observed as follows: "Assuming now for the purpose of argument that Bundoo was physically incapable of satisfying the sexual desire of his wife, it cannot be said this inability amounted intentionally to disregarding, slighting, disrespecting or carelessly and heedlessly treating his wife. In this view of the matter, I am of the opinion that the element of neglect as envisaged under Section 488 Cr. P.C., old and under Section 125 Cr. P.C. new, has not been established. " 700 The attention of the learned Judge does not seem to have been drawn to the provisions of second proviso nor has the Judge come to any clear finding that the refusal of the wife could not fall within the ambit of "just ground" as contemplated by the aforesaid proviso. Secondly, the learned Judge mainly relied on an earlier decision of Hidayatullah, J. (as he then was) in Emperor vs Daulat Raibhan and Anr. in which it was held that a wife was not entitled to live apart from her husband and claim maintenance on the ground that her husband was impotent and unable to perform his marital obligations. In fact, a number of decisions of the High Courts which were relied upon by the counsel for the appellant follow the decision of the Nagpur High Court as also the previous decisions of other High Courts replied upon by Hidayatullah, J. in the Nagpur case. We shall consider the legal effect of this decision a little later. So far as the decision of the Allahabad High Court, in which the Magistrate had relied, is concerned, the observations of Bakshi, J. were purely obiter. It would appear that there was a clear finding cf fact by the Magistrate. which had been accepted by the High Court, that the wife failed to prove by convincing evidence that her husband was impotent. In view of this finding of fact, the question of law posed and decided by Bakshi, J. did not fall for decision at all because if the wife failed to prove that her husband was impotent, the question of her refusal to live with him for a just ground did not arise at all. While adverting to this finding of fact, Bakshi, J. in the aforesaid case observed as follows: "I find from the perusal of judgment of the Magistrate that he has taken into consideration the entire evidence on the record led in connection with this question and he was of the opinion that Shrimati Mahrul Nisa failed to prove by convincing evidence that Bundoo was impotent." (Emphasis supplied) In the circumstances, we are not in a position to accept the observations of Bakshi J. which are in the nature of obiter dictum, in support of the argument of Mr. Keshwani. This brings us now to the consideration of the authorities of other High Courts which seem to have taken ' the view that impotency is no ground for grant of maintenance to the wife. We would first deal with the decision of Hidayatullah, J. in Daulat Raibhan 's case 701 (supra). In the first place, the learned Judge thought that the point A raised before him was one of first impression and his decision was, therefore, greatly influenced by the fact that there was no direct decision on the point taking a contrary view. In this connection, the learned Judge observed as follows: "No authority has been cited before me in support of the case of the wife that she is entitled to live separate from her husband on account of his impotence." Subsequently, the learned Judge mainly relied on the following observations made in Arunachala Anandayammal: "I cannot see that section 488, Criminal P.C. has anything to do with ordinary conjugal rights; it deals with maintenance only. " The learned Judge seems to have been under the impression that so far as the provisions of section 488 of the Code of 1898 were concerned they had no bearing on conjugal relations between the husband and the wife. With great respect to the learned Judge we are unable to agree with this process of reasoning. In fact, the fundamental basis of the ground of maintenance under section 488 is conjugal relationship and once conjugal relationship is divorced from the ambit of this special provision, then the very purpose and setting of the statutory provision vanishes. In the matter of the Petition of Din Mohammed, Mahmood, J. very pithily and pointedly observed as follows: "The whole of Chapter XLI, Criminal Procedure Code, so far as it relates to the maintenance of wives, contemplates the existence of the conjugal relations as a condition precedent to an order of maintenance and, on general Principles, it follows that as soon as the conjugal relation ceases, the order of maintenance must also cease to have any enforceable effect." (Emphasis supplied) We find ourselves in complete agreement with the observations made by the eminent Jurist Mahmood, J. which lays down the correct law on the subject. Thus, one of the fundamental premises on which rested the decision of Hidayatullah, J. appears to us to be 702 clearly wrong and directly opposed to the very object of the section (which at the relevant time was section 488). In Arunchala 's case (supra) which was relied upon by Hidayatullah, J., Burn J. Observed thus: "I cannot see that section 488, Criminal P.C. has anything to do with ordinary conjugal rights; it deals with "maintenance" only and I see no reason why maintenance should be supposed to include anything more than appropriate food, clothing and lodging. " It would be seen that here also the learned Judge proceeds on a legally wrong premise, viz., that section 481 had nothing to do with ordinary conjugal rights. Moreover, the Madras decision as also the earlier decision seem to have followed the outmoded and antiquated view that the object of section 488 was to provide an effective and summary remedy to provide for appropriate food, clothing and lodging for a wife. This concept has now become completely out dated and absolutely archaic. After the International Year of Women when all the important countries of the world are trying to give the fair sex their rightful place in society and are working for the complete emancipation of women by breaking the old shackles and bondage in which they were involved, it is difficult to accept a contention that the salutary provisions of the Code are merely meant to provide a wife merely with food, clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband. The same line of reasoning was adopted in an earlier decision of the Madras High Court in Jaggavarapu Basawama vs Jaggavarapu Seeta Reddi. Here also, the Judge was of the opinion that food and clothing was sufficient for the maintenance of the wife and even if the husband refused to cohabit that would not provide any cause of action to the wife to claim separate maintenance. In a recent decision in Velayudhan vs Sukmari a Single Judge observed as follows: "Learned magistrate seems to have concentrated solely on the last mentioned ground namely, failure of the husband to perform his marital duties, and has held that it is a sufficient ground entitling the wife to live away from the husband, and claim separate maintenance. But I do not think, in the face of authorities cited before me that this 703 is a sufficient ground justifying the award of separate maintenance to the wife. It was observed by Kumaraswami Sastri, J. in Basawamma vs Seetareddi (AIR 1922 Mad. 209) that there is nothing in the Code which compels the criminal court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to cohabit is no ground. Here also, the Judge while noticing that the ground taken by the wife was that the husband has failed to perform his marital duties, found himself bound by the decisions of the Madras High Court in Jaggavarapu Basawamma 's case (supra). Thus even in this decision though given in 1971 when the entire horizon of the position and status of women had changed, it is rather unfortunate that the Judge chose to stick to the old view. There is however a very formidable circumstance which seems to have been completely overlooked by later decisions while following the previous decisions of the Nagpur or the Madras High Courts. Although the second proviso to sub section (3) of section 125 of the Code of 1973, which was also a proviso to the old section 488, clearly provided that it is incumbent on the Magistrate to consider the grounds of refusal and to make an order of maintenance if he was satisfied that there was just ground for refusing to live with the husband, yet this salutary provision which was introduced with the clear object of arming the wife with a cause of action for refusing to live with the husband as the one which we have in the present case, no legal effect to the legislative will and intent appears to have been given by the aforesaid decisions. Another important event which happened in 1949 also seems to have been completely ignored by the recent decisions while following the previous decisions of the High Courts. It would appear that by the Code of Criminal Procedure (Amendment) Act No. 9 of 1949 an additional provision was added after the proviso which may be extracted thus: "If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife 's refusal to live with him. " The object of introducing this provision was clearly to widen the scope and ambit of the term 'just ground ' mentioned in the 704 proviso. This provision is not exhaustive but purely illustrative and self explanatory and takes within its fold not only the two instances mentioned therein but other circumstances also of a like or similar nature which may be regarded by the Magistrate as a just ground by the wife for refusing to live with her husband. Under the Code of 1973, this provision has been incorporated as Explanation to the second proviso to sub section (3) of section 125. The decisions of the High Courts given prior to the Amendment of 1949 would no longer be good law after the introduction of the Amendment which gives, as it were, a completely new complexion to the intendment and colour of the second proviso to section 488 (now Explanation to the second proviso to sub section (3) of section 125) and widens its horizon. It is, therefore, needless to refer to these decisions or to subsequent decisions which have followed the previous cases. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated, by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These, circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband 's parents or relations, such an apprehension also would be manifestly a reasonable justification for the wife 's refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive. In other words, where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance. If this is so, can it be said by any stretch of imagination that where a wife refuses to live with her husband if 705 he is impotent and unable to discharge his marital obligation, this would not be a just ground for refusing to live with her husband when it seems to us that the ground of impotence which had been held by a number of authorities under the civil law to be a good ground not only for restitution of conjugal rights but also for divorce. Indeed, if this could be a ground for divorce or for an action for restitution of conjugal rights, could it be said with any show of force that it would not be a just ground for the wife to refuse to live with her husband. The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of the perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same. In Rita Nijhawan vs Balkrshaan Nijhawan (Sachar, J.) while dealing with a case of annulment of marriage under the Hindu Marriage Act on the ground of impotency very poignantly and pithily observed as follows: "Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the 'result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any wilful refusal by the respondent. . . Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a women 's mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration. " 706 We find ourselves in complete agreement with the very practical and pragmatic view that the learned Judge has taken and the principles adumbrated by the Judge apply fully to proceedings for maintenances because as we have said the concept of cruelty is the same whether it is a criminal case or a civil case. As far back as 1906, the Bombay High Court came out with the concept of cruelty which could be considered for exercising jurisdiction under section 488 of the Code of 1898. In Bhikaji Maneekji vs Maneekji Mancherji a Division Bench of the Bombay High Court observed as follows: "Where it is proved that a husband has not refused or neglected to maintain his wife, a criminal Court, acting under the section, has no jurisdiction to make an order upon the husband for her maintenance on the ground that the husband has been guilty of cruelty to her. But that is a very different thing from holding that no evidence of cruelty can be admitted in a proceeding under the section to prove, not indeed cruelty as a ground for separate maintenance, but the conduct and acts of the husband from which the Court may draw the inference of neglect or refusal to maintain the wife. A neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. If there is evidence of cruelty on the part of the husband towards the wife from which, with other evidence as to surrounding circumstances, the Court can presume neglect or refusal, we do not see why it should be excluded. There is nothing in section 488 to warrant its exclusion, and such has been the practice of the Court. But the section has been altered and now the Court can pass an order for maintenance where neglect or refusal is proved, even if the husband is willing to maintain the wife, provided the Court finds that there are "just grounds" passing such an order. This alteration gives a wider discretion to the Court, which means that in passing such an order it is legitimate for it to take into account the relations between the husband and the wife, and the husband 's conduct towards her." This decision, given as far back as 1907, while construing the proviso appears to be both prophetic and pragmatic in its approach 707 and it is rather unfortunate that subsequent decisions have not noticed this important principle of law decided by the Bombay High Court. We fully endorse this decision as laying down the correct law on the subject and as giving the correct interpretation of the proviso to section 488 particularly the concept of the words 'just ground '. Another decision which had touched the question of 'cruelty ' is the case of Bai Appibai vs Khimji Cooverji where the following observations were made: "If, however, the husband by reason of his misconduct, or cruelty in the sense in which that term is used by the English Matrimonial Courts, or by his refusal to maintain her, or for any other justifying cause, makes it compulsory or necessary for her to live apart from him, he must be deemed to have deserted her, and she will be entitled to separate maintenance and residence. " In Gunni vs Babu Lal Dixit, J. sounded a very pragmatic note on this aspect of the matter and in this connection pointing out the scope of the Amendment of 1949 observed thus: "There is nothing in the Criminal Procedure (Amendment) Act, 1949 to show that it would not be a just ground for the wife 's refusal to live with her husband if the husband has contracted marriage with another wife or taken a mistress before the amendment made in section 488. The amendment is clearly intended to put an end to an unsatisfactory state of law, utterly inconsistent with the progressive ideas of the status and emancipation of women, in which women were subjected to a mental cruelty of living with a husband who had taken a second wife or a mistress on the pain of being deprived to any maintenance if they chose to live separately from such a husband. If my view to hold that the amendment is intended to afford a just ground for the wife 's refusal to live with her husband only in those cases where he has after the amendment, taken a second wife or a mistress is to defeat in a large measure the very object of the amendment. " 708 We find ourselves in complete agreement with the observations made by the learned Judge. In Mst. Biro vs Behari Lal, a decision to which one of us (Fazal Ali, J. as he then was a party, where the importance of the Amendment of 1949 also touched, the following observations were made: "Before the amendment, the fact of the husband 's marrying a second wife or keeping a mistress was not by some High Courts considered a just ground for the first wife 's refusal to live with him, although it was taken into account in considering whether the husband 's offer to maintain his first wife was really 'bona fide ' or not. The amendment is clearly intended to put an end to an unsatisfactory state of law utterly inconsistent with the progressive ideas of the status and emancipation of women, in which women were subjected to a mental cruelty of living with a husband who had taken a second wife or a mistress on the pain of being deprived of any maintenance if they chose to live separately from such a husband." In Sm. Pancho vs Ram Prasad, Roy, J. while dealing with the Hindu Married Women 's Right to Separate Residence and Maintenance Act (19 of 1946) expounded the concept of 'legal cruelty ' and observed thus: "In advancement of a remedial statute, everything is to be done that can be done consistently with a proper construction of it even though it may be necessary to extend enacting words beyond their natural import and effect. . . Conception of legal cruelty undergoes changes according to the changes and advance of social concept and standards of living. With the advancement our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill treatment, cessation of marital intercourse, studied neglect, indifference on the part of the 709 husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife. The learned Judge has put his finger on the correct aspect and object of mental cruelty. The fact that this case did not arise out of the proceedings under section 125 makes no difference because we have already observed that the concept of cruelty remains the same whether it is a civil case or a criminal case or a case under any other similar Act. The general principles governing acts constituting cruelty legal or mental ill treatment or indifference cannot vary from case to case though the facts may be different. Similarly, while dealing with a case under the , a Division Bench of the Karnataka High Court in Dr, Srikant Rangacharya Adya vs Smt. Anuradha dwelling on the aspect of impotency and its impact on the wife observed as follows: "In these days it would be an unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman 's mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman 's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse. " We find ourselves in entire agreement with the observations made by the learned Judges of the Karnataka High Court which seems to be the correct position in law. Even the learned Judge who had delivered the judgment in the instant case had very rightly pointed out as follows: 710 "If the maintenance of a wife is supposed to include only food, shelter and clothing having regard to the conjugal rights and if the just cause on which wife can refuse to stay with the husband and yet claim maintenance, can have reference only to the comfort and safe of the wife then it might reduce the wife to the status of a domesticated animal. In the context of the changing status of woman in society such a proposition would seem outdated and obsolete. . In other words, the Courts cannot compel the wife to stay with husband on the ground that the husband though he is forcing her in a situation where her physical and mental well being might be adversely affected, as there is no intention on the part of the husband to inflict that cruelty, she should suffer that predicament without demur and be satisfied with a grab to bite and some rags to clothe her and a roof over her head. " We fully endorse the observations made above. Apart from the various decisions referred to above, there is a direct English decision on the point. In Sheldon vs Sheldon, Lord Denning observed as follows: "I rest my judgment on the ground that he has persistently, without the least excuse, refused her sexual inter course for six years It has broken down her health. I do not think that she was called on to endure it any longer. It has been said that, if abstinence from intercourse causing ill health can be held to be cruelty, so should desertion simpliciter leading to the same result. " Thus, from a conspectus of the various authorities discussed above and the setting, object and interpretation of the second proviso to sub section (3) of section 125 of the Code of 1973, we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife 's refusal to live 711 with her husband and the wife would be entitled to maintenance from her husband according to his means. In these circumstances, therefore, it would be pusillanimous to ignore such a valuable safeguard which has been provided by the legislature to a neglected wife. For these reasons, therefore, we find no merit in the appeal which fails and we accordingly dismiss the same without any order as to costs. In view of our decision in this case, it follows that the decisions referred to above in the judgment taking a contrary view must be held to be no longer good law and are hereby overruled. P. B. R. Appeal dismissed. [/INST]In exercise of its executive power the State Government of Madhya Pradesh made by its order dated 2nd April, 1980 the Rules for admission into the Medical, Dentistal and Ayurvedic Colleges in Madhya Pradesh. By and under Rule 7 the State Government has reserved 15% of seats for each of the categories of Scheduled Castes and Scheduled Tribes candidates. Rule 20 lays down that selection of candidates from amongst those who have qualified in the examination shall be made strictly on merit as disclosed by total number of marks obtained by candidates in the pre medical examination. Rule 20 further provides that minimum qualifying marks for admission to Medical Colleges shall be 50% in the aggregate and 33% in each subject respectively; but for Scheduled Castes and Scheduled Tribes candidates the minimum qualifying marks shall be 40% in the aggregate and 30% in each subject. Note (ii) below Rule 20 empowers the Government to grant in case of candidate belonging to the categories of Scheduled Castes and Scheduled Tribes special relaxation in the minimum qualifying marks to the extent considered necessary in the event of the required number of candidates in these two categories not being available. Rule 9 contains a provision to the effect that in case seats reserved for categories of Scheduled Castes and Scheduled Tribes remain vacant, these seats will be filled up by candidates available on the combined merit list. The total number of seats in all the Medical Colleges being 720 in number, 108 seats each for the Scheduled Castes and Scheduled Tribes became reserved under Rule 7. 760 For admission to The Medical Colleges for the academic year 1980 8., there were 9400 candidates in all of which 623 candidates were from Scheduled Castes and 145 candidates were from schedule Tribe. On the result of the pre medical examination only 18 seats in the category of Schedule Casts and 2 seats in the Schedule Tribe could be filled up because the other candidates of these categories did not secure the qualifying marks prescribed by Rule 20. The selection Board in exercise of the power under note (i) to Rule 20 made a relaxation of 5% in terms thereof and thereafter 7 more candidates in the category of Schedule Casts and one more in the category of Schedule Tribes got admitted leaving a balance of 83 seats under Schedule Casts quota, and 105 seats under the Schedule Tribes quota to be filled as provided for under Rule 9. But the State Government, by its order dated 9th September 1980 removed the condition relating to minimum qualifying marks in favour of the candidates from amongst Schedule Castes and Schedule Tribes. The respondent belonging to the general category who obtained the minimum qualifying marks but could not secure admission as other candidates for the general seats had obtained marks higher than she had obtained in the premedical examination for filling up the vacancies available in the general category, would have been in a position to secure admission to the Medical College but for the complete relaxation granted by the impugned order without complying with the provisions of Rule 9. She, therefore, filed a writ petition in the High Court on the grounds, inter alia, (1) that the order of the Government contravenes Regulation II of the Medical Council of India and would hit Section 19 of the Indian medical council Act 1956 exposing the Medical colleges to the risk of being derecognised:(2) that the order of the Government will have the effect of allowing less qualified and less deserving candidates to fill up the seats and would, therefore, destroy equality and violate Articles 14 and 15 of the Constitution ; and (3) the order was violative of Ordinance 94 of the University of Jabal pur. The High Court accepted the contentions of the writ petitioner and allowed the petition. Hence the appeal by the State, after obtaining special leave. Allowing the appeals, the Court, ^ HELD: 1. The executive order dated 9th September, 1980 passed by the State cf Madhya Pradesh completely relaxing the conditions relating to the minimum qualifying marks for selection of students to Medical Colleges of the State in respect of candidates belonging to Schedule Castes and Scheduled Tribes is not violative of either Article 14, 15(1) or 15(2) or 15 (4). [785 G, 788 C] 2. The relaxation does not offend Article 14 of the Constitution. There is no relaxation of the condition regarding eligibility for and admission into Medical Colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes who were otherwise qualified and eligible to seek admission into Medical Colleges only in relation to seats reserved for them. Further the validity of the reservation of seats for candidates belonging to Schedule Castes and Scheduled Tribes have not been challenged and very properly in view of Article 15 (4) of the Constitution. [786 E G] 3. The relaxation cannot be said to be unreasonable and does not violate Articles 15(1), (2) and (4) of the Constitution. The State must do everything 761 possible for the upliftment of the Schedule Castes and Scheduled Tribes and other backward communities and it is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also been open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the condition; regarding, selection for admission if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary. The order can be supported under Article 15(4) of the Constitution. [785 H, 786 A D] State of Kerala and Anr. vs N.M. Thomas, ; ; Jagdish Saran and Ors. vs Union of India and ors. ; , , followed. Amalendu Kumar vs State of Bihar, AIR 1980 Patna 1 overruled. Under Article 162 of the Constitution the executive power of a State, extends to the matter with regard to which the Legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to Medical Colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard. [785 D.E] State of Andhra Pradesh and Ors. vs Lavu Narendranath and Ors. ; , , reiterated. Regulation II of the Indian Medical Council is merely directory and in the nature of a recommendation and, therefore has no such statutory force as to render the executive order dated 9th September, 1980 which contravenes the said Regulation illegal, invalid and unconstitutional. [785 B Cl Entry 66 in List I (Union List) of the Seventh Schedule to the Constitution relates to "co ordination and determination of standard in institutions for higher education or research and scientific and technical institutions". This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such admission. On the other hand, entry 25 in List II (Concurrent List) of the same Schedule speaks of "education, including technical education, medical education in Universities, subject to entries 63, 64, 65 and 66 of List I. vocational and technical training of labour". This entry is wide enough to include within its ambit the question of selection of candidates to Medical Colleges and there is nothing in the entries 63, 64 and 65 of List I to suggest to the contrary. [784 G.H, 785 A C] 5:2. Regulation I of the Medical Council prescribes the requisites which have to be satisfied to enable every student to become eligible or qualified to seek admission and the process of selection comes thereafter. As this Regulation is 762 within the competence of the Council the Council, has framed this Regulation in a manner which leaves no doubt that this Regulation is mandatory. [783 B C] 5:3. Regulation II of the, Council is merely in the nature of a recommendation. Regulation II begins with the words "selection of students in medical college should be based solely on merit". Language used in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of a recommendation. By way of solution to the problem of dearth of seats, the Council appears to have thought it fit to suggest the procedure which will have the effect of selecting such candidates on the basis of merit only. The procedure suggested is intended to do away with nepotism and favoritism and any unfair practice in the matter of such admission, as the procedure recommends merit to be the criterion. Regulation II recommending the process of selection is outside the authority of the Council under section 33 of the Act and the Council has advisedly and deliberately used such language in Regulation II as makes the position clear and places the matter beyond any doubt. Further, apart from reservations of seats for Scheduled Castes and Scheduled Tribes and other reservations, reservation of seats is commonly made for being filled up by nomination. In the instant case, it appears that seats not exceeding three per cent are reserved for the nominees of the Government of India apart from the other reservations. These nominees of the Central Government do not have to sit for any premedical examination to qualify themselves for selection to the Medical Colleges, They must of course be eligible for admission in the sense that they must have the necessary qualification for admission in accordance with Regulation I. The candidates eligible under Regulation I are selected by virtue of nomination and there is no question of any pre medical test for such candidates nominated by the Central Government. If Regulation II could be considered to be mandatory, there could be no such nomination of candidates by the Central Government. [783 G H, 784A C, E G] 6:1. An analysis of the various sections of the indicates that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution. composition and functions and the main function of the Council is to maintain the medical register of India and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners. The scheme of the Act appears to be that the Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post graduate medical education and will further regulate the standard of professional conduct and etiquette and code of ethics for medical practitioners. The Act further envisages that if it appears to the Council that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination held by any University or Medical Institution do not conform to the standard prescribed by the Council or that the staff, equipment, accommodation training and other facilities for instructions and training provided in such University or medical institution or in any college or other institutions affiliated to that University do not conform to the standards prescribed by the Council, the Council will make a representation to that effect to the Central Government and 763 on consideration of the representation made by the Council, the Central Government may take action in terms of the provisions contained in section 19 of the Act. [776 G H, 777 A C] The Act also empowers the Council to take various measures to enable the Council to judge whether proper medical standard is being maintained in any particular institution or not. [777 C D] 6:2. The authority of the Council extends to the sphere of maintaining proper medical standard in Medical Colleges or institutions necessary for obtaining recognized medical qualifications. By virtue of this authority it may be open to the Council to lay down the minimum educational qualifications required of a student who may seek admission into a Medical College. In other words, the eligibility of a candidate who may seek to get admitted into a medical ( ' college for obtaining recognized medical qualifications may be prescribed by the Council. All the candidates who are eligible for admission into Medical Colleges or institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a Medical College or institution. As to how the selection has to be made out of the eligible candidates for admission into the Medical College is a matter which has necessarily to depend on circumstances and conditions prevailing in particular States. Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to the medical course does not appear to come within The purview of the Council. [777 E H, 778 A] 6:3. The process of selection of candidates for admission to a Medical College out of the candidates eligible for admission for filling up the limited vacancies has no real bearing on the question of eligibility or qualification for admission or on the standard of medical education. The standard of medical education really comes into the picture in the course of studies in the medical colleges or institutions after the selection and admission of candidates into Medical Colleges and institutions. Students who satisfy the requirements of Regulation I become qualified or eligible to seek admission into the Medical Course. Regulation I prescribes the requisites which have to be satisfied to enable every student to become eligible or qualified to seek admission and the process of selection comes thereafter. [778 C E] Undoubtedly, under section 33 of the Act, The Council is empowered to make regulations with the previous sanction of the Central Government generally to carry out the purposes of the Act and such regulations may also provide for any of the matters mentioned in section 33 of the Act. [778 E F] G State of Kerala vs Kumari T. P. Roshana and Ors ; Arti Sapru vs State of Jammu and Kashmir and Ors , explained and distinguished. </s>

<s>[INST] Summarize the judgementAppeals Nos. 2380 and 2381 of 1966. Appeals from the judgment and order dated January 7, 1966 of the Calcutta, High Court in Income tax References Nos. 7 and 176 of 1961. section Mitra, section K. Aiyar, R, N. Sachthey and B. D. Sharma, for the appellant (in both the appeals). A. K. Sen, O. P. Khaitan and B. P. Maheshwari, for the respondent (in both the appeals). The Judgment of the Court was delivered by Grover, J. These appeals by certificate arise out of a common judgment of the Calcutta High Court in two Income tax References. The assessee is a private limited company. It carried on the business of banking and financing as also of managing agency. Starch Products Ltd. was one of the various companies which was being managed by the assessee. Starch Products had appointed the U.P. Sales Corporation Ltd. as its selling agent. The assessee claimed to have stood guarantee for a loan of Rs. 6 lakhs which was advanced to the U.P. Sales Corporation Ltd. by the Gwalior Industrial Bank Ltd. The borrower failed to pay the loan which on August 2, 1948 stood at Rs. 5,60,199. This amount was paid by the assessee pursuant to the guarantee. Thereafter the assessee treated the U.P. Sales Corporation Ltd. as its debtor for the aforesaid amount. That company went into liquidation and as the assessee could not recover anything from it a sum of Rs. 5,60,199 was written off in the books of the assessee company. The claim was not entertained either by the Income tax Officer or the Appellate Assistant Commissioner. Before the Income tax Officer the 359 said amount Was claimed as bad debt vide assessee 's letter dated September 12, 1957. The Income tax Officer rejected the explanation furnished by the assessee for advancing such a large amount to a company whose financial position was far from satisfactory. According to him the advance was not a bona fide money lending investment. Subsequently it was sought to be established before the Income tax Officer, that an indemnity had been given to the Gwalior Industrial Bank Ltd. in the matter of the loan account of the U.P. Sales Corporation Ltd. and the payment had been made on its failure to clear the debt of the Bank. According to the In come tax Officer the assessee was asked to produce evidence about the guarantee having been furnished but he was not satisfied that there was any directors ' resolution authorising the furnishing of a guarantee or that the document purporting to be a guarantee had been properly stamped or that there was other sufficient evidence to establish the transaction. Before the Appellate Assistant Commissioner the only substantial ground taken was that the Income tax Officer had wrongly disallowed the claim &or bad debt amounting to Rs. 5,60,199. The Appellate Assistant Commissioner considered the question of the aforesaid amount being an admissible deduction or allowance under section 10(2) (xi) of the Income tax Act 1922. In his opinion the guaranteeing of a loan though made in the interest of the assessee 's business and is a matter of commercial expediency did not represent an advance made in the normal course of the assessee 's business. Such an advance could have been made only if it had been made to the company managed by the assessee under a contractual obligation to guarantee the finances of the managed company. According to him the claim for irrecoverable loan would have been also admissible if the assessee could establish that the loan represented an interest bearing advance made in the course of the assessee 's money lending business but that was not the case of the assessee. And since the loan had been advanced to assist a concern having trade relations with one of the managed companies it could not be allowed as a permissible deduction. The appellate tribunal did not agree with the finding of the Appellate Assistant Commissioner that the loss was not directly incidental to the assessee 's business. This is what the tribunal stated in its order : "The Appellate Assistant Commissioner, in our opinion, failed to appreciate the special nature of the business carried on by the assessee. This is not a case where any money was advanced by the assessee for the purpose of earning interest. All that the assesses did was to stand surety for the money advanced by a Bank to the selling agent of one of its managed companies,. If such a 3 60 guarantee was not given Messrs. Starch Products Ltd., one of the managed companies, would have had to give extended credit to the selling agent and this could be possible if the managed company in its turn was financed either by the managing agents or a third party. It was to obviate the necessity of such borrowing by the managed company that the assessee company stood guarantee for the loan given by Gwalior Industrial Bank Ltd. to U.P. Sales Corporation Ltd. It was only on the failure on the part of the borrower, i.e. U.P. Sales Corporation Ltd., to fulfill its committment that the assessee as a guarantor came into the picture. ' There was, therefore, no question of earning of any interest on any money advanced. It was in the larger interest of the assessee 's business that the guarantee was given. The standing of surety for the sales Organisation of the managed company and the consequent loss arising therefrom was in our opinion germane to the assessee 's 'business. It is now well established that a sum of money extended not of necessity and with a view to give a direct and immediate benefit to the trade but voluntarily and on the ground of commercial expediency and in order to indirectly facilitate the carrying on of the business, may yet be an allowable deduction in computing the profits and gains of the business. " The Tribunal held that the assessee 's claim for the loss of Rs. 5,60,199 was an admissible deduction. At the instance of the Commissioner of Income tax, the Tribunal referred the following question of law to the High Court: "Whether on the facts and in the circumstances of the case, the sum of Rs. 5,60,199 was an admissible deduction in computing the business profits of the assessee ?" Three other questions were referred to the High Court on an application made under section 66(2) of the Act. It is unnecessary to refer to them as the real controversy has centred on the above question alone. The High Court addressed itself to the question whether the amount in dispute fell within section 10(2) (xi) of the Act. The finding of the Appellate Assistant Commissioner that the guarantee had in fact been furnished to the Bank was not disputed. This is what the High Court said after referring to certain decided cases and the relevant portion of the Tribunal 's judgment : "We agree that it was in the larger interest of the assessee 's business that the guarantee was given and we 3 6 1 are of the opinion that the debt was incidental to the business of the assessee within the meaning of section 10(2)(xi) of the Act and such a debt was found to be irrecoverable in the relevant accounting year commencing on the 31st October 1951 and ending on the 18th October 1.952." While computing profits or gains of business under section 10 certain allowances have to be made under sub section The allowance covered by clause (xi) thereof has to be made when the assessee 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, of such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, ,and in the case of an assessee carrying on a banking or money lending business of such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of the assessee. Now a bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade. It must arise in the course of and as a result of the assessee 's 'business. The deduction claimed should not be too remote from the business carried on by the assessee. In Madan Gopal Bagla vs Commissioner of Income tax West Bengal(1) the principle which was accepted was that the debt in order to fall within section 10(2) (xi) must be one which can properly be called a trading debt i.e. debt of the trade the profits of which are being computed. It was observed that the assessee in that ease was not a person carrying on business of standing surety for other persons nor was he a money lender. He was simply a timber merchant. There was some evidence that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person. But it was not established that he was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit. Even if such had been the case any loss suffered by reason of having to pay a debt borrowed for the benefit of another would have been a capital loss to him and not a business loss at all. A businessman may have to stand surety for some one in order to get monies for his own business. There may be a custom of the business by which that may be the only method whereby he could get money for the purpose of his own business. If he is to discharge a surety debt and if any such custom is established it would be a business debt. If the assessee has made a payment not voluntarily but to discharge a legal obligation which arises from his business. he would be entitled to have the amount deducted as a bad debt under section 10(2)(xi); see Commissioner of Income tax Bombay vs (1) 362 Abdullabhai Abdulkadar(1). In Essen Private Ltd. vs Commis sioner of Income tax(2) Madras, the appellant carried on business as a managing agent of several concerns. Pursuant to the agreement with one of the companies managed by it, it advanced large sums of money to the managed company and also guaranteed a loan of Rs. 2 lakhs obtained by that company from a Bank. The managed company failed in its business and upon the Bank pressing for payment the appellant in accordance with its guarantee made certain payments to that Bank. The assessee had ultimately to write off certain sum in its books as bad debts and it claimed that allowance under section 10(1) (xi). The Tribunal found that the advances to the managed company and the agreement guaranteeing the loan to the managed company were in pursuance its objects and were made in the course of its business and the claim was allowed. That decision was finally affirmed by this Court. In this case there was a cause in the memorandum of association by which the assessee was entitled to land monies and to guarantee the performance of contracts. Similarly the managing agency agreement contained a clause about lending and advancing of money to the managed company. It was found by the appellate tribunal that it was a part of the managing agency to provide funds to the managed company. In the present case none of those facts have been found. Neither the memorandum of association nor the managing agency agreement contained any such provision by which it could be said that the guaranteeing of the loan made by the Bank to the selling agents was done in the course of the managing agency business. In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under section 10(2) (xi). It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed. There was no privity of contract or any legal relationship between the assessee and the selling agent. Neither under customer nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent. It is difficult how it was in the interest of the assessee 's business that the guarantee was given. There was even no material to establish that the managed company was under any legal obligation to, finance the selling agent or to guarantee any loans advanced to the selling agent by a third party. It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessee 's business. It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of (1) (2) 363 the assessee 's business that the guarantee was given. In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position. The High Court also fell into the same error. The allowance which was claimed did not fall within section 10(2) (xi). No attempt was made nor indeed it could be usefully made to claim any allowance under section 10(2:) (xv)of the Act. For the reasons given above the correct answer to the question referred should be in the negative and against the, assessee. The appeals are thus allowed with costs and the judgment of the High Court is set aside. One hearing fee. G.C. Appeals allowed. [/INST]The appellant, who was the Chief Minister of Kerala at the time. , at ' a press conference held by him on November 9, 1967, made various critical remarks relating to the judiciary referring to it inter alia as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favoring the rich against the poor. He also stated that as part of the ruling classes the, judiciary "works 'against workers, peasants and other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes". These remarks were reported in the newspapers and thereafter in proceedings commenced ' in the High Court the appellant was called upon to show cause why he should not be committed for contempt. In an affidavit in reply the appellant stated that the reports were "substantially correct", though incomplete in some respects. He supplied some omissions and pleaded want of intention to show disrespect to the judiciary and justification on the ground that the offence charged could not be held to be committed, in view of the guarantees of freedom of speech and expression under the Constitution. He claimed that his observations did no more than give expression to the Marxist philosophy and what was contained in the programme of the Communist Party of India. By a majority judgement the appellant was convicted for contempt of court and fined Rs. 1000/ or simple imprisonment for one month. In appeal to this Court it was contended on behalf of the appellant that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression in Article 19(1)(a) : and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people; he sought to justify the remarks as an exposition of his ideology which he claimed was 'based on the teachings of Marx and Engels and on this ground claimed protection of The first clause of article 19(1). HELD : Upholding the appellant 's conviction The law punishes not only act which do not fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. , Judged from the angle of courts and administration of justice" there was no doubt that the appellant was guilty of contempt of court. Whether he misunderstood the teachings of Marx and Engels or deliberately distorted them was not to much purpose. The likely effect of his words must be seen and they clearly had the, effect of lowering the prestige of judges and courts 698 in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to he imposed on him but could not serve as a justification. It was obvious that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin. He had misunderstood the attack by them on state and the laws as involving an attack on the judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives. They do not range themselves on the side of the exploiting classes and indeed resist, them when the law doe. not warrant an encroachment. To charge the judiciary as an instrument of oppression, the judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favoring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakened the authority of law and law courts. [712 E] While the spirit underlying Art 19)(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves. Although article 19(1)(a) guarantees complete freedom of speech and expression, it also makes an exception in respect of contempt of court. While the right is essential to a free society, the Constitution has itself imposed restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned. [704, C] Samuel Roth vs United States of America, I L.Ed.2d 1489 at 1506; Arthur Terminiello vs City of Chicago. ; at 1134; Charlotte Anita Whitney vs People of the State of California, ; , New York Times Company vs L. B. Sulivan, 686; and Kedar ' Nath Singh vs State of Bihar, [1962] 2 Supp. S.C.R. 769, referred to. While it is true that Lord Morris in Mcleod vs St. Aubyn at p. 561 observed that the contempt of court known from the days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the Judges, had fallen into disuse in England, as pointed out by Lord Atkin in Andre Paul Terence Ambard vs The Attorney General of Trinidad, and Tobago, A.I.R. 1936 P.C. 141 at 143, the observations of Lord Morris were disproved within a year in The Queen vs Gray. at 40. Since then many convictions had taken place in which offence was held to be committed when the act constituted scandalizing a Judge.[703 D] The Government Pleader, High Court, Bombay vs Tulsidas Subhanrao Jadhav, I.L.R. ; explained. In re : Basudeo Prasad, Cr. Appeal No. 110 of 1960 decided on May 3, 1962; distinguished. </s>

<s>[INST] Summarize the judgementminal 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. [/INST]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, </s>

<s>[INST] Summarize the judgementivil Appeal No. 10085 of 1983. From the Judgment and Order dated 15.9.1982 of the Allahabad High Court in Civil Revision No. 332 of 1981. S.N. Kacker and R.B. Mahlotra for the Appellant. Aruneshwar Gupta and B.B. Sharma for the Respondent. The Judgment of the Court was delivered by VARADARAJAN, J. The short point arising for consideration in this appeal by special leave filed against the decision of a Division Bench of the Allahabad High Court in Civil Revision No. 332 of 1981 turns upon the interpretation of section 20 (4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972 (hereinafter referred to as 'the Act '). The appellant land lady filed the suit on 6.8.1973 for recovering possession from the respondent tenant of a portion of premises situate at Bhau Ka Nagla, Agra Road, Mauza Dholpura on the allegation that it had been let to the respondent on a rent of Rs. 360 per mensem and that the tenancy has come to an end by efflux of time fixed in the rent note on the expiry of 30.6.1973. She alleged in the plaint that the demised property is situate beyond the municipal limits of Ferozabad and is intended for use as a factory and is exempt from the provision of the Act and that the respondent is in arrears of rent to the extent of Rs. 3,960 for the period from 1.8.1972 to 30.6.1973 and she is entitled to recover possession of the premises together with arrears of rent of Rs. 3,960 at Rs. 360 per mensem for the said period and mesne profits at Rs. 720 for the subsequent period from 1.7.1973 at Rs. 20 per day. The respondent opposed the suit contending that the property is situate within three kilometres of Ferozabad municipal limits and was not a factory when it was let out and that it is governed by the 586 provisions of the Act. He denied that the rent is Rs. 360 per mensem and contented that it is only Rs. 125 per mensem and that the tenancy includes a vacant land shaded green and yellow in the plan filed with the plaint which according to the plaint does not form part of the lease. He denied that he had executed the rent note mentioned in the plaint and that the vacant land shaded green and yellow in the plaint plan had not been leased to him. He further denied that the tenancy has come to an end by efflux of time and contended that the amounts claimed as arrears of rent and mesne profits are wrong and excessive and that the notice to quit is invalid in law as it excludes the vacant land shaded green and yellow in the plaint plan which also is the subject matter of the lease. Finally he contended that the suit is barred by the provisions of s.20 of the Act sub section (1) whereof says that save as provided in sub section (2), no suit shall be instituted for the eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner. The learned Fourth Additional District Judge, Agra who tried the suit exercising his Jurisdiction as a Judge of Small Causes Court found on 19.7.1975 that he had jurisdiction while recording findings on the point of jurisdiction tried as preliminary issue, and he held that though admittedly even the vacant land marked green and yellow in the plaint plan had been originally leased upto 27.7.1972 thereafter only the red marked portion had been leased on a rent of Rs. 360 per mensem under the rent note (paper No. 18A) the execution whereof has been denied by the respondent, excluding the green and yellow marked portion. On the basis of that unregistered rent note, (paper No. 18A) he found that the rent is Rs. 360 per mensem, rejecting the respondent 's case that the old rent of Rs. 125 per mensem continued even after the dissolution of the partnership to which the premises had been leased earlier. The respondent admitted that though the property is situate outside the Ferozabad municipal limits it is situate within three kilo metres from those limits and is therefore governed by the provisions of the Act while the appellant denied that it is situate within three kilo metres. The learned District Judge found on the evidence that the property is situate within two kilo metres of the municipal limits and falls within the exception and is governed by the provisions of the Act. He found that the tenancy for the period of 11 months under the rent note (paper No. 18A) had come to an end by efflux of 587 time and the parties are governed by it and that the suit is, however, governed by the provisions of s.20 of the Act. However, the learned District Judge considered the question whether the respondent is liable for eviction in this suit and found that the appellant had served notice of demand (paper No. 35C) on the respondent and he failed to pay the rent claimed by the appellant and he is as such liable to be evicted under s.20 of the Act. But the respondent had deposited the full amount of rent as claimed at Rs. 360 per mensem together with damages for use and occupation, interest and costs as required by s.20 (4) of the Act on 31.10.1973, a day after the first hearing date 30.10.1973. The learned District Judge found that the sum of Rs. 7,490 was tendered in court on 30.10.1973 and passed by the court on that day and deposited into the bank on 31.10.1973 and that the tender made on 30.10.1973 was valid and the payment must be deemed to have been made on 30.10.1973 itself. But he accepted the argument advanced on behalf of the appellant that because the respondent had contended in the written statement that the rent is Rs. 125 per mensem and it was rejected by the court and it was found that the rent is Rs. 360 per mensem the deposit of Rs. 7,490 towards arrears of rent calculated at Rs. 360 per mensem together with interest and costs was not unconditional and therefore invalid and s.20 (4) of the Act does not help the respondent. In that view the learned District Judge decreed the suit for eviction with arrears of rent and mesne profits at Rs. 360 per mensem from 1.8.1972 and ordered credit being given for the amount deposited by the respondent towards the amount payable under the decree and granted four months time for the respondent to vacate the premises. In C.R.P. No. 332 of 1981 filed by the respondent against the Judgment of the trial court a Division Bench of the High Court noticed that one of the conditions of s.20(4) of the Act is that the tenant should unconditionally pay or deposit the entire amount due together with interest and costs and that s.20 (6) says that any amount deposited under s.20(4) shall be paid to the landlord without prejudice to the pleadings of the parties and subject to the ultimate decision in the suit, and they have observed that the submission made before them on behalf of the appellant that the deposit to be unconditional must be on acknowledgement of the liability for rent as claimed by the landlord if accepted would render the provisions in s.20(6) of the Act nugatory. They have observed that if the tenant makes a deposit 588 with a condition that it shall not be paid to the landlord until the suit is decided it would be a conditional deposit. They have found that in the present case the deposit was not conditional merely because while depositing the amount inclusive of rent at the rate of Rs. 360 per mensem as claimed in the plaint the respondent had contended in the written statement that the rent is Rs. 125 per mensem and not Rs. 360 per mensem and that pleading in the written statement that the rent is Rs. 125 per mensem and not Rs. 360 per mensem does not make the deposit conditional. In that view the learned Judges allowed the civil revision petition and dismissed the suit with costs in both the courts. The findings dated 19.7.1975 recorded by the learned District Judge on the preliminary issue holding that he had jurisdiction to entertain the suit is not available in the records produced in this Court. Therefore, it is not known for what reason the learned District Judge held that he had jurisdiction to entertain the suit. The appellant came forward with the suit for recovering possession of the premises together with arrears of rent and mesne profits on the allegation that the tenancy under the rent note (paper No. 18A) was for a period of only 11 months and that it had come to an end by efflux of time and the premises was intended for use as a factory and the Act is not applicable thereto. On the other hand, the respondent 's defence was that the property was situate within three kilo metres of Ferozabad municipal limits and is governed by the provisions of the Act and that the civil suit for recovery of possession of the property is not maintainable. The learned District Judge accepted the respondent 's contention on the question of applicability of the provisions of the Act to the premises in question on the ground that it is located within two kilo metres of Ferozabad municipal limits. section 20(1) of the Act lays down that save as provided in sub section (2), no suit shall be instituted for eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiry of a notice to quite or in any other manner. The present suit is not based on any of the grounds mentioned in s.20 (2) of the Act and though the respondent is alleged to have been in arrears of rent to the extent of Rs. 3, 960/ there is no allegation in the plaint that he is in arrears of rent for not less than four months and had failed to pay the same to the appellant within one month from the date of service upon him of a notice of demand, which is the ground mentioned in clause (a) of s.20(2) of the Act. In these 589 circumstances, the learned District Judge should have normally dismissed the suit for want of jurisdiction in view of s.20(1) of the Act on his finding that the Act is applicable to the premises. It is not known why he did not do so, but on the other hand proceeded to hold that the deposit by the respondent is not unconditional as required by s.20(4) of the Act and ordered his eviction on that basis. We entirely agree with the learned Judges of the High Court that the deposit of the amount on the first hearing date, made up of rent at the rate of Rs. 360 per mensem as claimed in the plaint and interest and costs could not be said to be not unconditional merely because the respondent had contended in the written statement that the rent was only Rs. 125 per mensem and he did not succeed in proving it at the trial. It is not possible to construe s.20(4) in the manner done by the learned District Judge as that would amount to foreclosure of any defence regarding the quantum of rent even in cases where the amount alleged by the landlord is more than the real rent agreed between the parties. In this connection Mr. Kacker, learned Counsel appearing for appellant relied strongly upon the following observation made by Balakrishna Eradi, J, speaking for himself and Pathak and Venkataramiah, JJ. in Mangal Sen vs Kanchhid Mal : "The provisions of sub section (4) will be attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlord 's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub section (1) of section 30. There is absolutely no material available on the record to show that the alleged deposit of Rs. 1,980 was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord. The deposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto 590 that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant defendant in the written statement was that since he had stood surety for the landlord for arrears of sales tax, there was no default by him in the payment or rent. In the face of the said plea taken in the written statement, disputing, the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20(4). In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub section (2) of the said Section. " The above principle cannot apply to the facts of the present case, for in that case it was not clear whether the deposit of the correct amount was made within the time fixed in s.20(4) of the Act whereas in the present case it has been found by the learned District Judge that the arrears of rent at the rate claimed in the plaint together with interest and costs had been deposited within the time mentioned in section 20 (4) of the Act. Mr. Kacker next drew our attention to the language used in s.20(4) and s.39 of the Act and submitted that whereas the provisions of s.39 are mandatory the Rent Controller has a discretion in s.20(4) in lieu of passing a decree for eviction on the ground of failure to deposit the arrears, interest and costs within the period mentioned in s.20(4) to pass an order relieving the tenant against his liability for eviction on that ground and that the High Court exercising revisional jurisdiction under section 115 C.P.C. should not have interfered with the discretion exercised by the learned District Judge in ordering eviction and set aside that order especially in view of the fact that the respondent had failed to prove that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem. We do not agree. The Act is a social piece of legislation which leans in favour of tenants. Merely because 591 the tenant had failed to prove his case that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem, the discretionary relief could not be denied to him even though he had deposited the arrears of rent at the rate claimed by the landlord in the plaint together with interest and costs within the time mentioned in s.20(4) of the Act. It is not possible to lay down any broad and general proposition that the discretionary relief should be denied to the tenant in all cases where he fails to prove his case regarding the quantum rent even though he had deposited the rent at the rate claimed by the landlord in the plaint together with interest and costs within the time as required by s.20(4) of the Act. For the reasons mentioned above we are of the opinion that no interference with the decision of the High Court is called for in this case. The appeal fails and is dismissed with costs. N.V.K. Appeal dismissed. [/INST]By virtue of Entry 36 of the First Schedule in the "footwear and parts thereof" in or on relation to the manufacture of which any process is ordinarily carried on with the aid of power, is chargeable to excise duty, the rate of duty being 10% ad valorem in respect of "footwear" and 15% ad valorem in respect of "parts of footwear". By a Notification dated July 24, 1967, issued In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government exempted, with effect from the 26th May, 1967, footwear falling under item No. 36 of the First Schedule to the , of which the value did not exceed Rs. 5 per pair from the whole of the duty of excise leviable thereon. During the year 1967 and 1968, Bata Shoe Company was manufacturing certain items of footwear of which the wholesale price was Rs. 6.25 per pair. The contention of the company that since the assessable value of such items of footwear calculated in terms of section 4 of the Act, as it stood at the relevant time was only Rs. 4.94 and thus less than Rs. 5 per pair were qualified for exemption under the Notification was negatived by the department on the ground that while computing the value of the articles for the purpose of judging the applicability of the exemption, the duty element of the cost structure could not be deducted from the wholesale price and on such calculation the value of such footwear would exceed Rs. 5 per pair. Three Writ Petitions were, therefore, filed in the High Courts of Patna, Calcutta and the Punjab & Haryana, since the company had three manufacturing establishments attracting the jurisdictions of these Courts. The Patna High Court allowed the writ petition accepting the contention of the company and granted certificate of appeal to the department. The High Court of Calcutta 961 dismissed the petition and accepted the stand of the Department that the expression "value" occurring in the Notification dated July 24,1967 is not the deemed "value" calculated according to the provisions of section 4 of the Act, but is the real and actual "value" of the goods after the payment of the duty. The High Court of Punjab & Haryana dismissed the petition in limini on the ground of laches. Both these two High Courts, however, granted certificate of appeal to the company. Hence the three appeals by certificates. Allowing the appeals of the company and dismissing the State appeal, he Court, ^ HELD 1.1 While computing the "value" of the articles of footwear for the purposes of testing the availability of the exemption granted under the Notification dated July 24,1967 section 4 of the gets attracted. Section 4 is comprehensive in its coverage and it lays down the procedure to be followed for determination of "value" of any article in every case where the article is chargeable with duty at a rate dependent on the value of the article. [966H, 967A] 1.2 While the notification makes it clear that the effect of the Notification is to render the changeability or otherwise to duty of excise of footwear falling under item 36 of the First Schedule is made wholly dependent upon the "value" of the article of footwear; in case such "value" exceeds Rs. 5 per pair, duty will be chargeable at the rate of 10%. whereas if the value does not exceed Rs.5 per pair, no duty will be chargeable on such items of footwear, that is the rate of duty will be nil. Thus entry 36 read along with the Notification dated July 24, 1967 clearly shows that the changeability to duty in respect of any article of footwear is made dependent upon its value in tho sense that the chargeability to duty of excise will arise only if the "value" of the article does not exceed Rs. 5 per pair. [966D E, 967A B] 1.3 Before determining the question of availability of the exemption under the Notification dated July 24, 1967, the first essential step, therefore, is to determine the "value" of the article in the manner prescribed in section 4 of the Act. The fact that on such a computation the article may ultimately be found to be exempted from excise duty does not have any bearing on the question of applicability of section 4 of the Act for determining the ' 'value" for purpose of duty. [967B D] 1.4 The expression 'I`or the purpose of duty" occurring in section 4 has a wide import. For all purposes connected with the determination of chargeability and levy of duty the provisions of the section are to be applied for computation of the "value" of the article. Under the Explanation to section 4, it is mandatory that in determining the price of an article both trade discount as well as the amount of duty calculated as payable on the wholesale cash price payable at the time of removal of the article based on the wholesale cash price referred to in clause (a) are to be deducted from such wholesale price. [967D E] In the instant case, in as much as the value of the articles of footwear in 962 question calculated in accordance with the provisions of section 4 of the Act did note exceed Rs.5 per pair, the articles in question were exempted from the charge to duty of excise under the Notification dated July 24, 1967 and the company is entitled, forthwith, to a refund of the amounts of duty illegally realised by the Department. [967G H] The Collector of Central Excise, Patna & Ors. vs The Bata Shoe Company (P) Ltd. AIR Patna approved. The Bata Shoe Company (P) Ltd. vs The Collector of Central Excise & Ors., Calcutta, AIR Calcutta : The Bata Shoe Company (P) Ltd. vs The Collector of Central Excise & Ors., AIR Pun jab & Haryana reversed. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 530 of 1963. 14 Appeal from the judgment and order dated February 14, 1963, of the Madhya Pradesh High Court in First Appeal No. 34 of 1962. U.M. Trivedi, Malik Arjun Das, Shanti Swarup Khanduja and Ganpat Rai, for the appellant. G.S. Pathak, U.N. Bhachawat, Rameshwar Nath and S.N. Andley, for respondent No. 1. October 3, 1963. The Judgment of the Court was delivered by SHAH J. Eight candidates (including the appellant Mohan Singh and the first respondent Bhanwarlal) filed nomination papers for election to the Madhya Pradesh Legislative Assembly from the Sitamau constituency. The nomination of one Hussain Khan was rejected by the Returning Officer at the initial scrutiny and another candidate Himmat Singh withdrew his candidature before the date of polling, which took place on February 24, 1962. On the counting of the votes Mohan Singh was found to have secured the largest number of votes at the election, and he was declared elected. Bhanwarlal applied under section 80 read with sections 100 and 101 of the Representation of the People Act (43 of 1951), to the Election Commission of India for an order declaring the election of Mohan Singh void, and Mohan Singh disqualified because of committing corrupt practices detailed in the petition and for an order declaring the applicant Bhanwarlal elected. Among the many grounds of corrupt practices alleged in the petition, two grounds set out in cls. (c) & (d) of para 11 of the petition survive for consideration in this appeal. It was averred in these clauses that Mohan Singh the successful candidate had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of the applicant Bhanwarlal which were false and which Mohan Singh believed to be false or did not believe to be true and that the statements were calculated 15 to prejudice the prospects of Bhanwarlal at the election. Copies of the two leaflets were annexed to the petition, and were marked annexures 'D ' & 'E '. The petition was referred for trial by the Election Commission to the Election Tribunal, Ratlam, under section 86 of the Representation of the People Act. Mohan Singh by his written statement denied that he had published the leaflets and submitted that the leaflets which appeared to have been published by the electorate contained "a factual and fair criticism of the public; activities" of Bhanwarlal and that they were not calculated to prejudice his prospects at the election. Mohan Singh applied to the Tribunal for an order dismissing the petition in limine on the ground, among others, that there was non compliance with section 82 of the Act, because one of the candidates at the election named Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of his candidature were made was not joined as a respondent. The Tribunal rejected the application for dismissal of the petition and held that it was established on the evidence that Mohan Singh and his agents did commit, amongst others, the corrupt practice defined in section 123(4) of the Act by publishing the leaflets, annexures 'D '& 'E ', containing statements which were false, to the knowledge and belief of Mohan Singh, and made with the knowledge that they would reasonably prejudice the election chances of Bhanwarlal. In coming to that conclusion the Tribunal primarily relied upon the testimony of one Rameshchandra, a compositor in the Maheshwari Printing Press, Mandsaur, and upon certain corroborative circumstances. In appeal by Mohan Singh against the order, the High Court of Madhya Pradesh on a review of the evidence agreed with the Tribunal that Mohan Singh was instrumental in getting printed leaflets annexures 'D ' & 'E ' and the leaflets were distributed in certain villages in the constituency by Mohan Singh and his agents Satyanarayan and Kailash. 16 In this appeal with special leave it was urged that the election petition filed by Bhanwarlal was liable to be dismissed in limine, as it did not comply with the requirements of section 82 of the Representation of the People Act. On the merits it was urged that Mohan Singh did not publish the leaflets annexures 'D ' & 'E ' and that in any event the publication did not constitute a corrupt practice within the meaning of section 123 (4) of the Act. Whether for alleged non compliance with the requirements of section ,82 of the Act, the petition by Bhanwarlal was not maintainable must first be determined, for if the petition did not comply with the mandatory provisions of the statute, irrespective of whether a corrupt practice was committed by Mohan Singh, the petition must stand dismissed without further investigation. In paragraph 11(b) of the petition it was averred that on January 20, 1962, Mohan Singh, "offered at Nahargarh to Shri Himmat Singh an independent candidate to help him in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the election. That as a consequence of this offer of illegal gratification Himmat Singh withdrew his candidature from the Sitamau Assembly constituency. " The language used is somewhat ungrammatical, but the purport is clear that Mohan Singh with a view to persuade Himmat Singh to withdraw from the election offered to help him to secure employment with the Dalauda Sugar Factory, or with some other employer, and in consequence of this offer which amounted to illegal gratification Himmat Singh had withdrawn himself from being candidate at the election for the Sitamau constituency. Section 123 (1) defines the corrupt practice of "bribery" and by el. (B) receipt of, or agreement to receive, any gratification, whether as a motive or a reward (a) by a person for standing or not standing as, or for withdrawing from being, a candidate; or 17 (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw his. candidature, constitutes the corrupt practice of bribery by a person other than the candidate. It is submitted that by para 11 (b) it was averted that Himmat Singh who had filed his nomination paper had agreed to receive gratification, as a motive or a reward for withdrawing from being a candidate, and that it was necessary in view of section 82 of the Act to implied Himmat Singh as ?. party to the petition, and failure to implied him would involve dismissal of the petition. To appreciate the argument it is necessary to refer to certain relevant provisions of the Act. By section 80 no election is liable to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Section 81 prescribes the g. rounds on which, the persons by whom and the period during which an election petition may be presented, and also the procedure for presentation of the petition. By section 82 it is enacted that all contesting candidates shall be joined as party respondents where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, and where no such further declaration is claimed, all the returned candidates shall be joined. Again where allegations of corrupt practice are made against another candidate, such other candidate shall be joined as a respondent. Section 79 which is the interpretation section in respect of Parts VI, VII and VIII (and section 82 occurs in Part VI) defines the expression "candidate" as meaning a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate. If the provisions, among others, 1/SCI/64 2 18 of sections 81 or 82 have not been complied with, the Election Commissioner must dismiss the petition (section 85), and if the Commission does not so order the Tribunal is enjoined by section 90(3) to dismiss the petition which does not comply with the provisions of sections 81 or 82. Himmat Singh had filed his nomination paper, and on that account by virtue of the definition of section 79 he was a candidate for the purposes of Parts VI, VII & VIII, and did not cease to be a candidate merely because he withdrew his candidature. If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could not be regarded as properly constituted unless he was impleaded as a respondent, for, by the definition of "candidate" in section 79(b), the expression "any other candidate" in s, 82(b) must include a candidate who had withdrawn his candidature. But in our judgment in para 11 (b) there is no allegation of corrupt practice against Himmat Singh. What is alleged is that Mohan Singh had offered to help Himmat Singh "in procuring a job in Dalauda Sugar Factory or elsewhere" and that as a consequence of that offer Himmat Singh had withdrawn his candidature from the election. There is no express averment in the petition about the acceptance of the offer by Himmat Singh, but it would border upon supererogation to insist that even if offer to help to procure a job amounted to offer of gratification, an allegation that in consequence of this offer Himmat Singh had withdrawn his candidature from the election did not amount to a plea of acceptance of that offer unless it was so expressly averred. However in our view a mere offer of help to secure employment without more is not offer of gratification within the meaning of section 123 (1) (B) of the Act. The expression "gratification" is not defined in the Act but the Explanation to sub section (1) of section 123 furnishes an indication as to what in the view of the Parliament amounts to gratification. The Explanation states: "For the purposes of this clause the term 'gratification ' is not restricted to pecuniary graft 19 fications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78. " The Explanation extends the expression "gratification" to include all forms of entertainment and all forms of employment for reward but not payment of bona fide expenditure incurred at or for the purpose of election if duly entered in the account of election expenses. Gratification in its ordinary connotation means satisfaction. In the context in which the expression is used and its delimitation by the Explanation, it must mean something valuable which is calculated to satisfy a person 's aim, object or desire, whether or not that thing is estimable in terms of money; but a mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification. There is no plea that Mohan Singh had offered employment to Himmat Singh with the Dalauda Sugar Factory or with another employer; it was merely alleged that Mohan Singh had offered to assist or help Himmat Singh in obtaining employment with the "Dalauda Sugar Factory or else where". The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification; and if gratification does not include all offers and acceptances of mere promises, but requires, to constitute it, an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money, a mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice. It was in the circumstances not necessary on the allegations made in para 11(b) of the petition to implead Himmat Singh as a respondent to the petition. We therefore agree 20 with the High Court, though for different reasons, that the petition filed by Bhanwarlal was not defective. Counsel for Mohan Singh challenged the finding of the High Court that Mohan Singh was instrumental in publishing the leaflets annexures 'D ' & 'E '. He urged that in the trial of an election petition approach to the evidence must be as in a criminal trial and no fact may be held proved unless it is established beyond reasonable doubt. The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit: the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. But the testimony of Rameshchandra corroborated by the circumstances set out in detail in the judgments of the Tribunal and the High Court was accepted and the testimony of witnesses for Mohan Singh who claimed that other persons without his consent or connivance were responsible for getting the leaflets printed was disbelieved. The evidence about the distribution of the leaflets in question by the appellant and his agents was also accepted by the Tribunal and the High Court. It was also found that these leaflets were distributed simultaneously. In recording their conclusions the Tribunal and the High Court did not proceed on mere grounds of probability. The findings recorded by the Tribunal and the High Court are therefore concurrent findings of fact rounded on appreciation of oral evidence and no ground is made out for departing from the settled practice of the Court against interference with those concurrent findings of fact. The next question to be considered is whether the publication of the leaflets amounts to commission of a corrupt practice within the terms of section 123 (4) of the Representation of the People Act, 1951. Section 123 sets out what the diverse corrupt practices recognised by the Act are. Clause (4) defines a corrupt practice by publication of false statements calculated 21 to prejudice the prospects of a candidate 's election. To bring a corrupt practice within the purview of el. (4) there must be a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent: the publication must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true, the statement must be in relation to the personal character or conduct of the candidate; and it must be reasonably calculated to prejudice the prospects of the candidates election. The expression "statement of fact" in section 123 (4) includes not only an express imputation but also an innuendo if one such may reasonably be raised from the language in which it is couched and the manner of its publication Annexure 'D ' is in Hindi. The caption of that leaflet is "The surety (security) of Shri Nahata has to be forfeited because he has defrauded the public and has shown his face after five years to take votes. " Counsel for Mohan Singh submitted that the expression "defrauded" is not a correct rendering into English of the Hindi expression "dhoka diya"; it means "misled". The caption is followed by a photograph of Mohan Singh together with his election symbol and it is stated that the ballot paper of Mohan Singh is of pink colour and that the election symbol is the picture of a tamp It then proceeds to state that "Sitamau constituency has awakened. Nahata (Bhanwarlal) has run away. Shinde, Kishen Gupta Patil Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security) is sure to be forfeited. " Then follow nine paragraphs the third of which alone is material. That para graph reads: "We have heard that your friend has collected 28 thousand rupees from several villages in the name of opium. The agriculturists did not get the licenses and those agriculturists who got them had to spend a lot of money and time and the licenses for opium were received on execution of bonds for 8 seers. " 22 The leaflet concludes by a note which reads: "Every voter will get ' two ballot papers one is of pink colour for Legislative Assembly for Thakur Mohan Singh . Put the seal on the symbols of lamp on both the ballots pink and white. You read this pamphlet and give it to your friends to spread the message from house to house. Submitted by Nahata Virodhi Morcha Sitamau Constituency. " Annexure 'E ' bears the caption: "The Bureaucrats of yesterday Congressmen of to day". It consists of two parts the first relates to certain allegations against one Dr. Raghubir Singh who it appears was a candidate from the constituency for Parliament and the second relates to Bhanwarlal. The portion dealing with Bhanwarlal Nahata states: "Let Sriman Shri 1008 of Shri Nahata tell? (1) Did you not defraud the agriculturists with respect to the licences of opium ? (the other six questions are not relevant, and need not be reproduced) Public has already decided and now it is not going to fall prey to your fraud and greed. On all sides "the public has decided to put seal on lamp and make it victorious. Therefore the congressmen should not be misled while making propaganda. Submitted by Goswami Mahant Ratnagir. " It is said that the last paragraph is not correctly rendered into English: it merely stated, it is urged, that the public have already known the truth and they are not going to fall a prey to the misleading promises and inducements etc. No authorised translation of the two leaflets is furnished, but we will proceed to ascertain the purport of the relevant parts of the two leaflets as incorporated in the printed book, with the modifications suggested by counsel for Mohan Singh. Paragraph 3 of annexure 'D ' as it stands rendered into English is not very clear in its import. To a person completely unacquainted with the local conditions the expression "in the name of opium" may convey no meaning. But in considering whether a 23 publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election. The test in cases under section 123(4) is whether the imputation beside being false in fact, is it published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election? And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them. It is common ground that in the territory which forms the Sitamau constituency, licences for cultivation of opium are granted by the authorities to agriculturists, and the statement made in paragraph 3 apparently is that Bhanwarlal had collected Rs. 28,000 from the agriculturists in the constituency for securing licences for cultivation of opium but the agriculturists did not get the licences and even those who obtained the licences had to spend considerable sums of money. The innuendo in the statement cannot be mistaken: it is that a large amount of money was collected from agriculturists by Bhanwarlal on the 'representation that he would obtain licences for opium cultivation, but he did nothing in that behalf and misappropriated the amount. That is further made clear by paragraph 1 in annexure 'E ' relating to Bhanwarlal. The form in which that allegation is made is in the interrogative form. By annexure 'E ' certain questions were addressed to Bhanwarlal and one of the questions was whether he had not defrauded the agriculturists with respect to the licences of opium? The interrogative form is often employed not with a view to secure information but to make and emphasize an assertion. The use of the interrogative form would not make the statement any the less an imputation if it is fairly capable of being 24 so read. As we have already observed the evidence establishes that the leaflets annexures 'D ' & 'E ' were published simultaneously and annexure 'D ' contains an allegation about the collection of Rs. 28,000 by Bhanwarlal Nahata "in the name of opium", and in annexure 'E ' an express imputation of defrauding the agriculturists in the matter of licences for opium cultivation is made. On a reasonable reading of these two leaflets there was no doubt that the person responsible for the publication of these two leaflets intended to convey that Bhanwarlal had deceived the agriculturists into parting with the sum of Rs. 28,000 on the representation that licences for cultivation of opium would be obtained for them. The two leaflets also clearly imply that he misappropriated the fund collected by him. Bhanwarlal denied that he had utilised any fund collected from the agriculturists for his own purposes. He stated that some amounts of money were collected from cultivators of opium by the District Congress Committee, and receipts were given by the District Congress Committee in respect of those collections on behalf of the District Congress Committee. He denied that he had misled the agriculturists or that he had misappropriated any amount collected from the agriculturists. He asserted that the amounts collected from the agriculturists were for the District Congress Committee, and did in fact go to that body. The imputation is undoubtedly in relation to the personal conduct of Bhanwarlal, and if the testimony of Bhanwarlal be accepted, the imputation must be held to be false. No attempt was made at the trial to prove the truth of the imputations. Even in the written statement filed by Mohan Singh it was not his plea that the imputations against Bhanwarlal were true or that he believed them to be true. From the manner in which and the time when the leaflets annexures 'D ' and 'E ' were published, there can be no doubt that those leaflets were published as a part of a political campaign to injure the prospects of Bhanwarlal at the election, and if without making an 25 enquiry about the collection of the amount of Rs. 28,000 and the destination therefore, it was imputed against Bhanwarlal that he had defrauded the agriculturists and misappropriated the amount collected, the inference that the statement made was to the knowledge of the maker false or was not believed by him to be true, would readily be made. The imputation was on the face of it one reasonably calculated to prejudice the prospects of the candidate Bhanwarlal at the election. The High Court was therefore right in holding that the corrupt practice charged against the appellant Mohan Singh under section 123 (4) was established. The appeal fails and is dismissed with costs. Appeal dismissed. [/INST]The appellant was declared elected to the Madhya Pradesh Legislative Assembly. Another candidate Himmat Singh withdrew his candidature before the date of polling. Respondent 1 one of the defeated candidates, challenged the election by a petition under the Representation of the People Act alleging that the appellant had disqualified himself by committing corrupt practices. It was alleged that he had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of respondent 1 which were false and which the appellant believed to be false or did not believe to be true and that the statements were calculated to prejudice the prospects of respondent 1 at the election. The appellant denied 13 the said allegations and applied to the Election Tribunal for dismissing the petition in limine because Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of candidature were made, was not joined as a respondent. The Tribunal rejected the application and held that it was established on the evidence that the appellant did commit corrupt practice by publishing the two leaflets. In appeal the High Court agreed with the Tribunal. It was urged on behalf of the appellant that the election petition was liable to be dismissed in limine, as it did not comply with the requirements of s.82 of the Act, that the appellant did not publish the leaflets, and that in any event the publication did not constitute a corrupt practice within the meaning section 123(4) of the Act. Held: (i) The election petition was not detective. There was no allegation of corrupt practice against Himmat Singh. It was merely alleged that the appellant had offered to assist or help Himmat Singh in obtaining employment with "Dalauda Sugar Factory or elsewhere". The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification. Gratification does not include offers and acceptances of mere promises, but requires ,an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money. A mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice. On the allegations therefore, it was not necessary to implead Himmat Singh as a respondent to the petition. (ii) The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. (iii) In considering whether a publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election. The test in cases under section 123(4) is whether the imputation, besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. In ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them. </s>

<s>[INST] Summarize the judgementAppeals Nos. 130 and 131 of 1951. Appeals from. the Judgment and Decrees, dated the 12th August, 1948, of the High Court of Judicature at Calcutta in Appeals from Original Decrees Nos. 214 of 1942 and 231 of 1943 arising from the Decrees, dated the 16th June, 1942, of the Court of the Subordinate Judge, Burdwan, in Money Suit No. 261 of 1932/ Miscellaneous Case No. 132 of 1941 and Money Suit No. 262 of 1932/Miscellaneous Case No. 131 of 1941. N. C. Chatterjee (A. K. Dutt and Sukumar Ghose, with him) for the appellant. Manmohan. Mukherjee and P. K. Chatterjee for respondent No. 1. 989 1954. March 12. The Judgment of the Court was delivered by MUKHERJEA J. These two analogous appeals, which are between the same parties and involve the same points in dispute, are directed against a common judgment of a Division Bench of the Calcutta High Court dated the 12th of August, 1948, by which the learned Judges affirmed, in appeal, the decision of the Subordinate Judge of Burdwan passed in two analogous proceedings under section 36 of the Bengal MoneyLenders Act. The facts material for our present purpose lie within a narrow compass and may be stated as follows: The principal respondents are certain idols, represented by their managing Shebait Ram Govinda Roy. The idols are the family deities of the Roys of Bonpash in the district of Burdwan, and the number of Shebaits being very large, there is a recognised usage in this family that the seniormost member amongst the descendants of the founder acts as the managing Shebait and it is he who manages the endowed properties and looks after the due performance of the worship of the idols. It is not disputed by the parties that it is within the competence of the managing Shebait to borrow money to meet the necessities of the idols and to execute such documents as may be necessary for that purpose. Admittedly Adwaita Charan Roy was the managing Shebait of the deities from 1926 to 1930 and as Shebait, he executed a Hatchita in favour of one Nanitosh Chakraborty some time in April, 1928, on the basis of which he received advances of money from time to time from the latter. The last entry in the Hatchita was made in March, 1929, and the total amount borrowed up to that date came up to Rs. 3,801. Adwaita died in March, 1930, and after his death, Satish Chandra Roy became the managing Shebait and continued to act as such till his death in 1940. There was an adjustment of accounts between Nanitosh, the creditor,in whose favour the Hatchita was executed, and Satish Chandra, the managing Shebait some time in October, 1931, and a sum of Rs. 5,068, having been found due to the 128 990 creditor, Satish Chandra gave him a renewed Hatchita for that amount. It appears that while Adwaita was still the managing Shebait, a suit was instituted by some of his co Shebaits to remove him from his office and pending the hearing of the suit, Ramjanaki Roy, another co Shebait, was appointed a Receiver of the debutter property by the court. With the permission of the court, Ramjanaki borrowed from the same Nanitosh Chakraborty three sums of money on three different promissory notes executed respectively on the 27th September, 1929, 1st October, 1929, and 14th January, 1930. The suit was eventually dismissed for non prosecution after Adwaita 's death. Nanitosh died in 193 1, and in 1932) his two sons Aditya and Dhirendra, who figure as respondents 14 and 15 in these appeals, instituted two money suits against Satish Chnandra, the managing Shebait, in the Court of the Subordinate Judge, Burdwan, being Money Suits Nos. 261 and 262 of 1932, for recovery of the moneys due in respect of the Hatchita and the promissory notes mentioned aforesaid. Both the suits were decreed on the basis of a compromise dated the 23rd July, 1933, and two consent decrees were passed, one for a sum of Rs. 5,800, and the other for Rs. 2,200, both payable in sixteen yearly instalments with a further stipulation that in default of payment of any one of the instalments, the whole or balance of the decretal amount would become due and payable in each. The instalments not having been paid in either of the cases both the decrees were put into execution. In Execution Cases Nos. 76 and 77 of 1936, arising out of Money Suits Nos. 261 and 262 of 1932, the properties mentioned in Schedule Ka in each case were put up to sale and they were purchased ostensibly by the two decreeholders Aditya and Dhiren. Three years later, Execution Cases Nos. 17 and 18 of 1939 were started again in connection with the said decrees and this time the properties specified in Schedule Kha were attached and put up to sale and they were also purchased by the Chakraborty decreeholders. Finally, in Execution Cases Nos. 163 of 1939 and 5 of 1940, the properties described in Schedule GA were sold and 991 they were, knocked down to Srimati Oramba Sundari Dasi, who figures as the appellant in the appeals before us and who, it may be noted, is the wife of Aghore Nath Roy, a son of Adwaita, the former managing Shebait of the debutter estate. Subsequently, the decreeholders, who purchased Ka and Kha Schedule properties sold them by a registered Kobala to the said Oramba Sundari Dasi on the 26th of July, 1940. The result, therefore, was that the properties described in the three Schedules came to vest in Oramba Sundari, the wife of Aghore Nath Roy. On the 28th August, 1941, the deities represented by some of the Shebaits filed two applications under section 36 (6) (a) (ii) of the Bengal Money Lenders Act praying for the reopening of the two compromise decrees mentioned aforesaid and the passing of. new installment decrees in accordance with the provisions of the Act. There were prayers also for restoration. to the deities of all the properties mentioned in Schedules, Ka, Kha and Ga which were purchased in execution of the decrees. The principal opposite parties to these proceedings were the Chakraborty decreeholders, Oramba Sundari, the ostensible purchaser, and Aghore Nath Roy, her husband. The allegations in the applications, in substance, were that the Chakrabortys were mere benamidars for Aghore Nath Roy, who was the real lender and the real decreeholder in both these suits. It was alleged that Aghore Nath Roy purchased these properties in the benami of the decreeholders in two out of the three execution proceedings and in the benami of his wife Oramba Sundari in the third. The subsequent Kobala executed by the Chakrabortys in favour of Oramba . Sundari was also asserted to be a fictitious conveyance made in favour of Aghore Nath Roy in the name of his wife. In these circumstances, the judgment debtors prayed that they were entitled to have the two compromise decrees reopened and on the passing of new instalment decrees to have the properties, which were in possession of the real decreeholder, restored to the deities in terms of section 36(2)(c) of the Bengal Money Lenders Act. The trial judge decided 992 in favour of the judgment debtors and granted their prayers in both the applications. Orders were made for reopening of the decrees and making of fresh decrees in their places in accordance with the provisions of the Bengal Money Lenders Act. Direction was also given for restoration of the properties mentioned in Schedules Ka, Kha and Ga to the deities under the provision of section 36(2)(c). Against this decision, Oramba Sundari took two appeals to the High Court of Calcutta and the learned Judges, who heard the appeals, affirmed the decision of the court below and dismissed both the appeals. Oramba Sundari has now come up in appeal to this court on the strength of a certificate given by the High Court under sections 109 (a) and 110 of the Civil Procedure Code. Mr. Chatterjee who appeared in support of the appeals, has not challenged before us the findings of fact concurrently arrived at by the courts below, viz. ,that the appellant Oramba Sundari was a mere benamidar for her husband Aghore in respect of the purchase of Ga Schedule properties in court sale, and also that the Kobala executed by the Chakrabortys in her favour on July 26, 1940, was a fictitious transaction. The point, which he has pressed for our consideration, is that in a proceeding under section 36 of the Bengal Money Lenders Act, it is not open to the court to go behind the decree and launch an enquiry as to whether the decreeholders on record were in fact benamidars for another person. In other words, the contention is that, even if Aghore was proved to have advanced the money upon which the Chakrabortys obtained the decrees, in reopening the decrees and in working out the rights of the parties in accordance with the provisions of the Bengal Money Lenders Act the court could treat the Chakrabortys alone as the decreeholders. For a proper determination of this point, it is necessary to examine the scope of section 36 of the Bengal Money Lenders Act and the reliefs which the Court is competent to grant in terms of that section. Section, 36 of the Bengal Money Lenders Act sets out the various powers which the court can exercise, 993 if it has reason to believe that the exercise of one or more of the powers will give relief to the borrower as contemplated by the Act; and one of the powers, which is mentioned in clause (a) of sub section (1) of the section is to reopen any transaction and take an account between the parties. The drafting of section 36 is indeed obscure and somewhat clumsy, but it is clear, as the Privy Council (1) has pointed out, that the power of reopening a transaction, as contemplated by the section, extends to reopening of decrees as well. Sub section (2) of section 36 contains detailed provisions as to what the court may or may not do when a decree is reopened. It cannot be disputed that the court reopens a decree under section 36(2) only for the purpose and so far as it is necessary to give relief to the borrower in the manner provided for in the Act, namely, to release him from all liability for interest in excess of the limits prescribed by section 30 of the Act. A new decree is passed only for the purpose of substituting the method of accounting sanctioned by the Act for the calculations upon which the original decree was passed and to give an opportunity to the judgment debtor to pay the decretal dues thus ascertained by instalments. But save and except for these, the old decree as well as the adjudications made thereunder are not wiped out and the parties are not relegated to their rights and liabilities under the original cause of action (2). How the rights of the parties are to be adjusted and worked out when a decree hat; been reopened has been dealt with exhaustively in the several clauses of section 36 (2) of the Bengal Money Lenders Act, and an examination of these clauses makes it clear to our minds that an enquiry as to whether the decree holder was in fact a benamidar for another person in respect of the decree, does not come within the purview of these provisions. Clause (a) of section 36(2) empowers the court to pass a new decree in accordance with the provisions of the Act. Obviously, this new decree is to be passed in favour of the original decreeholder and only the calculations upon which the old (1) Vide Renula vs Manmatha, 72 I.A. 156. (2) Vide Bank of Commerce Ltd. vs Amulya Krishna Babu Roy Chowdhury 994 decree was based would be changed by substituting the statutory method of accounting in place of what rested upon the contract between the parties. Clauses (b) and (C) contemplate cases where properties have been sold in execution of the original decree. If the purchaser is the decreeholder, himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment debtor under clause (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decreeholder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by clause (b). Under clause (d), the court has to order the payment of the decretal amount in such instalments as it thinks proper, and clause (e) further imposes a duty on the court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment debtor under clause (e) would be put back into the possession of the decreeholder. It is quite true that the object of restoring possession of the properties sold in execution of the decree to the judgment debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decreeholder purchaser. We agree that if the purchaser is a mere benamidar for the decreeholder, clause (b), subsection (2) of the section would not afford protection to him in any way. He could not be regarded as a person other than the decreeholder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to clauses (b) and (c), therefore, the court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decreeholder purchaser, has bonafide acquired such rights within the meaning of clause (b). But we do not agree with the learned 995 Judges of the High Court that in making a new decree under clause (a) of section 36(2) and giving the judgment debtor consequential relief under clause (c) of the sub section, the court can at all enter into the question as to whether the decreeholder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of section 36(2) of the Bengal Money Lenders Act. These provisions do not recognise any other decreeholder than the one in whose favour the original decree was passed. It is between him and the judgment debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he had purchased in execution proceedings. None but the decreeholder on record can give a valid discharge or record satisfaction of the decree. This being the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who, really advanced the money upon which the decrees were obtained. We must treat the Chakrabortys and the Chakrabortys alone as the decreeholders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Ka and Kha are concerned, it is not disputed that they were purchased by the decreeholders themselves. No price was actually paid by the decreeholders, but the sale proceeds were set off against the decretal dues. The decreeholders, therefore, must be deemed to be the purchasers of these properties within the meaning of clause (c) of section 36(2); and as the subsequent conveyance of these properties in favour of Oramba Sundari, the appellant, has been held by both the courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under clause (b) of section 36(2). With regard to these properties, therefore, the order for restoration of possession made by both the courts below should stand. As regards Ga 996 Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decreeholders and there is no proof of the decreeholders being in possession of the same either by themselves or through Oramba Sundari. In these circumstances, clause (e) of section 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the courts below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals. Appeal partly allowed. [/INST]The appellant had dealings with the respondent in respect of a ruqqa and a mortgage. The respondent filed two suits against the appellant for recovery of the moneys due on the ruqqa and the mortgage respectively. The summons in the suits was not duly served on the appellant and the suits were decreed ex parte. The appellant then filed an application to set aside the ex parte decree in the suit on the ruqqa. The court passed an order on 16th August 1958. , setting aside that ex parte decree and also informed the appellant who was present in court on that day, of the passing of the ex parte decree in the mortgage suit. On 16th April 1959 the appellant filed an application for setting aside the ex parte decree in the mortgage suit. The trial court and the High Court held that the application was barred by limitation under article 164 of the Indian Limitation Act, 1908, as more than 30 days had expired after the appellant had knowledge of the ex parte decree. In appeal to this Court, HELD The application was rightly dismissed. Under article 164 of the Limitation Act, the period of 30 days is counted, when the summons is not duly served, from the date when the applicant had knowledge of the decree; and the expression "knowledge of the decree" means knowledge of the particular decree which is sought to be set aside. It is a question 'of fait 'in each case whether the information` conveyed is sufficient to impute the knowledge, and, the test is not what the information would mean to a stranger, but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him [759 B; 760B D] Pundlik Rowji vs Vasantrao Madhav Rao 11 B.L.R. 1296; Kumud Nath, Roy Choudhury vs Jotindra Nath Chowdhury I.L.R. ; Bapuraa Sitaram Karmarkar vs Sadbu Bhiva Gholap. I.L.R. and Batulan.v. S.K. Dwivedi, I.L.R. 33 Patna, 1025, approved. </s>

<s>[INST] Summarize the judgement: Criminal Appeal No. 74 of 1971. Appeal by Special Leave from the Judgment and order dated the 25th January 1972 of the Bombay High Court in Criminal Appeal 1025 of 1959. N. H. Hingoorani and Mrs. K. Hingoorani for the Appellant. section B. Wad and Al. N. Shroff for the Respondent. The Judgment of the Court was delivered by V BEG, J. The appellant before us by special leave to appeal was convicted under Section 135(b) (ii) of the (hereinafter referred to as 'the Act '), and sentenced to six months rigorous imprisonment and a fine of Rs. 2,000/ , and, in default, to three months further rigorous imprisonment. Goods in respect of which this offence was found to have been committed were also confiscated. 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 partitions 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 1200 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". On the wooden boxes containing the lighters were found written "Dubai" and "Made in Austria". The five boxes containing flints had the words "Dubai" and "Made in West 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 541 with the Godrej lock and the keys produced by the appellant. Subsequently, the seized articles were made over to the inspector of Central Excise and Customs, Marine and Prevention Division, Bombay, on 24 4 1967, under Section 110 of the . The value of 7200 cigarette lighters was stated as Rs. 14,400/ and of 250 tins of flints as Rs. 15,000/ on which Customs duty of Rs. 15,840/ and Rs. 10,500/ respectively was alleged to be payable. In the complaint filed on 30th October, 1968, by the Assistant Collector of Central Excise, Marine and Prevention Division, Bombay, it is alleged that the cigarette lighters and flints were imported into India without an import licence and in contravention of provisions of Government of India, Ministry of Commerce & Industry, Import Control order No.17/55 dated 7 12 1955 (as amended) issued under Section 3(2) of the Import & Export (Control) Act, 1947, which was to be deemed to be an order passed under Section 11 of the Act. It was submitted that the accused, having been concerned in a fraudulent evasion of payment of Rs. 26,340/ as customs duty to the Government, had committed offences punishable under Section 135(a) and (b) of the Act. The goods were also as a necessary consequence, said to be liable to confiscation under Section 111 (d) of the Act. The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession He alleged that the portion of the room from which the goods were recovered was sublet to Dwarumal and Kishen who had kept the goods there. The appellant 's explanation had been disbelieved by the trying Magistrate as well as by the High Court. The production of the key which, according to the prosecution evidence, the appellant had at first refused to produce, proved that the portion in which the boxes were kept was in appellant 's exclusive possession with all that was contained in it. It is possible that he may have sub let other portions of the partitioned room to other persons, but there is no reason to doubt that the appellant was not only in possession of the bodies but knew something about the incriminating nature of their contents. Otherwise, why should he, at first, have refused to produce the key he had ? Furthermore, the appellant had not given any evidence to show that his sub tenants had placed the boxes there, or that there was any reason why he should allow them to use the portion reserved by him for himself. His case rested on his bare assertions in a written statement. Of course, no one had come forward to state or allege that the goods found, in the circumstances stated above? had been imported without payment of duty. The only question raised before us was whether the presumption contained in Section 123 of the Act, corresponding to Section 128(A) of the . Or any other provision of law would place the onus of proving innocent possession of these goods upon the appellant. Section 123 of the Art reads as follows: "123. Burden of proof in certain cases. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that 542 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. (2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the official Gazette specify". lt is true that lighters and flints were notified as provided in Section 123(2) in the official Gazette of 26 8 1967. Nevertheless, as the provisions of Section 123(1) of the Act only lay down a procedural rule, they could be applied when the case came up for trial before the Presidency Magistrate who actually decided it on 15 7 1969. Indeed, the complaint itself was filed on 30 10 1968. It is immaterial that the appellant was found in possession of the goods on 21 4 1967 There is, however, another objection to the applicability of Section 123(1) of the Act. It is that it would apply only to goods seized under the Act. lt is contended that the goods in respect of which the appellant was prosecuted were not seized under the Act. Reliance was placed for this contention upon Gian Chand & ors. vs the State of Punjab (1) Even if the goods with which we are concerned here were not seized under the Act, as provided by Section 111 of the Act, it is contended on behalf of the State that Section 106, read with Section 114 of the Evidence Act, was sufficient to enable the prosecution to ask the Court to presume that the appellant knew that the goods must have been smuggled or imported in contravention of the law. The appellant had not produced evidence to show that the goods were legally brought into India. Reliance was placed on behalf of the prosecution on: Collector of Customs, Madras & ors. vs D. Bhoormal (2); M/s. Kanungo & Co. vs The Collector of Customs, Calcutta & Ors(3), Issardas Daulat Ram & ors. vs the Union of India & Ors.(4), Anant Gopal Sheorey vs The State of Bombay(5). Learned Counsel for the appellant had in his turn, relied upon The State of Punjab vs Gian Chand & ors.(6). He contended that it was necessary for the prosecution to prove: (1) that, the goods in question were actually smuggled or brought into the country without payment of customs duty at a time when payment of such duty had become obligatory; and, (2) that, the appellant was dealing with them knowing them to be smuggled goods. It was contended that mere possession by the accused of such goods could not enable the prosecution to apply Section 106 of the Evidence Act when the appellant could not know where the goods came from. It was urged that there was no evidence which could enable the appellant to know where the goods came from or when the goods were imported or that duty, if leviable was not P d on them. The admissibility and sufficiency of (1) [1962] (Suppl.) 1 S.C.R. 364. (2) ; (3) A.I.R. (4) [1962] Suppl. (1) S.C.R. 358. (5) ; (6) Criminal Appeal No. 195 of 1962 decided by this Court on 2 4 1968. 543 the inscriptions on the goods and the writing on boxes in which they were found, for proving the place from where they came, or when they were imported, were questioned. The contention was, that even if the appellant is deemed to be in possession with full knowledge of what the goods actually were, the Court could not go further and assume them to be smuggled or imported into the country from another country of their assumed origin after a time when the restrictions on their import had been imposed. Unfortunately, the appellant did not admit the possession of the goods at all. If he could have succeeded in explaining satisfactorily how he was an innocent receiver of such goods without knowing that they were illegally imported or smuggled he may have had a chance of getting the benefit of doubt 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 or 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 could arise. The appellant 's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or means rea. In any case, 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 a party to a fraudulent evasion of duty. Consequently, the appellant had been convicted only under Section 135(1)(ii) of the Act. We do not find sufficient reasons to interfere with this finding of fact or the sentence imposed. It would also follow that the goods were rightly confiscated. Accordingly, this appeal is dismissed. V.M.K. Appeal dismissed. [/INST]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. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1295 of 1973 From the Judgment and Order dated 14.12. 1972 of the Allahabad High Court in Civil Revn. Petition No. 1572 of 1969. P.H. Parekh and Suhail Dutt for the Appellant. Prithvi Raj, Mrs. Shobha Dikshit and Sudhir Kulshreshta for the Respondent. The Judgment of the Court was delivered by THAKKAR, J. The proposition canvassed by the appellant, namely, that from the point of time that an order for rate able distribution is passed by the executing court the monies in question cease to be 928 the property of the judgment debtor and 'become the property of the decree holder, regardless of whether or not actual payment pursuant to the said order is made, is supported by the decisions of three High Courts namely, Madras, Calcutta and Bombay. As early as in 1922 the Madras High Court in Official Receiver of Tanjore vs M.R. Venkatararna lyer, AIR 1922 Madras p. 31 has taken the view canvassed by the appel lant as is evident from the passage quoted hereunder: "It seems to me that from the time of the order of rateable distribution the money must be treated as belong ing, not to the judgment debtor, Nataraja lyer, but to the decreeholder in whose favour the order was passed. Mr. Devadoss for appellant contended that the effect of a rate able distribution order is merely to allocate the money to the different suits without affecting its ownership. The latter, he says, still rests in the judgment debtor by the sate of whose property it was allocated. I do not think this is so. The section does not speak of distribution among the decree holders. The latter are entitled to draw it out at will; and the judgment debtor most certainly is not. I think the money in this case must be treated as the property of the decree holder, the present respondent and that the Official Receiver could no more recover it from the respond ent if it had actually been paid out to him by court. Mr. Devadoss eventually admitted that he could not recover the money in the circumstances of the present case if it had passed into respondent 's possession. I would dismiss the appeal with costs. " A learned Single Judge of the Calcutta High Court has expressed the same view in Murli Tahilram vs T. Asoornal & Co., AIR 1955 Calcutta p. 423, wherein it is observed: "But where a private citizen has sued another to judgment and has in fact got by an order of Court a Receiver appoint ed of his goods and such goods have been sold by the Receiv er under orders of the Court and where there has been a prior direction in the Court 's order to pay the sale pro ceeds to the private judgment creditor, a subsequent claim by the State for arrears of sales tax cannot defeat the judgment creditor or deprive him of the fruits of his decree which is regarded as property. " 929 And the same view has been reiterated by a Division Bench of the Calcutta High Court in Basanta Kumar Bhattacharjee vs Panchu Gopal Dutta & Ors., AIR 1956 Calcutta p. 23 where in the Court has made recourse to the following reasoning to support the proposition: "This contention, we think, should prevail. The order allowing the application for rateable distribution that was passed on 2 12 1953 should, we think, be reasonably read as deciding that the decree holders had title to the money. What remained to be done was the ascertainment of the exact amount which each decree holder was entitled to and payment of the same. The decision as regards title had already been made and with the decision that 'the money was the decree holder 's money, the position, in our opinion, was that it could no longer be considered in law to be the judgment debtor 's money. The question of priority of the State 's claim does not, therefore, fail to be decided. On the date the letter of attachment of the Certificate Officer was received, there was no money belonging to the judgment debtors in the hands of the Court. " The High Court of Allahabad which has differed from the aforesaid High Courts by the judgment under appeal has proceeded on the assumption that the High Court of Bombay has taken a contrary view in Income tax Officer, Ward C, Sangli & Ant. vs Chandanbai Balaram Doshi & Ors., AIR 1957 Bombay p. 91. We are afraid, by the High Court of Bombay in the said case the principle enunciated has been misunder stood. No order for rateable distribution had been passed by the executing court in the said case. Even, so, while dis cussing the law on the subject in the context of the scheme of the C.P.C., the High Court of Bombay has articulated the principle thus: "The scheme clearly indicates that, until the Court has directed appropriation of the amount to the claim made by the decree holder or of creditors entitled to rateable distribution, the amount received in Court continues to remain as of the judgment debtor. " (Emphasis added) By necessary implication it means that as soon as an order for rateable distribution is made, the amount ordered to be distributed will cease to 930 be the property of the judgment debtor. We are of the same opinion as that of the High Courts of Madras, Calcutta and Bombay. As soon as the question of rateable distribution between the decree holders and the State having statutory priority is determined, and the Court passes an order as to how to appropriate the assets of the judgment debtor, the rights of the parties become crystalized. What then remains is to give effect to the determination made by the court by officials in charge of concerned departments dealing with Accounts and Cash which is a ministerial act. The rights of the respective decree holders or claimants are governed by the order for rateable distribution passed by the Court as a result of the adjudication and determination made by the Court. Nothing further remains to be done by the Court in the judicial sphere thereafter. The order partakes of the character of a judgment and decree passed by the Court. What the officials of the Accounts and Cash department are re quired to do thereafter is to carry out the command of the Court by implementing or giving effect to the order. The test which can be usefully applied is to pose the question whether the said officials can refuse to implement the order by refusing to make payment once the Court has passed the order. Obviously and undoubtedly they cannot. Therefore it is evident that nothing turns on whether or not actual payment pursuant to the order of the Court is made. And when the Court officials make payment to 'the decree holder, they make payment because the property in the said monies has vested unto them by virtue of the order of distribution passed by the Court. What is being paid by the officials of Accounts and Cash Sections will be the decree holder 's money, it having ceased to belong to the judgment debtor the moment the order for distribution was made, eventhough actual disbursement was made later. If the State lays its claim after the order for distribution is made by the Court, it will be of no avail as the property Would have gone beyond the reach of the State, it having ceased to be the property of the debtor against whom the State had a claim. No question of priority can arise in that situation the State having missed the bus. In the present case, the amount had ceased to be the property of the judgment debtor from the point of time that the order forateable distribution was passed by the executing court. There was no question there fore of the State being entitled to claim priority in re spect of the claims lodged by it subsequent to the order for rateable distribution. The High Court was thus in error in reversing the order passed by the executing court. We, therefore, allow the appeal, set aside the order of the High Court in so far as the appellant is concerned, and restore the order of 931 the executing court in so far as the appellant is concerned. The appeal is disposed of accordingly. There will be no order as to costs. A.P.J. Appeal dis posed of. [/INST]Section 481(1) of the Delhi Municipal Corporation Act, 1957 empowers the Corporation to make additional bye laws to the existing ones. Under the power so conferred the Corpora tion introduced Byelaw No.3(i) in the Cycle Rickshaw Bye laws, 1960, under which only an owner of the cycle rickshaw can obtain a licence to keep a cycle rickshaw or to ply for hire and only one such licence would be issued to a person. By necessary implication it excludes persons who own a number of cycle rickshaws from applying for licences and prohibits the hiring out of the cycle rickshaw by the owner in favour of a rickshaw puller against payment of considera tion. The Writ Petitioners are owners of cycle rickshaws. Some of them own two or more cycle rickshaws which are hired out by them to rickshaw pullen under a contract under which the rickshaw pullen have to pay some amount to the owners of the cycle rickshaws at the end of the day out of their earnings during the day. Being aggrieved by the introduction of Bye law No.3(i), they have moved the Supreme Court under Article 32 of the Constitution that the said Bye law is opposed to Article 19(1)(g) of the Constitution and also outside the scope of section 481 (1)L(5) of the Delhi Municipal Corpora tion Act, 1957. Dismissing the petitions, the Court, 906 HELD: 1.1 On a consideration of the language of clause (5) in section 481(1) L of the Delhi Municipal Corporation Act, 1957, it is clear that Bye law 3(1) falls within the scope of the power conferred on the Corporation to frame bye laws for the issue of licences in respect of cycle rickshaws which are kept or used for plying in the Delhi Municipal Corporation area. While framing bye laws under the above statutory provision it is permissible for the Corpora tion to restrict the issue of licences only to the owners of the rickshaws who themselves act as rickshaw pullers. This is apparently done to prevent exploitation of the rickshaw pullen by the owners of the cycle rickshaws. A licensing authority may impose any condition while issuing a licence which is in the interest of the general public unless it is either expressly or by necessary implication prohibited from imposing such a condition by the law which confers the power of licensing. The restriction imposed by the Corporation in the present case is in the interest of the general public. [910C E] 1.2 The Bye law No.3(1) cannot therefore be said to be either outside the scope of section 481 of the Corporation Act or opposed to the provisions of the Constitution. [911D] Azad Rickshaw Pullers Union (Regd) Ch. Town Hall, Amrit sar & Ors. vs State of Punjab & Ors., [1981] 1 SCR366 and Nanhu & Ors. etc. vs Delhi Administration & Ors., ; , referred to. Man Singh & Ors. vs State of Punjab & Ors., , followed. (The Court approved the two schemes of financial assist ance, put forward, at its instance, by the Bank of Baroda and the State Bank of India and the willingness of the Credit Guarantee Corporation of India (Small LOans) to guarantee the repayment of the loans advanced to the rick shaw pullers and directed, accordingly, the several branches of the Punjab National Bank, the Bank of Baroda and the State Bank of India operating in Delhi to give financial assistance to rickshaw pullers who wish to oWn cycle rick shaws and ply them under licences issued by the Corporation subject to their producing the necessary eligibility certif icate issued by the Corporation and satisfying the other terms of the Schemes, namely (i) the scheme for financial to cycle rickshaw pullers; and (ii) self employment programme for urban poor (SEPUP). The court also directed the Delhi Administration to comply with the directions issued in Nanhu </s>

<s>[INST] Summarize the judgementil Appeal No. 1520 (NT) of 1986. From the Judgment and Order dated 10.8.1977 of the Bombay High Court in I.T.R. No. 34 of 1968. V.S. Desai and Ms. A. Subhashini for the Appellant. Harish Salve, Mrs. A.K. Verma and Joel Peres for the Respondents. Three private limited companies, the Italindia Cotton Co. (P) Ltd., who is the assessee before us, the India Corporation (P) Ltd and the International Cotton (P) Ltd. were controlled by three groups of share holders, who may be described as the Chunilal Group, the Babubhai Group and the Purushottam Group. There was a change in the share holding of the three companies during the accounting year ending 3 1 March, 1963. The Chunilal Group acquired controlling interest in India Corporation (P) Ltd., the Babubhai group acquired controlling interest in the assessee company and the Purushottam Group acquired controlling interest in International Cotton (P) Ltd. The assessee suffered a loss in the accounting year ending 31 March 1960, relevant to the assessment year 1960 61, in the amount of Rs.12,172. This was available for a set off in a subsequent year. But having regard to the change in the share holding of the assessee during the accounting year ending 31 March, 1963 relevant to the assessment year 1964 64,the question arose whether the assessee was entitled to of carrying forward that loss for the purpose of computing PG NO 817 its assessable profits for that assessment year. The Income tax Officer held that section 79 of the Income tax Act, 1961 disentitled the assessee from claiming such a set off. He said that 51% of the voting power held by persons on the last day of the year in which the loss was suffered was no longer held by them on 31 March, 1963. On appeal by the assessee, the Appellate Assistant Commissioner of Income tax took a different view. He held that before the right to set off a loss could be denied to an assessee, not only should there be a change in the persons holding a voting power of not less than 51% but further the change should have been effected with a view to avoiding or reducing the liability to tax. The Revenue appealed to the Income Tax Appellate Tribunal. Upon an analysis of section 79 the Tribunal observed that the denial of the set off of a loss incurred in an earlier year was subject to two exceptions, the first being that the beneficial holding representing not less than 51% of the voting power should not change hands between the last day of the year in which the loss was incurred and the last day of the relevant previous year, and the second exception was that any change in the share holding contemplated by the parent provision should not have been effected with a view to avoiding or reducing any liability to tax. According to the Tribunal the two exceptions applied independently, and if either came into play the prohibition contained in section 79 against the setting off of a loss could not be invoked by the Revenue. It appears to have been admitted before the Tribunal that the assessee was not entitled to the benefit of the first exception, and in the view which it took it rendered no definite finding on whether the assessee fell within the terms of the second exception . At the instance of the assessee the Tribunal referred the following question to the Bombay High Court for its opinion: "Whether both the conditions mentioned in clause (a) and clause (b) of section 79 must apply for disentitling the loss of a prior year being allowed as set off in accordance with the substantive provisions of section 79 of the Income tax Act, 1961?" The High Court answered the question in favour of the assessee. holding that even if a change in the voting power of not less than 51% between the two relevant dates has taken place, for the Revenue to succeed such change should be effected with a view to avoiding or reducing any liability to tax. It observed that as the Tribunal had not considered the question whether the change in the voting power had taken place with a view to avoiding or reducing any liability to tax that question should now be decided by PG NO 818 the Tribunal before the claim for a set off could be finally disposed of. And now this appeal. Chapter VI of the Income tax Act, 1961 contains a number of provisions entitling the assessee to the carry forward and set off of a loss suffered by him. Section 70 provides for the set off of a loss from one source against income from another source under the same head of income. Section 71 provides for the set off of a loss from one head against income from another head. Section 72 entitles an assessee to carry forward and set off a business loss which could not be set off wholly during the year in which it arose. Then follow provisions relating to the setting off of losses in certain particular cases. Section 79, with which we are concerned, provides: "Notwithstanding anything contained in this Chapter, where a change in shareholding has taken place in a previous year in the case of a company, not being a company in which the public are substantially interested, no loss incurred in any year prior to the previous year shall be carried forward and set off against the income of the previous year unless (a) on the last day of the previous year the shares of the company carrying not less than fifty one per cent of the voting power were beneficially held by persons who beneficially held shares of the company carrying not less than fifty one per cent of the voting power on the last day of the year or years in which the loss was incurred; or (b) the Income tax Officer is satisfied that the change in the share holding was not effected with a view to avoiding or reducing any liability to tax." Section 79 is an exception to the scheme enacted in Chapter VI for the carry forward and setting off of a loss incurred in any earlier year against the income of the relevant previous year. The provision was enacted in the Income tax Act 1961 for the first time in order to deny that benefit to companies not being companies in which the public are substantially interested. On its plain terms section 79 provides that in the case of such companies, if a change in shareholding has taken place in a previous year, no loss incurred in any year prior to the previous year shall be carried forward or set off against the income of the previous year unless (a) both on the last day of the previous year and on the last day of the year or years in PG NO 819 which the loss was incurred the shares of the company carrying not loss than 51 per cent of the voting power were beneficially held by the same persons (b) the Income tax Officer is satisfied that the change in the share in holding was not affected with a view to avoiding or reducing any liability to tax. The question before us is whether the two conditions operate cumulatively or in the alternative. In other words, should both conditions exist together to nullify the prohibition against carry forward and set off of the loss? Upon careful consideration we are of opinion that the conditions are intended to operate as alternative to one another. If the terms of either cl.(a) or cl.(b) are satisfied, the disqualification suffered by a company, by reason of a change in share holding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward and set off of losses. The benefit is available notwithstanding the change in share holding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the change in shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to tax. The object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companies which had sustained losses in earlier years. It was not unusual for a group of persons to acquire a company, which had suffered losses in earlier years, in the expectation that the company would earn substantial profits after such acquisition, and they would benefit by a reduction of the tax liability on those profits on a set off of losses carried forward from earlier years before the acquisition. The acquisition of a company in such a case would be effected by a change in its share holding and the control over the company could be ensured by securing the beneficial ownership of shares carrying 51 per cent or more of the voting power. If the change in share holding did not result in holding voting power of 51 per cent or it was established that the shares of the company carrying not less than 51 percent of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company, and the disqualification imposed on the company because of the change in its share holding would stand removed. But there may be a change in the share holding, and it may result in a change of control of the company. Yet every PG NO 820 such change of shareholding need not fall within the prohibition. There can be a case where persons already owing a shareholding carrying less than 51 percent of the voting power in the company may enlarge their share holding during the previous year in order that control over the company may pass to them. Attempts to acquire control over a company by controlling a majority of the share holding are not unknown. The acquisition of control over a company provides a source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is affected with a view to avoiding or reducing some liability to tax. The change is effected not for business or commercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the share holding will tend to bring about the result which section 79 was designed to prevent. In our opinion, to avoid falling within the scope of section 79 it is sufficient for the assessee to show that the case attracts either cl. (a) of cl. If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of the Income Tax Act entitling him to claim a carry forward and set off losses suffered by the company in an earlier year or years against the income of the previous year. We are fortified in our conclusion by the view expressed by the Gujarat High Court in Commissioner of Income tax, Gujarat III vs Shri Subhalaxmi Mills Ltd., and by the Madras High Court in Commissioner of Income tax vs Saravanabhava Mills Pvt Ltd.,[1983] I.T.R.856. In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed. The appeal is dismissed with costs. [/INST]The respondent assessee which had suffered a loss during the assessment year 1960 61, and whose share holding had undergone a change subsequently, claimed a set off against the same in its assessment for the year 1963 64, but the Income tax Officer turned it down on the ground that section 79 of the Income tax Act, 1961 dis entitled the assessee from claiming such a set off since 51% of the voting power held by persons on the last day of the year in which the loss was suffered was no longer held by them on March 31, 1963. On appeal, the Appellate Assistant Commissioner held that before the right to set off a loss could be denied to an assessee, not only should there be a change in the persons holding a voting power of not less than 51% but further the change should have been effected with a view to avoiding or reducing the liability to tax. On appeal by the Revenue, the Appellate Tribunal observed that the denial of the set off of a loss incurred in an earlier year was subject to two exceptions: (i) that the beneficial holding representing not less than 51% of the voting power should not change hands between the last day of the year in which the loss was incurred and the last day of the relevant previous year, and (ii) that any change in the share holding should not have been effected with a view to avoiding or reducing any liability to tax; that these two exceptions applied independently, and if either came into play, the prohibition contained in section 79 against the setting off of a loss could not be invoked by the Revenue. However, at the instance of the assessee, the Tribunal referred the following question to the High Court for its opinion: "Whether both the conditions mentioned in clause (a) and clause (b) of section 79 must apply for disentitling the loss of a prior year being allowed as set off in accordance with the substantive provisions of section 79 of the Income tax Act, 1961?" PG NO 814 PG NO 815 The If High Court answered the question in favour of the assessee, holding that even if a change in the voting power of not less than 51% between the two relevant dates has taken place, for the Revenue to succeed, such change should be effected with a view to avoiding or reducing any liability to tax. Dismissing the appeal, HELD: In our opinion, to avoid falling within the scope of section 79 it is sufficient for the assessee to show that the case attracts either cl.(a) or cl.(b). If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of the Income Tax Act entitling him to claim a carry forward and set off losses suffered by the company in an earlier year or years against the income of the previous year. [820C D] Section 79 is an exception to the scheme enacted in Chapter VI for the carry forward and setting off of a loss incurred in any earlier year against the income of the relevant previous year. The provision was enacted in the Income tax Act, 1961 for the first time in order to deny that benefit to companies not being companies in which the public are substantially interested. On its plain terms section 79 provides that in the case of such companies, if a change in share holding has taken place in a previous year, no loss incurred in any year prior to the previous year. shall be carried forward or set off against the income of the previous year unless (a) both on the last day of the previous year and on the last day of the year or years in which the loss was incurred the shares of the company carrying not less than 5l per cent of the voting power were beneficially held by the same persons (b) the Income tax Officer is satisfied that the change in the share holding was not effected with a view to avoiding or reducing any liability to tax. The question before us is whether the two conditions operate cumulatively or in the alternative. In other words, should both conditions exist together to nullify the prohibition against carry forward and set off of the loss? Upon careful consideration we are of opinion that the conditions are intended to operate as alternative to one another. If the terms of either cl. (a) or cl. (b) are satisfied, the disqualification suffered by a company. by reason of a change in share holding in the previous year, is removed, and the company is entitled to the benefit of the provisions in Chapter VI relating to the carry forward and set off of losses. The benefit is available notwithstanding the change in share holding in the previous year, if shares representing not less than 51% of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available notwithstanding the PG NO 816 change in shareholding in the previous year if the change was not effected with a view to avoiding or reducing any liability to tax. [818F H, 819A D] Commissoner of Income tax, Gujarat III vs Shri Subhalaxmi Mills Ltd., and Commissioner of Income tax vs Saravanabhava Mills Pvt. Ltd., [1983]143I.T.R.856, approved. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 3955 (NCE) of 1987. From the Judgment and Order dated 16.11.1987 of the Patna High Court in Election Petition No. 4 of 1985. 924 R.K. Garg and D.K. Garg for the Appellant. S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N. Singh for the Respondent. The Judgment of the Court was delivered by SAIKIA, J. This election appeal under S.116A of the Representation of the People Act 1951, hereinafter referred to as 'the Act ', is from the Judgment of the Patna High Court (Ranchi Bench) in the respondent 's Election Petition No. 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (S.C.) Constituency to be void. Pursuant to the Notification of Election to the Bihar Legislative Assembly, the Returning Officer of the 286 Chandan Kyari (S.C.) Assembly Constituency announced the following programme: A. Last date for filing nomination paper 6.2.1985 B. Date of the Scrutiny of the nomination paper 7.2.1985 C. Last date of withdrawal of candidature 9.2.1985 D. Date of Poll 5.3.1985 E. Date of counting 6.3.1985 The appellant, the respondent and 17 others filed their nomination papers; and the Returning Officer accepted the nomination papers found valid at the scrutiny. Three of them withdrew their candidature, leaving 16 contesting candidates in the field. The Returning Officer prepared and published the following list of contesting candidates with the allot ted symbols: section No. Name Party Symbol 1. Ayodhya Rajak Independent Boat 2. Uma Bawri " Horse 3. Kokil Rajwar " Cultivator cutting crops 4. Kiriti Bhusan Das " Fish 5. Tilakdhari Bawri " Two leaves 6. Dulal Das Independent Spade & Stroker 925 7. Nakul Chandra Rajak Independent Rising Sun 8. Panchanan Rajak " Ladder 9. Padam Lochan Rajwar B.J.P. Lotus 10. Mahindri Rajwar Independent Bicycle 11. Murura Dasi Jharkhand A Woman carrying a Mukti Morcha basket on her head. Yogendra Bawri Indian Scale Congress (J) 13. Ramdas Ram Independent Camel 14. Lata Devi (Mali) Indian Hand National Congress(I) 15. Shankar Bawri Independent Swastik within the circle 16. Haru Rajwar Marxist Bow and arrow coordination The poll was held according to schedule on 5.3.1985; and, after counting, the following result was announced on 6.3.1985 by the Returning Officer: section No. Name Party Votes secured 1. Ayodhya Rajak Independent 187 2. Uma Bawri " 590 3. Kokil Rajwar " 4564 4. Kiriti Bhusan Das " 477 5. Tilakdhari Bawri " 1458 6. Dulal Das " 550 7. Nakul chandra Rajak " 387 8. Panchanan Raj ak " 434 9. Padam Lochan Rajwar B.J.P. 8231 10. Mahandri Rajwar Independent 2500 926 11. Marura Dasi Jharkhand 2228 Mukti Morcha 12. Yogendra Bawri Indian Congress (J) 1163 13. Ramdas Ram Independent 195 14. Lata Devi (Mali) Indian National 8659 Congress (I) 15. Shankar Bawri Independent 486 16. Haru Rajwar Independent 8229 The appellant Lata Devi (Mali) was declared elected. The respondent Haru Rajwar filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant to the Bihar Legislative Assembly on the ground, inter alia, that on 14.2.1985, he received a notice of the intention of the Returning Officer to change his allotted election symbol and though, through counsel, he objected on 15.2.1985, the Returning Officer re allotted the respondent 's 'bow and arrow ' symbol to Murura Dasi and instead allotted the symbol of 'ladder ' to him. It was urged in the petition that he contested and won the earlier elec tion from the same constituency with the same 'bow and arrow ' symbol; the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change; that the election was liable to be declared void on the ground of violation of section 30(d) of the Representation of the People Act which, according to him, prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and that the election was void also for viola tion 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. It is the appellant 's case that she did not receive any notice of the election petition against her. The trial proceeded ex parte. The respondent election petitioner examined himself at the trail. The High Court by its impugned order dated 16.11.1987 allowed the petition and declared the appellant 's election to be void holding that the result of the election in so far as it concerned the returned candidate was materially af fected by violation of Rule 10(5) of the Conduct of Election Rules, 1961. Hence this appeal. 927 Mr. R.K. Garg, the learned counsel for the appellant submits, inter alia, what even assuming what was stated by the respondent election petitioner to be true, there was no breach of section 30(d) of the Representation 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; that there was no violation of Rule 10(5) of the Conduct of Election Rules; and that 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 claims, and he himself could not have proved his averments. Mr. S.N. Singh, the learned counsel for the respondent, relying on AH Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, AIR 1977 SC 2 155, and Roop Lal Sathi vs Nachhattar Singh Gill, ; , strenuously argues that the violation of Rule 10(5) is itself sufficient to have materially affected the result of the election particularly in view of the fact that in the instant con stituency of backward voters, the symbol was very important, and change thereof had disastrous consequences to the re spondent candidate. The material facts relevant to this appeal are not in dispute. The list of contesting candidates with respective symbols was published on 9.2.1985; the election petitioner 's symbol 'bow and arrow ' was reallotted to candidate Murura Dasi and the symbol of ladder in place of 'bow and arrow ' was re allotted to the respondent; the poll took place on 5.3.1985; and the result was announced on 6.3.1985. The respondent election petitioner in the High Court examined himself as P.W. 1 and deposed to the following effect: " . . I was given the symbol of 'bow and arrow '. I canvassed for my votes with the symbol of 'bow and arrow ' till Febru ary 15, 1985. The Returning Officer changed my symbol and allotted to me the symbol of 'Sirhi ' (ladder). The symbol of 'bow and arrow ' was given to Murura Dasi, the another candidate. I was the sitting MLA and my symbol in the last election was also 'bow and arrow '. I lost the election this time by a margin of 430 votes. In the election held in the year 1980, I won the election by a margin of 9611 votes. This time the main reason of my defeat in the election is the change of my symbol. Due to change of my symbol, the voters were misled and they 928 could not be apprised of this change. I could not canvass for my votes with the symbol of 'ladder ' in that constituency and in that area. I was known largely and properly in the areas as the MLA with the symbol of 'bow and arrow '. The candidate of Congress party was declared elected in this election. The elec tion of my constituency was held in March 5, 1985. I did not get 20 days time as provided in law after the change of my symbol. " When recalled, he added that the symbol was a free symbol which had been allotted to him earlier i.e. the symbol of 'bow and arrow '. "The last date of withdrawal of the nomination paper was February 9, 1985. By the change of symbol 'bow and arrow ', I was materially affected and it affected the course of election and the voters were misled and they wrongly voted for Murura Dasi. " Evidence of no other witness appears on record. The question before us is, whether on the basis of the above evidence on record the High Court was justified in holding that the result of the election was materially affected and in declaring the appel lant 's election to be void on that ground. Section 100 of the Representation of the People Act, 195 1 states the grounds for declaring an election to be void. Sub section 1(d)(iv) says: (1) subject to the provisions of sub sectiOn (2) if the High Court is of opinion (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any noncom pliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void: Sub section (2) is not relevant for the purpose of this case. Was there in this case. any violation of section 30(d)? Under section 30 of the Representation of the People Act, 1951, as soon as the notification calling upon a constituen cy 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 twenti eth day after the last date for the withdrawal of candida ture. In the instant case the last date for the withdrawal of nomination was 9.2.1985 and the date of poll was 5.3.1985. There was, therefore, clear compliance with the requirement of S.30(d). The respondent himself stated that on 14.12.1985 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. We agree with the High Court that only the spirit of S.30(d) was not complied with. In terms, this provision was 929 clearly complied with. The submission that it was violated, has, therefore, to be rejected. Rule 10 of the Conduct of Election Rules, 1961 deals with preparation of list of contesting candidates. Sub rule (4) thereof requires that at an election in an assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted. Under sub rule (5) the allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit. The change of symbol has not been proved to be violative of Rule 10(5). Even assuming violation, as Mr. Garg submits, was there enough evidence to show that the result of the election, in so far as it concerned the returned candidate, was materially affected? The election petitioner before the High Court deposed that he lost the election by a margin of 430 votes. From the result sheet it appears that the appel lant secured 8659 votes and the respondent secured 8229 votes. The difference is, therefore, of 430 votes. Murura Dasi despite the 'bow and arrow ' symbol secured 2228 votes. 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, depend on the facts and circumstances of the case. The result of election, in so far as it concerns a returned candidate, may be affected in various ways by various factors stated under section 100(1)(d). So far as the burden and measure of proof of such material effect is concerned, the law has been enunciated by several decisions of this Court. What is required to be demonstrated by evi dence will vary according to the way in which the result of the election in so far as it concerns the returned candidate is alleged to have been materially affected. It is to be noted that in an election petition what is called in ques tion is the election and what is claimed is that the elec tion 930 of all or any of the returned candidates is void, with or without a further declaration that the election petitioner himself or any other candidate has been duly elected. De claring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected. Vashit Narain Sharma vs Der Chandra and Ors., ; , was a case of improper acceptance or rejection of nomination paper and the manner of proving that the result of the election had been materially affected was slightly different from that of the instant case as that involved the question of possible distribution of wasted votes. However, this Court has stated that the result of the election being materially affected is a matter which has to be proved and the onus of proving it lies upon the petitioner. Their Lordships observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidates. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evi dence to enable the court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. " In Inayatullah Khan vs Diwanchand Mahajan & Ors, 19, where a nominated candidate was found to have been disqualified under section 7(d) of the Act the question arose as to what had happened to the election as a result. It was contended that the margin of votes was small and that the result of the election must be taken to have been materially affected because Nandial, a disqualified candidate, got 8,000 odd votes, which in the event of his not contesting would have gone to Mahajan. Evidence was led to show how the votes which went to Nandial would have been divided and both sides claimed that if Nandial had not contested the elec tion, the votes would have gone to them. The Madhya Pradesh High Court observed that the evidence on this part of the case was exceedingly general and apart from the statement by the witnesses who came forward as to their opinion, there was 931 nothing definite about it. All the evidence which had been brought to Court 's notice was not decisive of the matter under section 100 of the Act in view of the test laid down in Vashit Narain Sharma 's case (supra). It can, therefore, be taken as settled that the party who wishes herein to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been mate rially 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 diverted in such a way that the returned candidate would have been unsuccessful. In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner. Murura Dasi, to whom the 'bow and arrow ' symbol was later allotted, was not the successful candidate. The election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of in favour of the petitioner, simply because of the change of symbol as would, without that number of votes, make the successful candidates unsuccess ful. The petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition. In S.N. Balakrishna vs Fernandes, ; ; , which was a case under section 100(1)(d)(ii) and section 123(4) corrupt practice charged against an agent other than election agent, on the question of the result of the election, in so far it concerned the returned candidate, being materially affected, Hidayatullah, C.J. observed at para 58: "In our opinion the matter cannot be consid ered on possibility. Vashit Narain 's case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature. In Vashit 's case; , , and in Inayatullah vs Diwanchand Mahajan, [1958] 15 Ele LR 219 at pp. 235 246 (MP) the provision was held to prescribe an impossible burden. The law has however remained as be fore. We arc bound by the rulings of this Court and must say that the burden has not been successfully discharged. We cannot over look the rulings of this Court and follow the English rulings cited to us. " 932 In Chhedi Ram vs Jhilmit Ram and Ors., which was also a case of improper acceptance of nomination paper, Chinnappa Reddy, J. observed that the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances, and reasonable probabilities of the case. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of the case, a reasonable probability is all one way, the Court must not lay down an impossible standard of proof and hold a fact as not proved. As was reiterated in Shiv Charan Singh vs Chandra Bhan Singh, ; , in the absence of any proof the result of an election can not be held to be materially affected; and it is not permissible in law to set aside the election of the returned candidate on mere surmises and conjectures. A decision in election petition can be given only on positive and affirmative evidence and not on mere speculation and suspicious, however strong they are. Indeed, in the instant case there is no such positive and affirma tive evidence. ,Mere assertions by the election petitioner were not enough. Nothing was alleged and proved against the successful candidate. There could be no proposition or contention that a candidate with a particular symbol would always be successful 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. Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangma, (supra) wherein Goswami, J. observed: "For the purpose of holding elections, allot ment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that symbol as a device for casting votes in favour of a candidate of one 's choice has proved an inval uable aid. Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one 's country, similarly great fervour and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conducted on party 933 lines. People after a time identify themselves with the symbol and the flag. These are great unifying insignia which cannot all of a sudden be effaced. " 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 affected. In Roop Lal Sathi vs Nachhattar Singh Gill, (supra) in the facts of that case, this Court observed that: "The symbols order was issued by the Election Commission under Article 324 of the Constitu tion in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State. It is also relata ble to Rules 5 and 10 of the Conduct of Elec tions Rules framed by the Central Government in exercise of their powers under section 169 of the Act. Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under section 33 of the Act shall be in Forms 2 A to 2 E, as may be appropriate. Forms 2 A and 2 B require the candidate to choose symbol. Under Rule 5(1) the Election Commis sion by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies. Under Rule 10(4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and "subject to any general or special direction issued by the Election Commission" allot different symbols to different candidates. The allotment of symbols by the Returning Officer is final under sub rule (5) of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit." Mr. Singh 's submission is as if the violation of sub rule (5) of Rule 10 would ipso facto make an election void. That, however, is not the legal position as would be clear from the provision itself. Section 100(1)(d)(iv) of the Act clearly says that subject to the provisions of sub section (2) if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this 934 Act, the High Court shall declare the election of the re turned candidate to be void. The violation of sub rule (5) of Rule loper 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. From the evidence on record considered in light of the law enunciated above, we have no doubt that the election petitioner dismally failed to discharge the burden of prov ing that the result of the election, in so far it concerned the appellant, who has been the returned candidate, was materially affected. The High Court was in error in holding, without sufficient evidence, that it was materially affect ed. In the result, the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify at Rs.3,000 (Rupees three thousand). Let steps be taken under Section 116C(2) of the Act. R.S.S. Appeal allowed. [/INST]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] </s>

<s>[INST] Summarize the judgementAppeal No. 2063 of 1973. Appeal by special leave from the judgment and decree dated the 25th July. 1973 of the Calcutta High Court in Appeal from Appellate Decree No. 1193 of 1972. Civil Appeal No. 1304 of 1973. From the judgment and order dated the 3rd February, 1972 of the Calcutta High Court in L.P.A. No. 14 of 1969. P. Chatterjee and Rathin Das, for the appellant (In C. A. 2063/73). Urmila Kapoor and Shobha Dikshit, for the respondent (In C.A. No. 2063/73). P.K. Chatterjee, G. section Chatterjee, and Sukumar Basu, for the Advocate General for the State of West Bengal. Sukumar Ghose, for the appellants. (In C.A. No. 1304/73). D. N. Mukherjee, for the respondents (in C.A. No. 1304/73). The judgment of M. H. Beg and V. R. Krishna Iyer, JJ was delivered by Krishna Iyer, J. P. K. Goswami, J. gave a separate Opinion. KRISHNA IYER, J. Calcutta or Cochin, for the urban people of India, the shocking scarcity of a roof to rest one 's tired bones is an L346SupCI/75 778 unhappy problem of social justice that compels control of rent. and eviction laws. In the case now before us, attacking the constitutionality of legislation handcuffing the landlord proprietariat 's right of eviction, the law has to be tested not merely by the cold print of article 19(1)(f) but also by the public concern of article 19(5) and the, compassionate animus of article 39, Parts III and IV of the Constitution together constitute a complex of promises the nation has to keep and the legislation challenged before us is in partial fulfilment of this tryst with the people. These observations become necessary in limine since counsel for the respondents dismissed the concept of social justice as extraneous to an insightful understanding of the section invalidated by the High Court, while we think that judicial conscience is not a mere matter of citations of precedents but of activist appraisal of social tears to wipe out which the State is obligated under the Constitution. The two appeals before us, raising substantially identical points, have been heard together and are being disposed of by a common judgment. Both of them stem from a decision of the Calcutta High Court reported as Sailendra Nath vs section E. Dutt(1). One of the decisions under appeal (C.A. 2063 of 1973) was rendered by a Single Judge of the High Court following a Division Bench ruling of the same Court (i.e., the one reported as Sailendra Nath vs section E. Dull) since he was obviously bound by it. A provision imparting some sort of retroactivity to a 1969 legislative amendment implanting additional restrictions on eviction of premises under the earlier West Bengal rent control law has been voided by the High Court in the judgment& under appeal. The aggrieved tenant in each case has appealed and the State, not being directly a party to the legislation, has entered appearance to support, the legislation and to challenge the Calcutta decision to the extent it has invalidated the retrospective part of the statute. Welfare legislation calculated to benefit weaker classes, when their vires is challenged in Court, casts an obligation on the State, particularly when notice is given to the Advocate General, to support the law, if necessary by a Brandeis brief and supply of socio economic circumstances and statistics inspiring the enactment. Courts cannot, on their own, adventure into social research outside the record and if Government lets down the Legislature in Court by not illumining the provisions from the angle of the social mischief or economic menace sought to be countered, the victims will be the class of beneficiaries the State professed to protect. In this case, we are unable to compliment the State or the Advocate General from this point of view. It may happen that when the Court decides against the validity of a measure or order because Government fails to bring the socially relevant totality of facts, it is used Is an alibi by (1) A.1 R. 779 he latter for the misfortune. Courts cannot help cover up the Executive 's drowsy default or half hearted help in making the socioconomic conspectus available. The West Bengal Premises Tenancy Act, 1956 (Act XII of 956) (for short, referred to as the basic Act) clamped down several restrictions on ejectment of tenants by landlords from buildings, the policy behind it being alleviation of the lot of the weaker segment of the urban community without their own homes in the context of the scarcity of accommodation and the colossal sociceconomic upheaval which would follow if unbridled evictions were allowed. The temptation to evict or rack rent under scarcity conditions is an irresistible evil in our economic order and it is an all India phenomenon that the social conscience of the State Legislatures has responded to this large scale threat by effective control measures. Indeed, for decades now, every State in India has on, the statute book rent control law and, what is more pertinent to the present case, tactics of circumvention have compelled the enactment of additional safeguards from time to time by vigilant statutory measures. West Bengal, a populous State, with an overcrowded city choked by the largest human congregation in the country, enacted the basic Act whereby the plenary right of landlords to recover possession of their buildings was shackled in many ways. Industrial growth and other factors induced demographic congestion such as was witnessed in the urban areas of that State. Consequently, the legislature, was faced with a fresh danger in the shape of ingenious transfers of ownership of buildings by indigenous but indigent landlords and the transferees resorting to eviction on a large scale equipped as they were with better financial muscles and motivated as they were by hope of speculative returns from their investments oil eviction. Presumably, the phenomenal increase of the menance of eviction by the new species of transferee owners of building was countered by a legislative measure the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959) (hereinafter referred to as the amendment Act). By this legislation the new class of transferee landlords was subject to a stringent trammel viz. that they should not sue for eviction within three years of the date of transfer (We are not immediately concerned here with certain other changes effected by the Amendment Act). The social objective and the practical effect of this fetter will be con Court has upheldthis provision which is now contained in section 13(3A) sidered briefly the little later. Suffice it to say at this stage the High of the basic Act. However , while holding the provision substantial intra vires the Court has invalidated the giving effect to the provision to pending suits and appeals. Such limited retrospectivity had been incorporated by section 13 of the amending Act and, if the law were only prospective the landlords in the two cases who had initiated their litigation several years prior to the enactment of the Amendment Act would be free from the three year interdict and the other extra restrictions. Once the embargo is out of their way, the decree , for eviction they have secured must stand. On tile contrary, if the restriction on eviction by the transferee landlords were to operate on 780 pending litigation the appellants tenants are immune to eviction in the current proceedings as they now stand. Thus the short constitutional issue is as to whether section 13(3A) of the basic Act to the extent it applies to pending litigation on the strength of section 13 of the Amending Act is violative of articles 14 and 19(1)(f) of the Constitution, weapons relied upon for the attack before the High Court, and here. We will proceed to consider the constitutional vulnerability of this limb of the protective legislation. By way of anticipating our conclusion we may also pose the problem whether sections 1 3 and 4 of the Amendment Act can be validly implemented vis a vis pending actions in any other just manner which will preserve the additional protection, minimise multiplicity of litigation and make law and justice bedfellows in the &hanged statutory circumstances. Some background observations to appreciate the contest in court are necessary. No social realist will deny the frightful dimensions of the problem of homeless families and precarious tenancies; and if the Directive Principles of State Policy are not to be dismissed by the masses as a 'teasing illusion and promise of unreality ', curtailment, in public interest, of such extreme rights of the landlord as are 'red in tooth and claw ' is a constitutional compulsion. The Court, informed by this sore economic situation and reinforced by the initial presumption of constitutionality, hesitates to strike a socially beneficial statute dead, leading to escalation of the mischief to suppress which the House legislated unless, of course, a plain breach of the fundamental right of the citizen is manifest. The perspective of the amending Act is sketched by the High Court in lurid language : "The scarcity of accommodation is a burning problem, not only of the State of West Bengal but of the other States as well. Keeping pace with the needs of the gradually swelling population of West Bengal, new buildings have not been built owing to abnormal high price of land and materials. A large majority of the people of West Bengal live in those premises at the mercy of the landlords. " The explosive import of neglecting such a distressing urban development reasonably obliges the State to impose drastic restrictions on landlords ' right to property. And when circumvention of wholesome legal inhibitions are practised on a large scale the new challenge is met by clothing the law with more effective amount and that is the rationale of the Amendment Act. The learned Judges rightly refer to the legislative proceedings, notorious common knowledge and other relevant factors properly brought to their ken. The 'sound proof theory ' of ignoring voices from parliamentary debates, once sanctified by British tradition, has been replaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted We agree with the High Court when it observes : "Proceedings of legislature can be referred to for the limited purpose of ascertaining the conditions, prevailing at 781 or about the time of the enactment in question, which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied. In the Statement of Objects and Reasons of the West Bengal Premises Tenancy (Second Amendment) Bill, 1969, it is stated that it has been consider necessary that some more reliefs should be given to the tenants against eviction. It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many : there are landlords of different kinds : there is one class original owners who are the old inhabitants of the city : these owner landlords are Dot affluent: they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the, grounds of eviction, namely, of the landlords and for the purpose of building and rebuilding, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase. On the above two grounds and for that purpose, the said classification has been made. " The conclusion of the Court, crystellised in the following words, commends itself to us : "Taking an overall view of the various considerations, the statement of, the Minister, the objects of the Bill, matters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that underlying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classification of landlords into owner landlords and transfereelandlords is based upon a rational and intelligible differentia and we hold accordingly. " Proceeding to examine the limited attack on section 13(3A) of the basic Act read with section 13 of the Amending Act, we have to remember die comity of constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. (See: The State of Bombay vs R. M. D. Chamar baguwala(1) and Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar & Others(2). Some Courts have gone, to the extent of holding that "there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and 'to doubt the constitutionality of a law is to resolve it in, favour of its validity. "(3) Indeed, the Legis (1) ; (2) ; (3) Constitutional law of India by H. M. Seervai p 54 vol. 1. 782 lature owes it to the Court to make like respectful presumptions. We therefore view the provision impugned through a socially constructive, not legally captious, microscope to discover glaring unconstitutional infirmity, if any, and not chase every chance possibility of speculative, thought which may vitiate the law. Stray misfortunes when laws affecting large chunks of the community are enacted are inevitable and the respondents before us may perhaps belong to that category. Social legislation without tears, affecting vested rights, is impossible. Statutory construction has a benignant sensitivity and we are satisfied the High Court, in substantially upholding the Amendment Act, has done right, but in striking down the retrospective portion of the section has stumbled into a specious error. It is helpful to reproduce the relevant portion of section 13 of the basic Act in its unamended state and the amendments dovetailed into it by the 1969 Act, The so called 'retrospectivity ' of this provision has been anathematised by the respondent landlords and annulled by the High Court : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: unamended cl. (f) : where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held; cls. (f) and (ff) substituted therefor (f)subject to the provisions of sub section (3A), and section 18A, where the premises are reasonably required by the landlord for purposes of building or re building or for making thereto substantial additions or alterations and such building or rebuilding or additions or alterations cannot he carried out without the premises being vacated, (ff) subject to the provisions of subsection (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation, Sub section (3A) newly introduced. 13(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be insti 78 3 tuted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest : Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being beard, permits, by order, the institution of the suit on the ground that the building or rebuilding, or the additions or alteration, as the case may be, are necessary to make the premises safe for human habitation. " Once the substantive restriction super added by section 13(3A) is held valid, we have to focus attention only on the extension of the new ban to pending proceedings. That legislative competence to enact retroactively exists is trite law and we have only to test its validity on the touchstone of articles 14 and 19 (1) (f) pressed into service before us. Law is a social science and constitutionality turns not on abstract principles or rigid legal canons but concrete realities and given conditions; for the rule of law stems from the rule of life. We emphasize this facet of sociological jurisprudence only because the High Court has struck down section 13 of the Amendment Act on surmises, possi bilities and may be rather than on study of actualities and proof of the nature, number and age of pending litigations caught in the net of the retrospective clause. Judges act not by hunch but on hard facts properly brought on record and sufficiently strong to rebuff the initial presumption of constitutionality of legislation. Nor is the Court a third Chamber of the House to weigh whether it should legislate retrospectively or draft the clause differently. We find no foundation for the large assumptions made by the High Court and duly repeated before us by counsel that there may be cases of ejectment instituted prior to 1956 or that a number of suits and decrees perhaps decades old will unjustly be nullified by the previous operation of the new ban. Recondite instances and casual hardships cannot deflect constitutional construction of social legislation, if the main thrust of the statute relates to a real social evil of dimensions deserving to be antidoted by antedated legislative remedy. In the present case, indubitably the State was faced with a new, insidious and considerable situation of exploitation, undermining the security of tenancy conferred by the basic Act. A large number of original landowners living in their own home could not, under the basic Act, claim recovery of possession, being occupants of their own houses. Likewise, they could not urge the ground of recovery for rebuilding, not being financially able to invest on such a costly venture. They had to look up to modest old time rentals as the only source of return and lest the penurious tenantry desperately inhabiting little tenements be forced to pay extortionate rents the rent control law of 1956 froze the rates at the 1940 level with gentle increases as provided therein. However, for now buildings to be constructed 784 special incentive provision was made by deeming the contract rent as fair rent, thus ensuring a high return on building investment. The social upshot of this scheme was that the old landlords found their ownership a poor return investment, saw a new class of wealthier investors streaming into cities and towns ready to buy the premises evict old tenants, re let on rack rents or re build and reap a rich return. They had no buildings of their own and could prove plans to rebuild, thus disarming the nonevictability provision of section 13 of the basic Act. The transferees could thus get decrees for eviction under the basic Act. Naturally, transfers of buildings to this somewhat speculating class increased and the spectacle of eviction litigation ' or potential eviction proceedings was projected on the urban scene. The Legislature promptly reacted by the Amendment Act to rescue the lessees by clamping down new restrictions by way of section 13 (3A). A three year moratorium was given to the tenants from being hunted out of their homesteads by imposing a ban on institution of suits for eviction by transferee landlords. This would both disenchant speculative purchases and provide occupants time to seek alternative housing. Presumably, these objects inspired the law makers to extend the embargo backwards to pending eviction proceedings. Quite conceivably, the tendency to create a transferee class of real estate owners gradually gathered in volume and showed up in rashes of pending actions. When Government was alerted amending legislation was proposed. Unfortunately, the State 's legal wing has failed to protect, in Court the class for whose benefit the amending law was made by placing luscent social or statistical materials on these aspect . As earlier stated by us, Government have a duty, where social legislation to protect the weak are challenged, to exhibit the same activism in the Halls of Court as in the Houses of Legislature. Failure in the former duty can be as bad as not promulgating the law. Not an elucidatory affidavit by the State nor even the Minister 's explanatory speech has been filed in this Court. We make these observations because of the handicaps we have faced and the little help on facts the State has given to sustain the legislation. The Calcutta High court has upheld the vires of sub section (3A) but invalidated its application to pending litigation. So the short issue is whether this projection into the past of the otherwise reasonable restriction on the right of eviction arbitrary, irrational, ultra vires ? If yes, the lethal sting of articles 14 and 19(1) (f) will deaden section 13 of the Amendment Act. And the High Court has held so on ,he latter Article. The prospective validity of the restriction under articles 14 and 19(1) (f), the High Court thinks, is vindicated by sound classification and sanctioned reasonably by the interest of the general public. Having regard to the policy of the legislation, the classification of landlords into two classes of owner landlords and transferee landlords and the imposition of an embargo on the latter minacious class against bringing eviction suits within three years of purchase passes the dual tests of reasonable classification and the differentia having a rational nexus with the statutory object. Therefore, the High Court had no hesitation and we totally concur that the provision is 78 5 impregnable. The controversy rages round giving effect to these stringent restraints newly enacted on earlier legal actions. This, it is contended, is a horrendous invasion of property right,; and unjust anteriority which hits innocent plaintiffs whose, purchases were beyond three years. Before us respondents ' counsel have contended that article 14 is violated. by section 3 read with section 4 of the Amendment Act although the high Court has negatived this submission thus : "We have carefully considered the arguments advanced by the learned counsel and we are of the Opinion that the retrospective operation of sub section (3A) on pending suits and appeals does not offend Article 14 of the Constitution. " Since the argument, dressed, differently, has been urged before us again we will briefly deal with it, agreeing as we do with the High Court. Plaintiffs whose transfers are twenty years ago or two years before the Act, are lugged together and subjected to the same ban if their suits were instituted within three years of the transfer. This blanket ban regardless of the varying periods which have elapsed after the transfers and before the Act was passed was unequal treatment or rather harshly equal subjection to restriction of plainly unequally situated transferees. There is seeming attractiveness in this presentation. But Courts are concerned not how best to hammer out equal justice but to oversee whether the classification is without rational basis unrelated to the object of the Act. That is why we are confined to check whether the reasoning on this aspect adopted by the High Court is not tenable. We may or may not disagree with the wisdom of the Legislature in the grouping adopted or hold views about fairer ways of treatment. But our powers are judicial, not legislative and arbitrariness and irrationality are not writ large in the method of differentiation the legislature has here chosen. In the words of A. K. Mukuherji J : "In the instant case, suits of the affected transfereelandlords may be regarded as a sub class, within a class and, if within the said sub class, the suits are not differently treated, they will not be hit by Article 14. The persons affected are transferee landlords who instituted their suits within three years of their purchase and they form a separate class and, among the suits of that 'affected class ', there is no discrimination. The law applied equally with respect to the pending suits with regard to this affected class. " Some hardship is bound to occur peripherally in any mode of classification and a few hard cases (we have not been shown whether many have been struck by this pattern of grouping) cannot guide the Court in upsetting legislative compartmentalisation. The next attack by the respondents is that the deprivation of the right to sue is absurdly beyond the object of the Act when applied to pending cases where the transfers took place more than three years before the Act. Were we draftsmen of legislation, may be counsel 's submission could have had more potency. But our limited power is to 786 examine the reasonableness of the restriction, not by substituting our personal notions but by interfering if the Legislature has gone haywire in unreasonably hamstringing transferee landlords by dismissing suits brought long before the legislative bill was in the womb of time. In an earlier case this Court observed(1) "Right at the, threshold we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States vs Butter ; 80 Law. Ed. 477 thus: The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts ire concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government. " In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review." The High Court has assumed that even proceedings started prior to 1956 may be affected. This, admittedly, is wrong as pre basic Act suits will be governed by the, then law as provided in section 40 and the Amendment Act amends only the 1956 Act. It may also be conceded that in both the appeals before us, thanks to Indian longevity of litigation, more than three years from the date of transfer in favour of the plaintiff has passed and thus the spirit of the protection in that sense is fulfilled. Indeed, counsel for the. respondents urged that the validation of the retrospective limb of the law would only drive the parties to fresh suits, thus promoting multiplicity of suits ruinous to both sides with no social gain. There is force in this submission. Its relevance to decide, the constitutional issue is doubtful but its influence on our ultimate solution in this case, as will be seen later, is undeniable. A closeup of the social milieu leading up to the enactment in 1969 of the Amendment Act is useful to identify the substantial, mischief the law was intended to overpower. Did that evil reasonably necessitate, for effectual implementation of purpose, the extension of the new law to pending suits and appeals ? How many suits, appeals and second appeals by transferees within the three year belt were pending? How long had they been so pending? Were there only stray eviction cases of long ago and was it feasible or necessary to (1) Murthy Match Works vs Asst. Collector of Central Excise, A.T.R. 1974 8.C. 497, 503. 787 draw a line somewhere to prevent injustice to non speculative and old time buyers of buildings without impairing the limited immunity meant for tenants and intended against now realty investors ? On these facts the State has sat with folded hands and we have been thrown on our own to scan and sustain or strike down. But here arises the significance of initial presumption of constitutionality. The High Court has made short shrift of this plea thus : "There is nothing on the record to show that the mischief, sought So be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin. In this context, the application of the restriction on the omnibus scale to ill pending suits and appeals would smack of unreasonableness. " Who has the onus to place compelling facts, except in flagrant cases of gross unreasonableness, to establish excessiveness, or perversity, in the restriction imposed by the statute? Long ago in Dalmia 's Case(1) this Court held that "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"; and 'that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ," If nothing is placed on record by the challengers the verdict ordinarily goes against them. Moreover, what is the evil corrected by the Amendment Act? The influx of a transferee class of evictors of tenants and institution of litigation to eject and rack rent or re build to make larger profits. Apparently, the inflow of such suits must have been swelling slowly over the years and when the stream became a flood the Legislature rushed with an amending bill. Had it made the law merely prospective, those who bad, in numbers, already gone to Court and induced legislative attention would have escaped the inhibition. This would defeat the object and so the application of the additional ban to Pending actions could not be called unreasonable. To omit to do so would have been unreasonable folly. The question is whether those cases which were filed several years ago should have been carved out of the category of transferees hit by the Act ? Where do you draw the line ? When did the evil assume proportions ? These are best left to legislative wisdom and not court 's commonsense although there may be grievances for some innocent transferees. (1) ; , 297 propositions (b) and (c). 788 If this be the paradigm of judicial review of constitutionality, we have to ignore exceptional cases which suffer misfortune unwittingly. The law is made for the bulk of the community to produce social justice and isolated instances of unintended injury are inevitable martyrs for the common good since God Himself has failed to make perfect laws and perfect justice, Freaks have to be accepted by the victims rightly or wrongly as forensic fate: Not that it should be so but human infallibility being unattainable, easily the next best in social justice is to promote the public weal sacrificing some unmerited private hurt as unfortunate but unavoidable. It must be conceded that prima facie the two landlord respondent 's had purchased the buildings in the early sixties and three time three years or more have now passed since that date. But while considering constitutionality can we be moved by such accidental instances ? No. The substantial evil has been substantially met by a broad application of the new ban to pending proceedings. We see in the Amendment Act no violation of article 19(1) (f) read with 19(5). The same High Court, in a later case Kalyani Dutt vs Pramila Bala Dassi(1) came to the same conclusion by what it called 'independently considering the question '. We discern nothing substantially different in the analysis or approach to merit review of our result. We hold section 13 of the Amendment Act valid and repel the vice of unreasonableness discovered in both the reported rulings of the High Court. And if reasonable interpretation can avoid invalidation, it is surely preferable. Here humanist considerations, public policy and statutory purpose may provide guidelines of construction within reasonable limits. Section 13 of the Amendment Act reads: "13. Retrospective effect. The amendments made to the said Act by section 4, 7, 8 and 9 of this Act shall have effect in respect of suits including appeals which are pending at the date of commencement of this Act. " The Court is called upon 'to give effect to section 4. of this new Act. ' Section 4 introduced amendments in section 13 of the basic Act which we have set out earlier. There is no doubt that the purpose of the law is to interdict, for a spell of three years, institution of suits for eviction on grounds (f) and (ff) of sub section Section 13 of the Amending Act makes it expressly applicable to pending actions, so much so the operation of the prohibition is not simply prospective as in the Kerala case cited before, us (Nealakandhayya Fillai vs Sankaran(2). Section 13, fairly read, directs that the amendment made by section 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. We are therefore bound to give effect to section 4 in pending actions, regardless of isolated anomalies and individual hardships. As earlier noticed, section 4 has two limbs. It amends section 13 of the basic Act by substituting two new clauses (f) and (ff) in place of the old clause (f) of sub section (1) of section 13 Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of (1) I.L.R. (2) (1961) R.L.T. 755. 789 landlord 's interest in premises, for recovery of possession on any of the grounds mentioned in cl. (f) or cl. (ff) of sub section (1). The result of the= two mandatory provisions has to be clearly understood. For one thing although the old cl. (f) is substantially similar to the present cls. f) and (ff), the latter imposes more severe restrictions protecting the tenants. Much more has to be proved by the landlord now before he can get eviction than when he was called upon to under the earlier corresponding provision of the basic Act. Moreover, the three year prohibition against institution of the suit is altogether new. It follows, therefore, that on the present allegations and evidence the landlord may not get a decree, his suit having been instituted at a time when he could not have foreseen the subsequent enactment saddling him with new, conditions. We consider that where two interpretations are possible that which validates the statute and shortens litigation should be preferred to the one which invalidates or proliferates it. We are guided by that consideration in the interpretative process. We are satisfied further that originally brought in, is defective since it did not contain and ordinarily could not averments complying with the new cls. (f) and (ii) of sub section (1) of section 13 and we are making it effectively by construing the word 'institute ' in a natural and grammatical way. The suit is really instituted in compliance with cls. (f) and/or (ff) only when the new pleading is put in. The bigger roadblock in the way of the plaintiff is in a pending action lies in the prohibition of the institution of the suit within three years of the transfer from the landlord. Indeed, such prohibitions are common in rent control legislation as has been noticed by the Calcutta High Court and is found even in agrarian reforms laws (vide Malaber Tenancy Act, as amended by Act VII of 1954, Madras). Section 13 of the Amendment Act compels the postponement of the institution of the suit (including appeal) for a period of three years from the date of the transfer. In both the cases before us, the suits were instituted within the prohibited period of three years. The argument therefore is that the suits must be straightaway dismissed, the institution being invalid. We do not think that this consequence is inevitable. 'To institute, is 'to begin or commence ', in plain English. The question then is whether the suit can be said to begin on the date it was filed in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet of sub section The prohibition clamped down by sub section (3A), carefully read, is on suits for recovery of possession by transferee landlords 'on any of the grounds mentioned in cl. (f) or cl. (ff) of subs.(1) '. Obviously the suits with which we are concerned are not for recovery on grounds contained in cis. (f) and (ff). They were based on the repealed cl. (f) of section 13 of the basic Act. Strictly speaking, sub section (3A) brought in by section 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; b) it is for recovery of possession of premises and (c) the ground for recovery is what is mentioned in cl. (f) and cl. (ff) of sub section Undoubtedly the third condition is not fulfilled and there fore sub section (3A) is not attracted. This does not mean that the suit 790 can be proceeded with and decree for recovery passed, because section 13 of the basic Act contains a broad ban, on eviction in the following words : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises, shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (emphasis, ours) Since the new cls. (f) and (ff) are included by the Amendment Act in section 13 of the basic Act and since the suits we are concerned with, as they now stand, do not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in section 13 itself. A just resolution of this complex situation was put by us to counsel on both sides and the learned Advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we proposed were to be accepted. We are satisfied that as far as possible courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pendantic, legalistic or technically correct alternative. On this footing we are prepared to interpret section 13 of the Amendment Act and ,give effect to section 4 of that Act. How do we work it out ? We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under cls. (f) and/or (ff)_ of sub s.(1) if they so wish. On such pleading being filed we may legitimately bold that the transferee landlord institutes his suit on grounds mentioned in cls. (f) or (ff) of sub section (1) on that '.ate. It is only when he puts in such a pleading setting out the specific ground covered by sub section (3A) of section 13 that we can say he, has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored since that was not based on grounds covered by cls. (f) and/or (ff) and is not attracted by sub section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these_grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorpo rating amendments is the sacred requirement of the law. On the other hand, social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending. or in appeal or second appeal, if that is pending. Thereupon, the opposite party. tenant, will be given fin opportunity to file his written statement and the Court 'Will dispose of it after giving both sides the right to lead 791 additional evidence. It may certainly, be open to the appellate Court either to take evidence directly or to call for a finding. Expeditious disposal of belated litigation will undoubtedly be a consideration with the court in exercising this discretion. The proviso to sub section (3A) can also be complied with if the plaintiff gets the permission of the Rent Controller in the manner laid down therein before filing his fresh pleading. We, are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression 'institution of the suit ' as amounting to filing of fresh pleading. By this construction we do no violence to language but, on the other hand, promote public justice and social gain, without in the least imperiling the protection conferred by the Amendment Act. Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicits wounds on society by sterile misuse of money. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash, drugged though they be by the seeming blessings of law 's delays. Courts, by interpreting the expression 'institution of suits ' cannot authorize reincarnation, all over again, of litigation for eviction. We save the tenant by applying it to pending cases and save him also from litigative waste. This consideration is itself germane, to the larger concept of justice which it is the duty of Courts to promote. Law finds its finest hour when it speaks to justice on fair terms. In the present case our interpretative endeavour has been imbued with this spirit. In the process of interpretation where alternatives are possible ' the man in the law influences the law in the man may be and the construction on sections 4 and 13 of the Amendment Act herein adopted, we admit, appeals to us as more, humane. The calculus of statutory construction relating to complex problems of the community cannot be hide bound by orthodox text book canons. An obiter, maybe. More buildings is the real solution for dwelling shortage; freezing scarcer accommodation relieves for a little while. Tiger balm is no serious cure for brain turnover We make no more comments on the need for dynamic housing policies beyond statutory palliatives. These belong to legislative 'wisdom ' and administrative ,activism ' and not to judicial 'constitutionalism '. It was noticed in the course of arguments that a later Amending Act of 1970 purporting to give relief to tenants against whom decrees for eviction bad been passed but dispossession had not ensued, had been put on the statute book. It is surprising that counsel on either side did not choose to address us any arguments on the basis of those provisions. We therefore do not go into the impact of that Act on situations where eviction has been ordered by Courts. We therefore allow the appeals with costs but direct the High Court to dispose of the cases in the light of the directions and obser 792 vations we have made. It will be open to the, Court seised of the matter to direct, in its discretion, award of costs to be incurred hereafter. GOSWAMI, J.Civil Appeal No. 1304 of 1973 is by certificate granted by the Calcutta Hi Court and Civil Appeal No. 2063 of 1973 is by Special Leave of this Court. The first one arises out of Letters Patent Appeal No. 14 of 1969 of the Calcutta High Court dismissed on February 3, 1972, relying upon its earlier decision in Kalyani Dutt vs Pramila Bala Dassi since reported in I.L.R. (1972) 2 Calcutta 660. A preliminary question had arisen in connection with the aforesaid Letters Patent Appeal along with three other appeals at an earlier stage with regard to the constitutionality of section 13(3A) of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (briefly the Amendment Act). A Division Bench repelled the contention of the appellants in decision which has since been reported in A.I.R. (1971) Calcutta 331 (Sailendra Nath Ghosal & Ors. vs Sm. Ena Dutt & Others). The Division Bench had held that sub section (3A) of section 13 in so far as it was retrospective in operation was ultra vires Article 19(1) (f) of the Constitution on the ground of unreasonableness. Since, however, the Letters Patent Appeal was not completely disposed of, the bar of sub section (3A) was this time pleaded asserting that Article 19 was not at all attracted to the present case on the ground that the right of reversion of the landlord, namely, the right to recover possession of the property from the tenant, is not a right of property which is a condition precedent to the application of Article 19(1) (f) and consequently, the question as to the infringement of fundamental right did not at all rise and that there could not be, any scope for holding that the provision of sub section (3A) offended against Article 19(1)(f). This second contention which was allowed to be raised by the Letters Patent Bench was also repelled following its earlier decision in Kalyani Dults case (supra) disposed of on September 7, 1971. Civil Appeal No. 2063 of 1973 arises out of the decision of the High Court in Second Appeal No. 1193 of 1972 disposed of on 25th July, 1973 relying upon Sailendra Nath Ghosal 's case (supra) which is the subject matter of appeal in Civil Appeal No. 1304 of 1973. The history of tortuous litigation in both the appeals may also be noticed. In Civil Appeal No 1304 of 1973 the plaintiff (respondent herein) purchased the premises in suit on February 16, 1961. She instituted Title Suit No. 480 of 1961 in the court of Munsif of Sealdah, District 24 Pargana, for ejectment of the defendant, on July 24, 1961. The suit was decreed by the Munsif on July 21, 1964, but was dismissed by the lower appellate court on May 17, 1965. On second appeal at the instance of the plaintiff, the High Court framed an additional issue and remanded the suit to ram a finding on the same. On receipt of the finding of the court below, the learned single Judge of the High Court, dismissed the second appeal and granted 793 leave to a Letters Patent Appeal. That appeal was dismissed on February 3, 1972. The High Court granted certificate to appeal against that decision to this Court on May 24, 1973, referring to the earlier certificate granted by that Court in Kalyani Dutt 's case (supra). That is how Civil Appeal No. 1304 of 1973 is now before us. The facts in Civil Appeal No. 2063 of 1973 are these. The property in suit was purchased by the plaintiff (respondent herein) on February 7, 1964 and the eviction suit No. 76 of 1966 was instituted in February 1965. The suit was dismissed by the Trial Court on October 11, 1966. On appeal by the plaintiff, the Additional District Judge allowed the appeal on June 8, 1967, and remanded the suit for disposal after taking additional evidence. The Munsif thereafter decreed the plaintiff 's suit on December 23, 1968. On appeal by the defendant the Additional District Judge allowed the same and dismissed the suit on April 8, 1969. On plaintiff 's appeal to the High Court in Second Appeal No. 968 of 1969, the High Court allowed the same on April 3, 1971 and remanded the suit to the Munsif for retrial. The Munsif again dismissed the plaintiff 's suit on September 13, 1971. On appeal by the plaintiff the Additional District Judge allowed the same and decreed the suit on April 29, 1972. The High Court on appeal by the defendant dismissed the second Appeal on July 25, 1973, relying upon Salindra Nath Ghosal 's case (supra) disposed of on January 28, 1971. The defendant then obtained special leave. Thus the life of litigation in Civil Appeal No. 1304 of 1973 is now in the fourteenth year after purchase of the premises by the plaintiff six months earlier. The second one is a decade old; the property having been purchased about a year earlier. Both the appeals were argued together and will be governed by this common judgment. The suits in both the appeals are by what has come to be known as transferee landlords. They have instituted suits in one case within six months of the purchase in 1961 and in the other within one year of the purchase in 1965. During the long pendency of the litigation the West Bengal Premises Tenancy (Second Amendment) Act was passed which came into force on November 14, 1969. and section 4, inter alia, was made applicable to pending suits including appeals. It amended the West Bengal Premises Tenancy Act, 1956 (West Bengal Act XII of 1956) (briefly the Original Act). Section 4 of the Amendment Act introduced the following changes in section 13 of Section 13(1) (f) of the Original Act stood as follows the Original Act : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises %hall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f)Where the premises are reasonably required by the landlord either for purposes of building or rebuilding; or 4 L346Sup. CI/75 794 for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held". After the amendment of section 13 by section 4 of the Amendment Act clause (f) was split up into two clauses (f) and (ff) which read as under : "(f) Subject to the provisions of,sub section (3A) and section 18A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re building, or additions or alterations. cannot be carried out Without the premises being vacated; (ff) Subject to the provisions of sub section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation". In addition, section 4 of the Amendment Act introduced a new subsection (3A) which reads as follows : "Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest; Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller on the application of landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re building or the additions, or alterations, as the case may be, are necessary to make the premises safe for human habitation". It should be noted that the grounds for ejectment in the earlier sub section (f) ,ire the same as the new grounds in clauses (f) and (ff) except for some additional restrictions. The common grounds for eviction are, broadly speaking, reasonable requirement for the Purpose of building or rebuilding, etc. [sub clause (f)] and reasonable requirement for occupation by the landlord, etc. [sub clause (ff)]. There is, there fore, no particular significance to the mention of " grounds" in clause (f) or clause (ff) of subsection (1) in subsection (3A). ,Section 13 of the Amendment Act which is the bone of contention grants retrospectivity to section 4 of the Amendment Act and, therefore, necessarily to sub section (3A) and section 13(1)(f)(ff). The grievance centres round retrospectivity of sub section (3A) and 795 section 13(1)(f) and (ff) made applicable by force of section 13 of the Amendment Act to suits and appeals pending on the commencement of the Act. It may be in order first to deal with the question of retrospectivily of sub section (3A) which is the principal ground of attack in these appeals. Section 13 of the Amendment Act provides that. effect should be given to section 4 of the Amendment Act in pending suits including appeal on the date of the commencement of the Act. The suits of the particular category by transferee landlords, therefore, could be pending on commencement of the Amendment Act and these may have been instituted several years prior to the Amendment Act. There may also be appeals pending in different appellate courts against decrees in such suits. The appeals necessarily have to be understood as appeals arising out of suits instituted within the three years ' ban. The tenants are now permitted to take objection on the score of contravention of section 13(3A), before the courts either in a pending suit or in a pending appeal against decrees in such suits and the point for consideration then would be whether such a suit was instituted within three years ' ban and the appeal was pending against such a banned suit. When section 13 of the Amendment Act provides that section 4 therein has to be given effect in pending suits including appeals, effect has to be given by the courts. Now how will effect be given to section 13(3A) ? Retrospectivity to be given under section 13 of the Amendment Act to section 4 broadly requires compliance as follows (1) that no suit for eviction by a transferee landlord shall be instituted within three years of his acquisition of the premises; (2) if eviction is sought on the ground under section 13(1)(f) of the Amendment Act, an additional restriction is put, namely, that "such building or rebuilding or additions or alterations cannot be carried out without the premises being vacated"; (3) if eviction is sought on the ground under section 13(1)(ff), a further restriction is put upon the right of the landlord to evict, viz., that "the landlord or such person is not in possession of any reasonably suitable accommodation". Under proviso to section 13(3A) a transferee landlord can, however, institute a suit within three years ' ban provided he obtains prior permission from me Controller who on an application by the landlord and after hearing the parties may decide whether permission should be given or not. Prime facie, a suit which had already been instituted prior to the Amendment Act would not come within the mischief of section 13(3A) since this sub section, in terms, prohibits only institution of suits and does not provide for dismissal of suits already instituted. Similarly while there is a relaxation in favour of a transferee landlord under the proviso to obtain permission from the Controller this bene fit is out of the way even in a genuine case where the suit had already 796 been instituted within three years of purchase and the same or an appeal therefrom is now pending after the passing of the Amendment Act. In this regard also it appears sub section (3A) is not intended to be attracted to suits which were already instituted prior to the Amendment Act. But as will be seen hereafter the above position is altered by the express provision of section 13 of the Amendment Act whereby it is intended that the court should give retrospectivity, inter alia, to section 4 of the Amendment Act. On the terms of only section 13 (3A) it is difficult to hold that it would bring old sections within the mischief of section 13 (3A) which imposes a ban expressly on institution of suits within three years of the acquisition of ownership of the premises subject to the relaxation contained in the proviso thereto. This being the correct interpretation of sub section (3A), taken by itself, what is the effect of section 13 of the Amendment Act upon this provision? Section 13 of the Amendment Act in seeking to give retrospective effect to sub section (3A) does exactly what sub section (3A) by itself contra indicates. The first part of section 13(3A) which provides for a ban against institution of suits for eviction within three years of acquisition of the premises must be given effect to under section 13 of the Amendment Act in pending suits and in pending appeals arising out of the decrees passed in such suits provided the former had been instituted within the period of the ban. If, therefore, after the Amendment Act it is found in a pending suit or in a pending appeal that the particular suit was instituted within the three years ' ban the same will have to be dismissed and only in that way the court will be able to give effect to sub section (3A). With regard to the proviso of subsection (3A), when the ground of eviction is relatable to section 13(1)(f) of the Amendment Act the court will have to dismiss the suit in absence of the requisite permission. That being the practical result of restrospectivity given to subsection (3A), is that sub section, in so far as it is retrospective, violative of Article 19(1)(f) of the Constitution? That takes us to the object and purpose of the Amendment Act. The Statement of Objects and Reasons as quoted in Kalyani Dutt 's case (supra) is as follows "It has been considered necessary that some more relief should be given to the tenants against eviction, that the necessity of tender of rent to the landlord every time the rent is deposited with the Controller during a continuous period should be dispensed with, that the interests of the residents of hotels and lodging houses should be safeguarded and that the penalties for contravention of some of the provisions of the West Bengal Premises Tenancy Act, 1956, should be made more stringent". In the earlier judgment of the High Court which is also the subject matter of Civil Appeal No. 1304 of 1973 the High Court referred to the statement of the Minister at the time of piloting of the Bill in the following words: 797 "It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many: there is one class original owners who are the old inhabitants of the city; these owner landlords are not affluent; they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and re building, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase". The High Court also observed further that "there is nothing on the record to show that the mischief, sought to be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin". Again in Kalyani Dutt 's case (supra) the High Court in para 27 observed that "such suits are not many and at the same time most of them are pending for more than ten years". The materials relied upon by the High Court stand uncontradicted by any affidavit before US. On the above materials it is safe to hold that the main object of the Amendment Actis to counteract the "recent" mischief of circumvention of theprovisions of the original Act in order to evict tenants on even bona fide requirements specified under the law of device of transfer of premises held under the occupation of tenants. Although the Amendment Act has not completely barred institutions of suits by transferee landlords postponement of litigation for a period of three years from acquisition of the premises was provided for under subsection (3A). This had a twofold purpose, namely, to enable tenants a reasonable respite to arrange their affairs and also to discourage speculative acquisitions with an ulterior motive. This salutary pro vision for the general body of tenants cannot be called unreasonable. But the question is whether by applying the provision to pending suits and appeals has that object been achieved in the interest of the general body of tenants which would certainly constitute the general public within the meaning of clause 5 of Article 19? From the fact ,; and circumstances extra fed above from the two judgments of the High Court. it is not possible to bold that the interest of the general body of tenants would be served by application of sub section (3A) to pending suits and appeals. If the mischief was of "recent" origin, there is no reason to overshoot the mark and outstretch the long rope of the law beyond the 798 requirements of the situation. It is clear that in trying to include old actions that may be surviving in courts, per chance, because of laws ' proverbial delay, section 13 of the Amendment Act has gone far in excess of the actual needs of the time and problems and the provisions thereof cannot be said to impose a reasonable restriction on the right of the transferee landlords, albeit a well defined class, amongst tile landlords, to hold and enjoy their property in the interest of the general public. Such transferee landlords with pending old sections in suits or in appeals are, as observed by the High Court, not likely to be of a large number and necessarily so the tenants of such a sub sec class. It is not in the general interest of the large body of tenants to impose such restrictions on a few transfree landlords of this sub class subject to unbearable delay in litigation, understandably not on their own account. If relief in the shape of postponement of a landlord 's suit were the object of sub section (3A) in giving retrospectivity to it, the law did not take count of the inevitable long delay that takes place in pending litigation of this type as a result of man made laws of procedure in courts such as has even been clearly demonstrated by the cases at hand. The law that misses its object cannot justify its existence. Besides, it will be a sterile relief if tenants have to face a fresh summons next day. Hard cases will be on both sides of the line. law contemplates in terms of generality and is not intended to hit a few individuals by making invidious distinction. Article 19 of the Constitution confers protection of rights specified therein belonging to all citizens. Any individual citizen may complain of encroachment of his rights and freedom guaranteed under the Article. Law 's encroachment upon such rights and freedom of citizens can survive challenge if it passes the tests laid down in the six saving clauses of Article 19. Coming now to article 19(1)(f), with which we are concerned in these appeals, the said provision confers upon each individual citizen the right to acquire, hold and dispose of property, This right is subject to clause (5) which we may read so far as material for our purpose: "Nothing in sub clauses (d), (e) and (f) of the said clause shall . prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses . in the interests of the general public. . Even a single citizen may complain against violation of his fundamental rights under Article 19 (1) (f) and his vindication of his right may be defeated only if the impugned infringement brought upon by the law can be considered as a reasonable restriction and the ,aid restriction is also in the interests of the general public. It is manifest, therefore, under the Constitution. that an individual 's right will have to yield to the common weal of the general community. That general community may be in broad segments, but even then must form a class as a whole. A few individuals cannot take the place of a class and for the matter of that the general public In the present case the particular relief contemplated by the Amendment Act is in favour 799 of tenants in general and the restriction under sub section (3A) must ,be viewed in that context. It cannot be said that the legislature in applying sub section (3A) restrospectively has achieved that avowed object at all. The matter would have been different it, in view of any prevailing conditions, a reasonable date for giving retrospective effect were fixed under the law in the light of the known mischief. In its. absence, applicability of the blanket ban to pending suits and appeals cannot be said to be a reasonable restriction in the interests of the general public. It may help a few tenants in litigation but will prejudice the right of transferee landlords locked up in old and costly litigation. The gain of the few as opposed to the general public cannot be the touchstone for justifying reasonableness of the restriction imposed on the rights of the transferee landlords in applying subsection (3A) to pending suits and appeals. In the social combat between the interests of a few and the general welfare of the community the latter is the clinching factor to be reckoned and hard cases of a few individuals cannot be assigned a higher place and status than they deserve to the detriment of the fundamental rights of even a single individual. Therefore, the retrospectivity so far as sub section (3A) is concerned with regard to institution of suits made applicable to pending suits and. appeals is clearly very wide of a reasonable mark and is, thus, an imposition of an unreasonable restriction on the rights of the transferee landlords in pending suits which had been instituted prior to the Amendment Act and in appeals arising therefrom and it is not saved by the protective clause (5) of Article 19 of the Constitution. Sub section (3A) so far as it is retrospective and as such applicable to pending suits including appeal is ultra vires Article 19 (1)(f) of the Constitution. The provision is valid only prospectively. So far as the retrospectivity of section 13(1)(f) and (ff), the position is entirely different. Clearly further reliefs have been sought to be given to the tenants as a class by these provisions in the Amendment Act. These further reliefs are in the general interests of tenants and can be applied without any difficulty to pending suits including appears. There is nothing unreasonable about such a retrospectivity in applying these provisions for the general welfare of tenants in securing for them a safe and sure tenure as far as practicable untrammelled by inconvenient litigation. It is well established that the legislature in enacting laws can legislate prospectively as well as retrospectively. Section 13(1)(f) and (ff) are, therefore, not ultra vires Article 19(1) (f) of the Constitution. With regard to another contention of the appellants that the right of tile landlords that is affected by sub section (3A) is only a mere right to sue and at best a right of reversion and hence it is not a right to property under Article 19(1)(f) of the Constitution, it is sufficient to state that the question is covered by two decisions of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(1) and Swami (1) ; 800 Motor Transport (P) Limited and Another vs Sri Sankaraswamigal Butt and Another(1). The right to own and hold property in order to make an effective right under the Constitution must include tine right to possession of the property including the right to evict tenants in accordance with law. The submission is, therefore, without any force. The position, therefore, is that in a pending suit or even in a pending appeal a landlord may be given an opportunity to adduce evidence to establish such of the new requirements in 13(1) (f) or (ff) as are relevant to the proceedings. In that case the tenant will have also an opportunity to produce evidence in rebuttal. If the matter arises in a pending suit, it will be disposed of by the trial court. If, however, the matter arises in appeal, it will be open to the appellate court, in order to shorten the life of litigation, to remand the matter to the appropriate court to return a finding on such additional issues as may be framed to meet the requirements of (f) and/or (ff), as the case may be, under order 41, rule 25, Civil Procedure Code. In the result these appeals are partly allowed. The judgment of the High Court with regard to invalidity of sub section (3A) so far as it is retrospective and applicable to pending suits and appeals is upheld. The orders dismissing the appeals are, however, set aside and the appeals are remanded to the High Court for disposal in the light, of the observations with reference to section 13(1)(f) and/or (f) whichever is applicable. The landlords may now be given by the High Court an opportunity, if they so wish, to adduce evidence with regard to such further requirements under (f) and/or (ff) as may be applicable and the High Court will call for a finding from the appropriate court in that behalf and thereafter dispose of the appeals on merits. Since success is shared, there will be no orders as to costs in these appeals. ORDER In accordance with the majority judgment, the appeals are allowed with costs; the cases are remanded to the High Court, and the High Court is directed to dispose of the case in the light of the directions and observations made in the majority judgment. It will be open to the Court seised of the matter to direct, in its discretion, amount of costs to be incurred hereafter. P.B.R. (1) [1963] Supp. 1 S.C.R. 282. [/INST]The appellant was charged with two offences, (i) under section 307 I.P.C. with respect to one person, and (ii) under section 302/34, I.P.C. for having, along with other accused, caused the death of another. The trial court convicted him under s.324 I.P.C. on the first charge and acquitted him of the other charge. The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s.302/34 I.P.C. and sentenced to life imprisonment. Allowing the appeal to this Court, HELD : (1) In the case of an appeal against an acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction. But if the view of the trial court is not reasonably sustainable, on the evidence on record. the appellate court will interfere with the acquittal. If the High Court sets aside an acquittal and convicts, this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the trial court, on the evidence on record, is atleast as acceptable as the one taken by the High Court, before this Court could interfere with the decision of the High Court. [521D] (a) The First Information Report is a previous statement which, strictly speaking, can be only used to corroborate or contradict the maker of it. In the present case, the F.I.R. was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated. But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein that the appellant had stabbed the deceased. The omission of such an important fact affecting the probabilities of the case is relevant under s.11 of the Evidence Act in judging the veracity of the prosecution case. [522D] (b) The evidence, shows that the deceased was stabbed by one or the other accused; that the place of occurrence had been shifted by the witnesses for the prosecution; that the version of the alleged eye witnesses is not credible; and that the alleged dying declaration is unreliable. [524B D] (2) The High Court, having found that the appellant and the other accused were individually responsible for their acts, erred in finding the appellants guilty on the basis of common intention, of an offense under section 302/34 I.P.C. [524FG] (3) An appeal to this Court by the accused, in a case where his acquittal had been converted into a conviction and the sentence of life imprisonment was imposed upon him, lies as a matter of right under the , and no certificate of the High Court is necessary. [521A] </s>

<s>[INST] Summarize the judgementminal Appeal No. 217 of 1966. Appeal by special leave from the judgment and order dated September 16, 1966 of the Bombay High Court in Criminal Appeal No. 1349 of 1965. R. Jethamalani, N. H. Hingorani and K. Hingorani, for the appellant. D. R. Prem and section P. Nayyar, for the respondent. The judgment of the Court was delivered by Hidayatullah, J. On November 16, 1964, the shop of the ap pellant Govani situated in Suklaji Street, Bombay was searched by the Enforcement Branch of the Reserve Bank of India. Nothing incriminating from the point of view of the Reserve Bank was found in the shop but a large number of watches, clocks, cigarette lighters, cameras, transistors, tape recorders, etc., were found. The officers of the Enforcement Branch appear to have informed the customs authorities. The Assistant Collector of Customs thereupon issued a warrant for the search of the premises under section 105 of the . This warrant was made out in the name of Preventive Additional Chief Inspector R. C. Dutta, Preventive Inspector P. N. Ramchandani and Preventive Officers Ranade, Thakur and Menon. It was stated in the warrant that there were 417 reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the proceedings were secreted in the shop. The officers were accordingly charged with the duty to search and seize such prohibited and dutiable goods, documents and things in the shop under section 110 of the Act. The search was effected and the goods above mentioned were seized. Some of the watches were returned as they were old and given for repairs. The other watches were seized. Proceedings for the confiscation of the goods and for penalties were started by Dutta and a summons under section 108 of the Act was issued to Govani. He could not prove that the goods had borne the necessary customs duties. The Additional Collector of Customs, Bombay thereupon sanctioned his prosecution under section 135(b) of the Act. The trial took place before the Presidency Magistrate (19th Court), Bombay. Govani was charged on two counts, under. 135(a) and section 135(b) of the . Two witness es were examined at the trial. Preventive Officer, Customs, Ranade deposed to the seizure of the goods. As the search was under the direction of Dutta, Ranade admitted in cross examination that he was told by Dutta that information had been received that Govani had secreted some contraband articles in his shop. He admitted that Dutta decided which of the watches were to be seized and which were to be released. Ranade, however, stated that he had asked Govani to produce bills regarding the watches but Govani produced none. He had also asked Govani to produce the account books but Govani again did not produce any. The second witness Nanvani only proved the seizure of the contraband goods and the exhibits in the case. He was not cross examined. Govani did not lead any evidence in his own behalf. He was examined under section 342 of the Code of Criminal Procedure and admitted that he had neither imported the watches nor paid customs duty on them. He stated that he had purchased the watches from certain customers, sometimes one and sometimes two or three from the same customer. He had no defence evidence to lead but filed a written statement and claimed that no offence had been disclosed against him in the prosecution case as laid before the court. He analysed section 135 of the Act and stated that the gist of the offence was that he should have known or have had reason to believe that the contraband goods had not been customed. He stated that under section 123 of the Act, the burden would have been on him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to such belief. This statement was filed on July 15, 1965. The following day, the prosecution applied for the examination of Dutta, Inspector of Customs, Bombay as a court witness in the interests of justice. 418 This application was opposed by Govani. The Magistrate, however, by his order dated July 26, 1965, ordered the examination of Dutta under section 540 of the Code. Dutta stated that he had seized the watches in the reasonable belief that they were smuggled. Govani was thereafter examined again and was given an opportunity to lead defence evidence. He stated that he had nothing further to add and no defence evidence to lead. The Magistrate. after considering the arguments, convicted Govani under sections 135(a) and 135(b) of the awarding him a sentence of one year 's rigorous imprisonment and a fine of Rs. 2,000/ (in default, further rigorous imprisonment for six months) on each of the two counts. The watches were also ordered to be confiscated. Govani appealed to the High Court. His main contention was that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The High Court rejected these contentions and accepting the testimony of the witnesses on facts, upheld the conviction. Govani now appeals to this Court by special leave. The grant of special leave is limited to the questions whether the evidence of Dutta was improperly received by the Magistrate and whether, if excluded, the conviction of Govani can be supported. The question falls to be considered under section 540 of the Code ,of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous '. It provides : " section 540 : Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case. " The section gives a power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the COURT to act as the exigencies of justice require. Another aspect of 'his power and complementary to it is to be found in section 165 of the Indian Evidence Act which provides: " section 165 : The Judge may, in order to discover or to obtain proper proof of relevant facts,, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or 419 thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question These two sections between them confer jurisdiction on the Judge to act in aid of justice. The Presidency Magistrate, Esplanade, in, dealing with the petition to call Dutta passed an order on July 26, 1965 in which he remarked that there was no gap or lacuna in the prosecution case to fill because Dutta was named as one of the witnesses and as the officer who had seized the watches. He held that the evidence of Dutta was necessary for the just decision of the case. He accordingly granted leave for the examination of Dutta. In view of the fact that he spoke in the language of the second part of section 540, it is reasonable to think that he exercised the powers conferred on him under the second part although his order is not clear as to which part he had in mind. He, however, ruled that Govani would be further examined under section 342 of the Code of Criminal Procedure and allowed to lead further evidence. This action of the Magistrate which was approved by the High Court, is challenged before us. It is submitted that the powers under section 540, however wide, must be reconciled with the mandatory requirements of Chapter 21 laying down the procedure of trial of warrant cases by Magistrates. It is pointed out that the trial had gone through the stage of taking evidence for the prosecution (section 252), framing of the charge (section 254), recording of the plea (section 255) and the defence (section 256) of the accused and as Govani did not wish to lead evidence. (section 257), it had reached the stage of section 258 and the court could either acquit or convict him. It is, therefore, submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under section 135 (a) and (b) of the and of placing the burden upon Govani to rebut the presumption that the goods were smuggled. This, it is said, is not only unfair but unjust and cannot be regarded as falling within the powers of the court, however, wide the language of the section. We shall consider these objections and refer to the rulings which were cited before us in support of them. To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under section 540. Offences under .he Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and war5 Sup. C.I./67 13 420 rant cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under section 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there. Section 540 is intended to be wide as the repeated use of the word 'any ' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may ' in the first part and of the word 'shall ' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not sum moned, and (c) recall or re examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart, The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in. words which are oft quoted : "There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown." (Reg. vs Frost)(1). There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power (1) at 386. 421 is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex vs Dora Harris(1) : "The cases of Reg. vs Chapman ; and Reg. vs Holden ; establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right." However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in Reg. vs Frost(2) even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, "that the practice should be limited to a case where the matter arises eximproviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue" and cites the case of Reg. vs Haynes(3) where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris 's(1) case, five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power. Mr. Jethmalani relies strongly upon this case and cites several decisions of the High Courts in India in which this dictum was applied. In particular he relies upon In re K. V. R. section Mani(4 ), Shreelal Kajaria vs The State(5) and In re V. Mahadevan(6). In these cases it is laid down that the powers under section 540 of the Code of Criminal Procedure, wide though they may be, must not be exercised to the disadvantage of the accused, particularly after his defence is over. There is nothing new in these cases. They follow in essence the decision in Reg. vs Frost(2) as applied in Dora. Harris(1) case. (1) at 594. (2) 4St. (N.S.) 85 at 386. (3) [1859] 1 F. & F. 666. (4) I.L.R. [1951] Mad. (5) 1, (6) 422 On the other side reliance is placed upon In re K. K. Narayanali Nambiar(1), State vs Sheikh Mohamad Abdullah and others,(2), Ratnakar Das vs The State and others(3) and Ramjeet and others vs State(4) among others in which a liberal interpretation in favour of the court 's powers is placed upon the section. It is not necessary to refer to the cases cited on either side. They illustrate the application of the general principle spoken to by Avory J. in the extract from Dora Harris(5) case and the condition laid down in Reg. vs Frost(6) Dora Harris and Reg. vs Frost cases involved rebuttal of the defence evidence. In neither case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. It is difficult to limit the power under our Code to cases which involve something arising eximproviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris(5) case obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision. In William Sullivan(7) rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mckenna(8) it was held that a judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. In that case (like the one here) the defence had closed the case and the accused had submitted that there was no case to go to the jury. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and ,obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the ,court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but (1) A.I.R. 1942 Mad. (3) A.I.R. 1966 Orissa 102. (5) at 594. (7) (2) (4) I.L.R. [1958] All. 52. (6) at 386. (8) 423 if the court 's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. In the present case the position is this. In 1955, by a notification under the Imports and Exports (Control) Act, 1947, the import of watches, clocks and parts thereof except under a licence was completely stopped [Notification No. 17/1955 dated December 7, 1955 known as Imports (Control) Order, [1955]. Govani was found on November 16, 1964 to be in possession of 305 watches of foreign make. The warrant of search issued by the Assistant Collector of Customs recited : "Whereas there are reasons to believe that prohibited and dutiable goods liable to confiscation . are secreted in. Premises of Shri G. K. Gowani, Shop No. 20, Suklaji Street, Bombay, etc." The watches (among other articles) were seized by Dutta. He separated the old watches from the new and asked to see any document which would show that the watches were legitimately imported. Govani produced no document although a summons under section 108 of the was served upon him. The watches were, therefore, seized. There was evidence to show that in 1963 1,300 watches were seized from Govani 's locker in a safe deposit vault but the prosecution then had resulted in acquittal. The Magistrate and the High Court were of opinion that these circumstances might lead to a reasonable belief in the mind of the person seizing the watches, that they were smuggled. The prosecution examined Ranade, Prevention Officer, Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted. The question was why were the watches seized ? They were obviously not seized because they were stolen property or belonged to some other person. They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession. It is obvious that the just decision of the case required a finding whether they were smuggled or not. The circumstances already deposed to by Mukund Ranade and otherwise on the record clearly established that someone must have seized the watches entertaining a belief that they were smuggled. This belief obviously was entertained by Dutta. This was not a case in which the prosecution was trying to fill a gap in the pro secution case. The court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that Govani might be required, as the policy of the requires, to prove his innocent possession. Govani had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the 424 date of the seizures. He admitted this before and after Dutta 's evidence. In these circumstances it cannot be said that the court had exceeded its jurisdiction in acting under the second part of section 540 of the Code of Criminal Procedure. As Dutta 's evidence was rightly taken and gone into, and as Govani had no defence beyond taking advantage of the inadvertent omission, the defence had no merit. The conviction was, therefore, rightly reached. The appeal fails and is dismissed. R.K.P.S. Appeal dismissed. [/INST]The Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act, 1962 (Act 22 of 1962) was passed with the object of bringing uniformity in assessment of land revenue in the Telengana and Andhra areas of the State. It also provided for additional levies on certain classes of land. When the assessment of land revenue was sought to be collected from the respondents, they filed writ petitions in the High Court challenging the constitutional validity of the Act and the petitions were allowed. In appeal by the State to this Court. , HELD : The Act offended article 14 of the Constitution and was there fore void. Both in Andhra as well as Telengana area under the Ryotwari system, the land revenue which was a share of the produce of the land commuted in money value varied according to the classification of soil based upon its productivity; the soils of similar grain values were bracketed together in orders called 'tarams ' or 'Bhagana ' and the rates were further adjusted in the dry land having regard to the water supply. But in both the cases, the quality and the grade of the soil divided in 'Tarams ' or 'Bhaganas ' was the main basis for assessment. [37 E G] Sections 3 and 4 of the Act, in fixing the minimum flat rate for dry or wet lands, ignored the well established taram principle; and in the case of wet lands an attempt had been made to classify different systems on the basis of the ayacuts; but this test was unreasonable and had no relation to either the duration of water supply or to the quality or the productivity of the soil. The classification attempted in either case had No. reasonable relation to the objects sought to be achieved, namely, imposition of fair assessments and rationalisation of the revenue assessment structure. An arbitrary method has been introduced displacing one of the most equitable and reasonable methods adopted for many years in the revenue administration of the State. [44 C E] Further, the imposition of assessment was left to the arbitrary discretion of the officers not named in the Act without giving any notice, opportunity or remedy to the assessees for questioning the correctness of any of the important stages in the matter of assessment such as ayacut taram, rate or classification or even in regard to the calculation of the figures. It is not possible to read into the section the entire series of the Standing Orders of the Board of Revenue which deal with the mode of assessment: for if it was the intention of the Legislature that 29 the Standing Orders of the Board of Revenue should be brought into the Act by incorporation, it would have certainly used appropriates words to convey that idea. [45 D E; 48 E F] Kunnathat Thathunni Moopil Nair vs The State of Kerala, ; , East India Tobacco Co. vs State of Andhra Pradesh, ; and Khandige Sham Bhat vs The Agricultural Income tax Officer, ; , applied. C. V. Rajagopalachariar vs State of Madras, A.I.R. 1960 Mad. 543 and H. H. Vishwasha Thirtha Swamiar of Sri Pejavar Mutt vs The State of Mysore, , distinguished. </s>

<s>[INST] Summarize the judgementvil Appeal No. 938 of 1963. Appeal from the judgment and decree dated December 19, 1960 of the Allahabad High Court in Income tax Reference No. 1588 of 1956. K. N. Rajagopala Sastri, R. H. Dhebar and R. N. Sachthey, for the appellant. A. V. Viswanatha Sastri and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Subba Rao J. This appeal by certificate raises the question whether loss of cash by dacoity is an admissible deduction under section 10(1) of the Indian Income tax Act, 1922, hereinafter called the Act, in computing the assessee 's income in a banking business. The facts relevant to the question raised may be briefly state . The assessee is the Nainital Bank Limited. It is a puplic limited company which carries on the business of banking. It has various branches and one of them is situated at Ramnagar. In the usual course of its business large amounts were kept in various safes in the premises of the Bank. On June 11, 1951, at about 7 P.m. there was a dacoity in the Bank and the dacoits carried away the cash amounting to Rs. 1,06,000 and some ornaments etc. pledged with the Bank. For the assessment year 1952 53 the Bank claimed the said amount as a deduction in computing its income from the banking business on the ground that it was a trading loss. The Income tax Officer disallowed the claim on the ground that it was not a loss incidental to the banking business. On appeal, the Appellate Assistant Commissioner of Income tax, and on further appeal, the Income tax Appellate Tribunal, confirmed that finding. On a reference to the High Court of Judicature at Allababad, a Division Bench of that Court held that the loss by dacoity was incidental to the banking business and was, therefore, a trading, loss and that the assessee was entitled to a deduction of the same under section 10 (1 ) of the Act. Hence the appeal. Mr. Rajagopala Sastri, learned counsel for the appellant, argued that the Bank lost the money by burglary not in its capacity as a bank but only just like any other citizen, that the risk of L2Sup./64 9 342 burglary was not incidental to the business of banking and that, therefore, the amount burgled could not be deducted as a trading loss. Mr. A. V. Viswanatha Sastri, on the other hand, contended that the money lost by burglary was the stock in trade of the banking business, that it was kept in the Bank in the usual course of its business and that the risk of its loss was incidental to the carrying on of the said business and, therefore, the amount lost was a trading loss liable to be deducted under section 10(1) of the Act. Before we consider the law on the subject, it would be con venient at the outset to notice briefly the scope of the activities of banking business. Under section 5 (1 ) (b) of the Banking Companies Act, 1949, "banking" is defined to mean "the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or Otherwise"; and under section 5 (1) (c), "banking company" means any company which transacts the business of banking in India; under section 5(1) (cc), " 'branch ' or 'branch office in relation to a banking company, means any branch or branch office, whether called a pay office or sub pay office or by any other name, at which deposits are received, cheques cashed or money lent, and for the purposes of section 35 includes any place of business where any other form of business referred to in subsection (1) of section 6 is transacted," Therefore, a banking business consists mainly in receiving deposits, making advances, realizing them and making fresh advances. It is a continuous process which requires maintenance of ready cash in the bank premises. The Nainital Bank Ltd., is a public limited company incorporated for carrying on such banking business and Ramnagar branch is one of its branches doing such business. Unlike an individual, a limited company like a banking company comes into existence for the purpose of carrying on only the banking business and ordinarily there cannot be any scope for attributing different characters to that business. We therefore, start with the fact that the Ramnagar branch of the Bank had kept large amounts in the Bank premises in the usual course of its business in order to meet the demands of its constituents. It is settled law, and indeed it is not disputed, that cash is the stock in trade of a banking company. In Arunachalam Chettiar vs Commissioner of Income tax Madras(1), the Judicial Committee was considering the basis of the right of an assessee to ((1) , 83 (P.C.). 343 deduct irrecoverable loans before arriving at the profits of moneylending, and in that context stated: "The basis of the right to deduct irrecoverable loans before arriving at the profit of money lending is that to the money lender, as to the banker, money is his stock in trade or circulating capital; he is dealing in money." In Commissioner of Income tax, Madras vs Subramanya Pillai(1) a Division Bench of the Madras High Court, in explaining the principle why in money lending business allowances for bad debts were given, observed: "In the case of banking or money lending business . allowance for bad and doubtful debts was given for the reason that all the moneys embarked in the moneylending business and lent out for interest were in the nature of stock in trade of the banker or money lender and the bad and doubtful debts represented so much loss of the stock in trade. Losses in respect of the stock intrade have always been regarded as trade losses and allowed to be set off against the receipts. " The same view was expressed by the Full Bench of the Madras High Court in Ramaswami Chettiar vs Commissioner of Income tax, Madras (2 ) and by the Patna High Court in Motipur Sugar Factory, Ltd. vs Commissioner of Income tax, Bihar & Orissa(3). Under section 10(1) of the Act loss of stock in trade is certainly an admissible deduction in computing the profits. Payment received from an insurance company for stock destroyed by fire was taken into account as a trading receipt in computing the profits assessable to income tax; see Green (H. M. Inspector of Taxes) vs J. Gliksten and Son, Ltd. (4) ; and Raghuvanshi Mills Ltd. vs Commissioner of Income tax, Bombay City(5). If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss. Loss sustained by an assessee owing to destruction of the stock in trade by enemy invasion was held to be a trading loss which the assessee was entitled to claim as a deduction: see Pohoomal Bros. vs Commissioner of Income tax, Bombay City(6). Loss incurred in stock in trade by ravages of white ants was allowed as trading loss in computing the profit of a business; see Hira Lal Phoolchand vs Commissioner of Income (1) , 92. (3) (5) ; (2) I.L.R. (4) (6) 344 tax, C.P., U.P. and Berar(1). We, therefore, reach the position that cash is a stock in trade of a banking business and its loss in the course of its business under varying circumstances is deductible as a trading loss in computing the total income of the business. But it is said that every loss of a stock in trade in whatsoever way it is caused is not a trading loss, but the said loss should have been caused not only in the course of the business but also should have been incidental to it. The leading case on the subject is that of this Court in Badridas Daga vs Commissioner of Income tax(2). There, the appellant was the sole proprietor of a firm which carried on the business of money lending. The agent of the firm withdrew large amounts from the firm 's bank account and applied them in satisfaction of his personal debts. In the firm 's account the balance of the amount not recovered from the agent was written off at the end of the accounting year as irrecoverable. This Court held that the loss sustained by the appellant therein as a result of I misappropriation by the agent was one which was incidental to the carrying on of the business and should therefore, be deducted in computing the profits under section 10 (1) of the Act. Venkatarama Ayyar J., speaking for the Court, observed: ,,The result is that when a claim is made for a deduction for which there is no specific provision in section 10(2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act. " Applying the principle to the facts of the case before the Court, the learned Judge proceeded to state: "If employment of agents is incidental to the carrying on of business, it must logically follow that losses which are incidental to such employment are also incidental to the carrying on of the business. " The principle was clearly laid down and was, if we may say so, correctly applied to the facts before the Court. But there is a (1) (2) ; 345 passage in the judgment on which strong reliance was placed by the learned counsel for the appellant and it was contended that the instant case clearly fell under the illustration contained in the passage. It reads: "At the same time, it should be empbasised that the loss for which a deduction could be made under section 10(1) must be one that springs directly from the carrying on of the business and is incidental to it and not, any loss sustained by the assessee, even if it has some connection with his business. If, for example, a thief were to break overnight into the premises of a money lender and run away with funds secured therein, that must result in the depletion of the resources; available to him for lending and the loss must, in that sense, be a business loss, but it is not one incurred in the running of the business, but is one to which all owners of properties are exposed whether they do business or not. The loss in such a case may be said to fall on the assessee not as a person carrying on business but as owner of funds. This distinction, though fine, is very material as on it will depend whether deduction could be made under section 10(1) or not. " It was said that the loss in the present case fell on the assessee not as a person carrying on the business of banking but as owner of funds. That passage in terms refers to a money lender and does not deal with a public company carrying on banking business. In the case of a money lender the profits he made may form part of the private funds kept in his house which he may or may not invest in his business. It is indistinguishable from his other moneys. But in the case of a bank the deposits received by it form part of its circulating capital and at the time of the theft formed part of its stock in trade. In one case it cannot be posited that the amount robbed is part of the stock in trade of the trader till he invests it in his business; in the other it forms part of the stock in trade without depending on the intention of the banking company. There lies the distinction between the instant case and the illustration visualized by this Court. We have only suggested a distinction, but we are not expressing any definite opinion on the question whether the loss incurred in the case illustrated is or is not a trading loss. The correctness or otherwise of the said observation may fall to be considered when such a case directly arises for decision. 346 Before parting with this decision, it may be noticed that this Court agreed with the decisions in Venkatachalapathy lyer vs Commissioner of Income tax(1), Lord 's Dairy Farm Ltd. vs Commissioner of Income tax(2) , and Motipur Sugar Factory Ltd. vs Commissioner of Income tax( 3 ). The decision in Motipur Sugar Factory case(3), which was accepted by this Court to be correct, takes us a step further in the development of law. There, the assessee company was carrying on business in the manufacture of sugar and molasses out of sugarcane. It deputed an employee,in compliance with the statutory rules, with cash for disburse ment to sugarcane cultivators at the spot of purchase. The cash was robbed on the way. The Division Bench of the Patna High Court held that the loss of money was loss arising out of the business of the assessee and sprang from the statutory necessity of sending money to various purchasing centres for disbursement and, therefore, the assessee was entitled to deduct the loss in computing its taxable income under section 10(1) of the Act. It will be noticed that this is not a case of misappropriation by a servant of the company, but a case of loss to the company by reason of its cash being robbed from its servant. In that case, cash was entrusted to the employee under statutory rules. But there may be cases where such entrustment may be made by custom or practice. What is important to notice is that robbery of cash from the hands of an employee is held to be incidental to the business of the assessee. If that be so, why should a different principle be adopted if the loss was not caused by robbery from the hands of the employee on his way to a particular place in discharge of his duty, but it was a loss caused by dacoity from the premises of the bank itself. In one case, the employee carried cash for disbursement to sugarcane cultivators, and in the other, funds were lodged in the Bank with reasonable safeguards for disbursement of the same to its constituents. If the loss was incidental to the business in one case, it should equally be so in the other case. The judgment of the Special Bench of the Madras High Court in Ramaswami Chettiar vs The Commissioner of Income tax, Madras(4) supports the case of the Revenue. There, the loss was incurred by theft of money used in moneylending business and kept in the business premises. The Full Bench by majority held that the loss incurred thereby should not be allowed in computing the income tax, as the theft was committed by persons who were not at the time of commission employed as clerks or servants by the assessee. This judgment, (1) (3) (2) (4) Mad. 347 if we may say so with respect, takes a narrow view of the problem. Indeed in Motipur Sugar Factory case(1), which was approved by this Court, the theft was committed not by the employee of the company but by robbers. To that extent the correctness of the Madras decision is shaken. That apart the judgment of Anantakrishna Ayyar J., who recorded a dissent, contains a constructive criticism of the majority view. We prefer the view of Anantakrishna Ayyar J., to that of the majority. The decision of the High Court of Australia in Charles Moore and Co. (W. A.) Pvt. Ltd. vs Federal Commissioner of Taxa tion(2) throws considerable light on the subject. In that case the assessee was carrying on business of a departmental store and he banked the takings thereof daily. It was the practice every business morning for the cashier accompanied by another employee to take the previous day 's takings to the bank some two hundred yards away and pay them to the credit of the assessee. One day, while on their way to the bank the two employees were held up at gun point and robbed of a large amount which formed part of the receipts of the assessee for the previous day. The Court held that the loss was incurred in gaining or producing the assessable income of the year in question within the meaning of section 5 1 (I) of the Income Tax and Social Services Contribution Assessment Act, 1936 52 and was not a loss or outgoing of capital or of a capital nature, and was consequently a deduction from assessable income in such year. It was pointed out therein: "Banking the takings is a necessary part of the operations that are directed to the gaining or producing day by day of what will form at the end of the accounting period the assessable income. Without this, or some equivalent financial procedure, hitherto undevised, the replenishment of stock in trade and the payment of wages and other essential outgoings would stop and that would mean that the gaining or producing of the assessable income would be suspended. " Then the Court proceeded to state "The 'occasion of the loss ' in the present case was the pursued in banking the money . There Is no difficulty in understanding the view that involuntary outgoings and unforeseen or unavoidable losses should be allowed as deductions when they represent that kind of casualty, mischance or misfortune which is a natural or recognized incident of a particular trade or (1) (2) ; , 350. 348 business the profits of which are in question. These are characteristic incidents of the systematic exercise of a trade or the pursuit of a vocation.(1) Even if armed robbery of employees carrying money through the streets had become an anachronism which we no longer knew, these words would apply. For it would remain a risk to which of its very nature the procedure gives rise. But unfortunately it is still a familiar and recognized hazard and there could be little doubt that if it had been insured against the premium would have formed an allowable deduction. Phrases like the foregoing or the phrase 'incidental and relevant ' when used in relation to the allowability of losses as deductions do not refer to the frequency, expectedness or likelihood of their occurrence or the antecedent risk of their being incurred, but to their nature or character. What matters is their connection with the operations which more directly gain or produce the assessable income. " This decision laid down the following principles: (i) banking the takings was a necessary part of the operations of the business with which the court was dealing in that case; (ii) the loss to the business caused by robbery was incidental and relevant to that business as the procedure involved in carrying on of the business carried with it the risk of the cash being robbed on the way; (iii) the expressions "incidental" and "relevant" in relation to losses did not relate to the frequency of the happening of the risk but to their nature and character, that is to say, the loss must be connected with the operation to produce income. The judgment of the Supreme Court of Newzealand in Gold Band Services Limited vs Commissioner of Inland Revenue ( 2 ) applied the decision of the Australian High Court cited above to a situation which comes very near to our case. The appellant therein owned and operated a petrol service station which was kept open continuously. It was held up by an armed robber and a substantial sum of money was stolen. The Court held that the sum lost as a result of the robbery was a loss exclusively incurred in gaining or producing the assessable income of the appellant and was deductible from its ' gross income. Adverting to the argu ment very often advanced in courts based upon the robbery being committed in the premises and that committed on the way to a bank, Haslain J. observed (1) Rich J. in Commissioner of Taxation (N.S.W.) vs Ash at 277. (2) ,470. 349 .lm15 I can see no valid distinction to be drawn in principle between the robbery of trade receipts on the appellant 's premises at an hour before banking was possible (but intended to be banked at a time when the banks were open) and the robbery of the same money when in the custody of the employee on the way to the bank. In my opinion, the occasion for the loss of the present appellant was the operation of its business in the normal way, with the result that the cash stolen was on the premises at that particular time and that the possibility of such plunder constituted an attraction to a certain type of criminal, including both the safe blower and the armed burglar. " The present case is a stronger one, for the money was kept in the Bank as it was absolutely necessary to carry on the operation of the banking business. We may now summarize the legal position thus. Under section 1O (I ) of the Act the trading loss of a business is deductible for computing the profit earned by the business. But every loss is not so deductible unless it is incurred in carrying out the operation of the business and is incidental to the operation. Whether loss is incidental to the operation of a business is a question of fact to be decided on the facts of each case, having regard to the nature of the operations carried on and the nature of the risk involved in carrying them out. The degree of the risk or its frequency is not of much relevance but its nexus to the nature of the business is material. In the present case the respondent was carrying on the busi ness of banking. It is an integral part of the process of banking that sufficient moneys should be kept in the bank duly guarded to meet the demands of the constituents. The retention of the money in the bank is a part of the operation of banking. The retention of money in the bank premises carries with it the ordinary risk of its being subject of embezzlement, theft, dacoity or destruction by fire and such other things. Such risk of loss is incidental to the carrying on of the operations of the business of banking. In this view, we are clearly of the opinion that the loss incurred by dacoity in the present case is incidental to the carrying on of the business of banking. In the result, the order of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed. [/INST]The appellant was assessed to agricultural income tax by the Assistant Collector, Banaras, U.P. Act 3 of 1949, under which assessment was made, mentioned only the 'Collector ' a.,, competent to make assessment. The assessment made by the Assistant Collector was therefore set aside by the Collector. Subsequently the law was amended by U.P. Act 14 of 1956 to provide that the word 'Collector ' would include 'Assistant Collector ' and that the Collector could review his earlier orders quashing assessments on the ground of want of jurisdiction, if application for review were made to him by any of the parties within 90 days of the coming into force of the amendment. Such application having been filed in the appellant 's case, the Collector set aside his earlier orders quashing the assessment, and the Assistant Collector made a fresh assessment. The fresh assessment was challenged by the appellant by writ petition in the High Court and having failed there, The appellant came to the Supreme Court by special leave. It was contended on behalf of the appellant that the assessment made by virtue of the provisions of the amending Act was barred by limitation because the retrospective operation of the provisions relating to jurisdiction would not extend the time for making the assessment. HELD : The Collector 's order on the review application had the effect of restoring the earlier proceedings. No question of limitation could possibly arise, for those proceedings were initiated in time and must be deemed to have been pending throughout, and the fresh assessment was made in those very proceedings. [339 A B]. section C. Prashar vs Vasantsen, ; and Commissioner of Income tax, Bihar vs Lakhmir Singh, A.I.R. , held inapplicable. </s>

<s>[INST] Summarize the judgementiminal Appeal No. 62 of 1951. Appeal by special leave granted by the Supreme Court of India on the 14th May, 1951, from the Judgment and Order dated the 9th August, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) in Criminal Appeal No. 319 of 1950 arising out of the Judgment and Order dated the 6th January, 1950, of the Court of the Sub Divisional Magistrate F.C., Ratnagiri City, in Criminal Case No. 77 of 1949. 774 M. C. Setalvad, Attorney General for India (G. N. Joshi and P. A. Mehta, with him) for the appellant. K. B. Chaudhury for the respondent. March 13. The Judgment of the Court was delivered by MAHAJAN J. The respondents were charged with having committed an offence punishable under section 9(2) read with section 4 of the Bombay Building (Control on Erection) Act, 1948, for commencing the work of erection of a cinema theatre without obtaining the necessary permission from the controller of buildings, Bombay. The sub divisional magistrate, Ratnagiri, held that the Act not having been validly extended to Ratnagiri, no permission of the controller of buildings was necessary for the construction. He accordingly acquitted them. On appeal by the State Government, the order of acquittal was maintained by the High Court. This appeal is before us by special leave from the concurrent orders of acquittal. Special leave was granted on the Attorney General for India undertaking on behalf of the State Government of Bombay that whatever the decision of the court might be, no proceedings will be taken against the respondents in respect of the subject matter under appeal. At the hearing of the appeal it was made plain by the learned Attorney General that no adverse consequences will flow to the respondents or to their building being completed, by the acquittal order being pronounced as bad, and that the State Government will not in any way interfere with the respondents when they take steps to complete the building, the construction of which was commenced without the permission of the controller. The State Government merely wants to have the question of law decided as a test case because the decision of the High Court, if left unchallenged, would have far reaching effects. The facts giving rise to the prosecution of the respondents, shortly stated, are these: There was in force in the State of Bombay an Ordinance, Bombay 775 Building (Control on Erection) Ordinance, 1948. It was applicable to certain areas specified in the schedule. The district of Ratnagiri was not one of the areas therein specified. Sub section (4) of section (1) of the Ordinance empowered the provincial government by notification in the official gazette to extend to any other area specified in such notification its provisions. It further empowered the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purpose as may be specified in the notification. On 15th January. 1948, the Government of Bombay issued the following notification: " In exercise of the powers conferred by sub section (4) of section 1 of the Bombay Building (Control on Erection) Ordinance, 1948 (Ordinance No. I of 1948), the Government of Bombay is pleased to direct that the said ordinance shall also extend to all areas in the province of Bombay other than the areas specified in the schedule to the said Act and that it shall apply to said areas only in respect of buildings intended to be used for the purpose of cinemas, theatres and other places of amusement or entertainment. " The consequence of this notification was that in the district of Ratnagiri no cinema building could be commenced without the permission of the controller after that date. Ordinance I of 1948 was repealed by Act XXXI of 1948, The Bombay Building (Control on Erection) ' Act, 1948". It was made applicable to areas specified in the schedule. Sub section (3) of section I authorized the provincial government by notification in the official gazette to direct that it shall also extend to any other. areas specified therein. It further authorized the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purposes as may be specified in the notification. By section 15(1) of the Act it was pro vided that `` The Bombay Building (Control on Erection) Ordinance, 1948, is hereby repealed and it is hereby 776 declared that the provisions of sections 7 and 25 of the Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment. " The respondents started constructing a cinema at Ratnagiri on 15th August, 1948, after the commencement of Act XXXI of 1948 without obtaining the permission of the controller of buildings as required by the Act under the impression that the Act had application only to areas specified in the schedule and the district of Ratnagiri not having been specified in the schedule, the provisions of the Act had no application to that area. As above stated, they were prosecuted for committing an offence under section 9(2) read with section 4 with the results above mentioned. The order of acquittal was based on the ground that although the notification extended the scope of the ordinance to area, other than those which were mentioned specifically in the schedule thereto, it did not extend to those areas the provision, of the Act in spite of the application of the provisions of section 25 of the Bombay General Clauses Act. In Judgment, the construction placed by the High Court on the language of section 15 is erroneous and full effect has not been given to its provisions or to the provisions of section 25 of the Bombay General Clauses Act. We think on a true construction of section 15 of the Act and section 25 of the Bombay General Clauses Act, the notification issued on 15th January, 1948, under the ordinance continued in force under Act XXXI of 1948 and that by it the provisions of the Act stood extended to other areas in the State to the extent indicated in the notification. Section 25 of the Bombay General Clauses Act, 1904, provides `` Where any enactment is, after the commencement of this Act, repealed and re enacted by a Bombay Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye law or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re enacted, 777 continue in force and be deemed to have been made or issued under the provisions so re enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, bye law or form made or issued under the provisions so re enacted. " It cannot be contended that the notification was inconsistent with the provisions of Act XXXI of 1948. It is clearly in accordance with its scheme and purpose. The High Court did not combat the proposition that in view of the provisions of section 25 of the Bombay General Clauses Act the notification continued in force after the coming into force of the Act. It, however, held that even if the notification was taken as having been issued under Act XXXI of 1948, the notification merely extended the ordinance to these areas and not the Act. In the opinion of the High Court, the word "Act " instead of " Ordinance " could not be read in the words of the notification by the force of section 25 of the Bombay General Clauses Act and the notification literally construed, only extended the ordinance to those areas. It was considered that if the intention was to extend the Act to these areas, such an intention could only be carried out by enacting in Act XXXI of 1948 a proviso like the one enacted in the Cotton Cloth and Yarn (Control) Order, 1945, or by use of language similar to the one used in section 9 of the Bombay General Clauses Act, 1904. The proviso in the Cotton Cloth and Yarn (Control) Order is in these terms:" Provided further any reference in any order issued under the Defence of India Rules or in any notification issued thereunder to any provision of the Cotton Cloth and Yarn (Control) Order, 1943, shall, unless a different intention appears, be construed as reference to the corresponding provision of this Order. " We do not find it possible to support this line of reasoning. It appears to us that the attention of the learned Judges was not pointedly drawn to the concluding words of section 15 (1) of the Act. It is specifically provided therein that the provisions of 778 sections 7 and 25 of the Bombay General Clauses Act shall apply to the repeal as if the ordinance were an enactment. The ordinance by use of those words was given the status of an enactment and therefore the word "ordinance" occurring in the notification has to be read accordingly and as extending the Act to those areas, and unless that is done, full effect cannot be given to the 'Concluding words used in section 15(1) of the Act. The concluding words of section 15(1) of the Act achieve the purpose that was achieved in the Cotton Cloth and Yarn (Control) Order by the "proviso. " By reason of the deeming provisions of section 15, the language used in the notification extending the ordinance to those areas as a necessary consequence has the effect of extending the operation of the Act to those areas. When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton : In re Levy(1)]. If the purpose of the statutory fiction mentioned in section 15 is kept in view, then it follows ,that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. vs Finsbury Borough Council(2), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows: " If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. . The statute says that you must imagine a certain state of affairs; it does not (1) , at P. 756, (2) 779 say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " The corollary thus of declaring the provisions of section 25 of the Bombay General Clauses Act applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment. For the reasons given above we are satisfied that the High Court was in error in holding that the notification only extended the provisions of the ordinance to Ratnagiri district and not the provisions of Act XXXI of 1948 to that area. It may, however, be observed that the manner adopted by the legislature in keeping alive the notifications issued under the ordinance by use of somewhat involved language in matters where the rights of the citizens regarding the construction of buildings were being affected was not very happy. It has certainly led three judges to think that the intention of the legislature was not brought out by the language. People who are not lawyers may well be misled into thinking that the notification issued under the ordinance has terminated with its repeal and not having been re issued under the Act, the provisions of which again in clear language provide that it only extends to areas specified in the schedule and which gives power to extend it, that those areas are excluded from the scope of the Act. It would have been much simpler if the legislature made its intention clear by use of simple and unambiguous language. Because of the undertaking given by the learned Attorney General not to proceed any further in this matter, it is not necessary to set aside the acquittal order of the respondents, which will remain as it stands. A appeal allowed. Acquittal not set aside. [/INST]The Bombay Building (Control on Erection) Ordinance of 1948 applied to certain areas mentioned in the Schedule to the Ordinance, and in exercise of the powers vested in it by the Ordinance the Government extended its provisions to certain other areas including Ratnagiri in respect of buildings intended to be used for cinemas and other places of entertainment, by a notification of the 15th January,. This Ordinance was repealed by the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to those of the earlier Ordinance. Section 15(1) of the Act repealed that Ordinance and declared that " the provisions of sections 7 and 25, Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment. " Held, reversing the judgment of the Bombay High Court, that on a true construction of section 15(1) of the above said Act and section 25 of the Bombay General Clauses Act, 1904, the notification issued on the 15th January, 1948, under the Ordinance continued in force under the Act of 1948 and that by it the provisions of the Act stood extended to other areas in the State including Ratnagiri to the extent indicated in the notification. Ex parte Walton: In re Levy and East End Dwelling Co. Ltd. vs Finsbury Borough Council ([1952] A.C. 109) referred to. </s>

<s>[INST] Summarize the judgementl Appeal No. 1803 of 1070 From the Judgment and order dated 6.8.1968 of Patna High Court in first appeal No. 444 of 1967. D.N. Mukherjee, Ranjan Mukherjee, A.K. Ganguli & S.C. Ghosh for the appellant. R.B. Datar and Ms. Vina Tamta for the respondents. The Judgment of the Court was delivered by DEASI J. Appellant, an employee of Tata Iron and Steel Company Limited (`Company ' for short) has been chasing a mirage. to wit to recover a paltry sum of Rs 14040 being the amount of gratuity to which he was entitled for the continuous service rendered by him from December 31, 1929 till August 31, 1959 under what are styled as Retiring Gratuity Rules, 1937 (`Gratuity Rules ' for short) from the Company and in this wholly unequal fight he laid down his life before enjoying the pittance to which he was entitled after three decades of loyal service. What a dreadful return for abject loyalty? When the appellant retired by resignation from service he was paid his provident fund dues but gratuity which he was entitled to be paid under the relevant rules was not paid to him. When the appellant claimed payment of gratuity, the respondent turned deal 329 ears to it. Appellant sevred a notice dated September 6, 1981 calling upon the respondent to pay the amount of gratuity being Rs. 14040 . The Company did not respond to the notice. Thereupon the appellant filed M.S. No. 452 of 1962 in the court of Subordinate Judge at Jamshedpur. The respondent appeared and contested the suit inter alia contending that `in terms of the contract of service and particularly having regard to the relevant rules under which gratuity can be claimed, the same is payable on certification of satisfactory service by the head of the department, and it is payable at the absolute discretion of the Company irrespective of whether the employee has or has not performed all or any of the conditions stated in the rules and no employee howsoever otherwise eligible is entitled as of right to any payment under the rules. ' The learned trial Judge framed the issues on which parties were at variance. The learned Judge held that the plaint does disclose a cause of action and the plaintiff was entitled to claim and recover the amount of gratuity with interest thereon. Accordingly, the suit was decreed against the. Company directing it to pay the amount claimed in the plaint with future interest at 6% per annum with costs. The respondent Company preferred First Appeal No. 444 of 1963 in the High Court of Judicature at Patna. A Division Bench of the High Court held: i) that the service conditions of the plaintiff were governed by the Works Standing orders and that it was an implied condition of service that the plaintiff could get gratuity in accordance with the Gratuity Rules; (ii) that in view of Rule 6, an employee governed by the Gratuity Rules is not entitled to claim the same as a matter of right but he merely attains the benefit of eligibility or suitability for the retiring gratuity and not the right; iii) that until and unless the Company has decided to pay the gratuity in accordance with Rule 7 or otherwise, the mere fact of the employee becoming eligible to get it under the relevant rules which can be enforced in a civil court because the matter of payment of gratuity is at the absolute discretion of the Company as provided in Rule 10, and the employee, howsoever unfortunate the position may be under the modern stage of the society is not entitled to claim it as a matter of right because even though payment of gratuity under the Gratuity Rules is an implied condition of service, 330 yet the condition is further conditioned by the provisions made in the Rules and is subject to them; iv) that such a claim may enforced before the Industrial Tribunal under the but it is not possible to hold that the law of contract or the law of master and servant which is the only law to be enforced in a civil court can justify on interpretation of the Gratuity Rules in question that the plaintiff can be granted decree for payment of gratuity on the footing that it was the unconditional or unconditioned contractual obligation of the employer to pay such a money; v) the payment of gratuity money is not a gift pure and simple, but under the relevant rules it is in the nature of an inchoate claim or interest and not a right enforceable by a suit in court, because under the contract of service, the grant of gratuity has been left to the sole discretion of the employer as the relevant rules provided that no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules. Accordingly the appeal was allowed and the judgment and decree of the trial court were set aside and the plaintiff 's suit was dismissed, directing the parties to bear their costs. Hence this appeal by the plaintiff by special leave. At the outset it is necessary to notice the relevant rules relied upon by the respondent in support of its submission that the gratuity cannot be claimed as a matter of right and the claim to gratuity cannot be enforced in the civil court. The Retiring Gratuity Rules came into force with effect from April 1, 1937 and at the relevant time, the rules as amended in 1948 were in operation. Rule 5 provides for retirement of every uncovenanted employee of the Company on attaining the age of 60 years subject to the right of the company to grant extension. This rule is a mere incorporation of S.O. 54 which provides for retirement on attaining the age of 60. Rules 6, 7 and 10 may be extracted: "6. (a) Subject to the conditions referred to in these rules, every permanent uncovenanted employee of the Company, whether paid on monthly, weekly or on daily basis, including those borne on the pay rolls of the Company of the Collieries and at ore Mines and Quarries, will be eligible for a retiring gratuity which shall be equal to half a month 's salary or wages for every completed year of continuous service, 331 subject to a maximum of twenty months salary or wages in all, (b) Provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) hereof, before he has served the Company for a continuous period of 15 years, a gratuity ordinarily limited to half a month 's salary or wages for each qualifying year may be paid subject, however, to a maximum of 6 months ' salary or wages in all. (Amended vide Board Resolution No. VII dated 2nd July, 1953.) (c) The retiring gratuity will be based on the rate of the salary or wages applicable to the employee in the last month of active service or if the employee has retired while on leave, in the last month prior to the employee going on leave. (d) In the case of an uncovenanted employee who has been transferred to another Tata concern, the retiring gratuity payable to him under Rule (4) 8 (a) hereunder will be based on the rate of the salary or wages applicable to the employee in the last month of service with the Company, (In force from 1.4.1946 as per Board Resolution dated 8.4.1948.) 7. Notwithstanding anything contained in these Rules a gratuity shall become due and be payable and shall always have been deemed to have become due and payable only in such instalments and over such period or periods as may be fixed by the Board of Directors of the Company or subject to the direction of the Board by the Managing Agents. Until any such instalment shall become or have become due and payable, the employee or any dependent who qualifies for payment under the Gratuity Rules shall not be eligible to receive or be paid any such instalment of the gratuity. All retiring gratuities granted under these Rules other than special gratuity to be paid under the provisions of Rule 22 hereof shall be at the absolute discretion of the Com 332 pany irrespective of whether an employee has or has not performed all or any of the conditions herein after stated and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under these Rule. (Amended vide Board Resolution No. v dated 25.8.1955). " The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his post. This aspect to some extent agitated the mind of the High Court. It may be dealt with first. It is not only not in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959. On exact computation, the plaintiff rendered service for 29 years and 8 months. Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent uncovenanted employee of the Company whether paid on monthly, weekly or daily basis will be eligible for retiring gratuity which shall be equal to half a month salary or wages for every completed year of continuous service subject to a maximum of 20 months salary or wages in all provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) before he has served the Company for a continuous period of 15 years he shall be paid a gratuity at the rate therein mentioned. The expression 'retirement ' has been defined in Rule 1 (g) to mean 'the termination of service by reason of any cause other than removal by discharge due to misconduct '. It is admitted that the plaintiff was a permanent uncovenanted employee of the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted. It is not suggested that he was removed by discharge due to misconduct. Unquestionably, therefore, the plaintiff retired from service because by the letter Annexure 'B ' dated August 26, 1959, the resignation tendered by the plaintiff as per his letter dated July, 27, 1959 was accepted and he was released from his service with effect from September 1,1959. The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent. The plaintiff has, within the meaning of the expression, thus retired from service of the respondent an he is qualified for payment of gratuity in terms of Rule 6. 333 Rule 7, in our opinion, has hardly any relevance because it enables the Company to pay gratuity by instalments. It is Rule 10 which is material for the purpose. It provides that payment of retiring gratuity under the Gratuity Rules, other than special gratuity to be paid under the provisions of Rule 22 which is not the case herein, shall be at the absolute discretion of the Company irrespective of whether an employee has or has not performed all or any of the conditions hereinafter stated, and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules. The stand taken by the respondent to deny gratuity to the plaintiff is that gratuity payable under the rules is a matter of employer 's largesse to be distribute at the absolute discretion of the Company and cannot be claimed as a matter of right even if the concerned employees has fulfilled the eligibility criteria. It is the interpretation of this Rule which would govern the outcome of this appeal. It may be mentioned that the High Court which ultimately upheld the contention of the respondent has specifically held that gratuity was an implied condition of service of the plaintiff in accordance with the relevant rules. The High Court reached this conclusion by first referring to Works Standing Orders framed by the Company which govern the conditions of service of the plaintiff. In other words according to the High Court, the service conditions of the plaintiff were governed by the Works Standing Orders. It is therefore necessary to determine the character of the Works Standing Orders Exh. C framed by the Company. This aspect was overlooked by the High Court with the consequence that the High Court found it difficult to enforce the claim of gratuity against the respondent by a decree of the court. What then is the character of the Works Standing Orders framed by the Company ? Are they mere unenforceable rules or are they statutory in character or have a statutory flavour ? If they are statutory in character and they form part of the contract of service of every employee governed by the same, then the question would be whether its breach can be repaired or enforced by a civil suit ? The Parliament enacted the ( '1946 Act ' for short). The long title of the Act provides that it was an act to require employers in industrial establishments formally to define conditions of employment under them. 334 The preamble of the Act provides that it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. By Section 3, a duty was cast on the employer governed by the Act to submit to the Certifying Officer draft standing orders proposed by him for adoption in his industrial establishment. After going through the procedure prescribed in the Act, the Certifying Officer has to certify the draft standing orders. Section 8 requires the Certifying Officer to keep a copy of standing orders as finally certified under the Act in a register to be maintained for the purpose. Sub sec. 2 of Section 13 imposes penalty on employer who does any act in contravention of the standing orders finally certified under the Act. The act was a legislative response to the laissez fairs rule of hire and fire at sweet will. It was an attempt at imposing a statutory contract of service between two parties unequal to negotiate, on the footing of equality. This was vividly noticed by this Court in Western India Mntch Company Ltd. vs Workmen as under : "In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workmen. Such a bargain they took it for granted, would, secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith. " The intendment underlying the Act and the provisions of the Act enacted to give effect to the intendment and the scheme of the Act leave no room for doubt that the Standing Orders certified under the 1946 Act become part of the statutory terms and conditions of service between the employer and his employee and they govern the relationship between the parties. Workmen of Messrs Firestone Tyre & Rubber Co. of India (P) Ltd. vs Management and Ors. Workmen in Buckinghan and Carnatic Mills Madras vs Buckingham and Carnatic Mills and M/s Glaxo Laboratories (l) 335 Ltd. vs The Presiding Officer, Labour Court, Meerut & Ors. The High Court recorded the finding that service conditions of the plaintiff were governed by the Works Standing Orders. No exception has been taken to this finding. It may at once be noted that the Works Standing Orders of the Company are Certified Standing Orders, under the 1946 Act evidenced by Certificate No. 45 dated March 18, provides that every uncovenanted employee of the Company shall retire from service on attaining the age of 60 years. This S.O. 54 is bodily incorporated in Rule 5 of the Gratuity Rules. Relying on S.O. 54 and the evidence recorded in the case, the High Court reached the conclusion that payment of gratuity was an implied condition of service of the plaintiff. Rule 6(a) provides that 'subject to the conditions prescribed in the rules, every permanent uncovenanted employee of the Company will be eligible for a retiring gratuity in the manner and to the extent for a retiring gratuity in the manner and to the extent mentioned therein. Retiring gratuity becomes payable on retirement, which means termination of service by reason of any cause other than removal by discharge due to misconduct. On a combined reading of S.O. 54 and the Rule 5 of the Gratuity Rules the High Court rightly concluded that payment of gratuity was a condition of service but somehow the High Court qualified it by saying that it was an implied condition of service. It is well settled by a catena of decisions, that Certified Standing Orders bind all those in employment at the time of service as well as those who are appointed thereafter. ' Agra Electricity Supply Co. Ltd. vs Sri Alladin & Ors. Now upon a combined reading of S.O. 54 along with Rule 5 and 6(a) of the Gratuity Rules, it becomes distinctly clear that payment of gratuity was an express or statutory condition of service and to this limited extent the finding of the High Court has to be modified. If payment of gratuity is thus shown to be a statutory or express condition of governing the relationship between the plaintiff and the company, it would be obligatory upon the company to pay the gratuity on retirement of the plaintiff. If the company declines or refuses to pay or discharge its statutory obligation, could the claim be enforced by a civil suit ? The High Court was of the opinion 336 that even though payment of gratuity was a condition of service in view of the provision contained in Rule 10, the same cannot be claimed as a matter of right or its recovery cannot be enforced by a civil suit. The High Court was constrained to observe that Rule 10 which confers absolute discretion on the Company to pay the gratuity at its sweet will is unconscionable and incompatible with the modern notions or conditions which ought to govern the relations between employer and that upon an industrial dispute being raised, the Industrial Tribunal may be in a position to award the gratuity as a matter or right even under the existing rules, but according to High Court, it cannot be enforced by a civil suit. In reaching this conclusion the High Court overlooked the effect of certified Standing Orders and the inter relation between the Retiring Gratuity Rules and S.O. 54. At this stage it would be appropriate to examine the effect of a breach of condition of service which is either statutory in character or has the statutory flavour. When under 1946 Act, an obligation is cast on the employer to specifically and precisely lay down the conditions of service, Sec. 13(2) subjects the employer to a penalty if any act is done in contravention of the Standing Orders certified under the Act. It would appear that such conditions of service prescribed in Standing Orders get incorporated in the contract of service of each employee with his employer. A facet of collective bargaining is that any settlement arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement. Similarly certified Standing Orders which statutorily prescribe the conditions of service shall be deemed to be incorporated in the contract of employment of each employee with his employer. As far as the incorporation of the results of collective bargaining into the individual contract of employment is concerned, the courts have in effect created a presumption of more or less systematic translation of the results of collective bargaining into individual contracts where these results are in practice operative and effective in controlling the terms on which employment takes place: (Labour Law Text and Materials by Paul Davies and Mark Freedland p. 233) O Kahn Freund describes collective bargaining as crystalised custom to be imported into contracts of employment on the same basis as trade custom (System of Industrial Relations in Great Britain p. 58 59). This would be all the more true of certified Standing Orders governing conditions of service between workman and his employer. If the employer commits a breach of the contract of employment, the same can be en 337 forced or remedied depending upon the relief sought by a civil suit. If contract for personal service is sought to be specifically enforced by a decree of civil court, the court will have to keep in view the provisions of Sec. 14 of the which provides that contract for personal service cannot be specifically enforced. We are not concerned with the exceptions to this rule such as the power of Industrial Tribunal to grant relief of reinstatement. We are concerned with the jurisdiction of civil court. The jurisdiction of civil court amongst others is determined by the nature of relief claimed. Now if the relief claimed is a money decree by enforcing statutory conditions of service, the civil court would certainly have jurisdiction to grant the relief. Plaintiff filed the suit alleging that he was entitled to payment of gratuity on completion of service for the period prescribed. He alleged it and the High Court accepted it as a condition of service. Its breach would give rise to a civil dispute and civil suit would be the only remedy. In the case of workman governed by the may provide an additional forum to recover monetary benefit. It is not suggested that plaintiff was a workman governed by the . The High Court was, therefore, in error in holding that the remedy was only by way of an industrial dispute and not by a civil suit. In reaching this conclusion, the Court High closed the door of justice to every employee though entitled to gratuity but would not be a workman within the meaning of the to recover the same, except where a prosecution can be successfully launched for an offence under Sec. 13(2) against the employer. One more difficulty the High Court experienced in the way of the plaintiff maintaining the suit and recovering the amount of gratuity was that under Rule 10 gratuity was payable at the absolute discretion of Company and cannot be claimed as a matter of right. Undoubtedly, Rule 10 confers discretion on the company to pay the gratuity even if the same is earned by satisfying the conditions subject to which gratuity becomes payable. Rule 10 provides that jail retiring gratuities granted under the rules shall be at the absolute discretion of the Company irrespective of whether an employee has or has not performed all or any of the conditions set out in the rules and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules. ' Such absolute discretion is wholly destructive of the character of gratuity as a retiral benefit. It is satisfactorily established and the High 338 Court has so ruled that payment of gratuity was a condition of service albeit implied condition of service which part does not stand scrutiny. 1946 Act was amended specifically in 1956 by Amending Act 36 of 1956 by which power was conferred upon the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. It is not clear whether the Rule 10 which appears to have been framed in the heyday of laissez faire has been recast, modified or amended to bring the same in conformity with the modern notions of social justice and Part IV of the Constitution. Assuming it is not done, the court while interpreting and enforcing the relevant rules will have to bear in mind the concept of gratuity. The fundamental principle underlying gratuity is that it is a retirement benefit for long service as provision for old age. Demands of social security and social justice made it necessary to provide for payment of gratuity. On the enactment of a statutory liability was cast on the employer to pay gratuity. Pension and gratuity coupled with contributory Provident Fund are well recognised retiral benefits. These retiral benefits are now governed by various statutes such as the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the . These statutes were legislative responses to the developing notions of fair and humane conditions of work, being the promise of of the Constitution. article 37 provides that the provisions contained in Part IV Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. " article 41 provides that 'the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. ' article 43 obligates the State to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure. . ' The State discharged its obligation by enacting these laws. But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutory adjudication acquired certain benefits, gratuity being one of them. Pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span 339 of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service. Can such social security measures be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service ? If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. In Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh wherein this Court observed that :" a Scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a period payment of a stated sum. " Undoubtedly both have to be earned by long and continuous service. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for local service rendered depending upon the sweet will or grace of the employer not claimable as a right and therefore, no right to pension can be enforced through court. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer. Deokinandan Prasad vs State of Bihar & Ors., State of Punjab & Anr. vs Iqbal Singh and D.S. Nakara & Ors. vs Union of India. If pension which is the retiral benefit as a measure of social security can be recovered 340 through civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par. The question then is: Can the court ignore Rule 10 ? If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment of gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Sec. 4 of the 1946 Act which confers power on the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any standing orders, this Court in appeal under article 136 shall have the power to do the same thing when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It therefore follows that part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not acquire any precedent but if one is needed the decision of this Court in Western India Match Company Ltd. case clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The Court observed that to uphold such special agreement would mean giving a go by to the principle of three party participation, in the settlement of the terms of employment, as represented by the certified Standing Orders and therefore, the inconsistent part of special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez faire days and utterly inconsistent with the modern notions of fair industrial relations and therefore, it must be rejected as ineffective and hence unenforceable. 341 Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti thesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of article 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co exist. Therefore, also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable. The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reserved. Accordingly, this appeal succeeds and will have to be allowed. The trial court decreed the plaintiff 's suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devaluation of the rupee. Further in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff or a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout. Accordingly, this appeal is allowed and the judgment and decree of the High Court are set aside and the decree of the trial court is restored with this modification that the interest shall be paid on the principal amount of Rs. 14,040 at 15% from 1.7.1959 till payment and full costs throughout be paid to the plaintiff. The costs plaintiff in this Court is quantified at Rs. 5,000. The payment shall be made within a period of two months from today. H.S.K. Appeal allowed. [/INST]The appellant who resigned from service of the respondent company after serving for over 29 years was not paid retiring gratuity by the respondent, even when the appellant had become eligible for it under the relevant gratuity rules styled as the Retiring Gratuity Rules, 1937 (Gratuity Rules for short). The appellant filed a suit in the Court of Subordinate Judge for recovering the amount of gratuity. The Subordinate Judge decreed the suit. The High Court allowed the appeal filed by the respondent. Hence this appeal. The respondents submitted; (1) that since the appellant did not retire from the service but left the service by resigning the post, he was not eligible for gratuity under Rule 6 of the Retiring Gratuity Rules, 1937; (2) that under Rule 10 the retiring gratuity was payable at the absolute discretion of the respondent and could not be claimed as a matter of right by the appellant even if he had become eligible for it; and (3) that claim to gratuity could not be enforced in the civil court. Allowing the appeal ^ HELD: Rule 6(a) which prescribed the eligibility criterion for payment of retiring gratuity provides, inter alia, that every permanent uncovenanted employee of the Company, will be eligible for retiring gratuity. The expression `retirement ' has been defined in Rule 1(g) to mean `the termination of service by reason of any cause other then removal by discharge due to misconduct '. It is admitted that the appellant was a permanent uncovenanted employee of 326 the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted. It is not suggested that he was removed by discharge due to misconduct. Unquestionably. therefore, the appellant has within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6. [ 332D F] According to the High Court, the service conditions of the appellant were. governed by the Works Standing orders of the respondent. No exception has been taken to this finding. These Works Standing orders were framed and certified under the Industrial Employment (Standing orders) Act, 1946. The Act was a legislative response to the laissez faire rule of hire and fire at sweet will. It was an attempt at imposing statutory contract of service between two parties unequal to negotiate, On the footing of equality. The intendment underlying the Act and the provisions of the Act enacted to give effect to the intendment and the scheme of the Act leave no room for doubt that Standing orders certified under the Act become part of the statutory terms and conditions of service between the employer and his employee and they govern the relationship between the parties.[333E 334G] Western India Match Company Ltd. vs Workman; [1974] I SCR 434. Work man of Messrs Firestone Tyre & Rubber Co of India (P) Ltd. vs Management and ors; ; at 612. Workman in Buckingham and carnatic Mills Madras vs the presiding Officer, labour Court, Meerut & Ors; [1984] 1 SCC 1. Agra Electricity Supply co. Ltd. vs Sri Alladin & Ors;[1970] 1 SCR 806, referred to Upon a combined reading of Standing order (S.O) 54 along with Rule 5 and 6(a) of the Gratuity Rules, it becomes distinctly clear that payment of gratuity was an express or statutory conditions of service governing the relationship between the appellant and the respondent. Therefore, it would be obligation upon the respondent to pay gratuity on retirement to the appellant. If the respondent refuses to pay or discharge its statutory obligation, the claim can be enforce by a civil suit. The High Court was of the opinion that in view of Rule 1 of the Gratuity Rules, recovery of gratuity cannot be enforced by a civil suit. But upon an Industrial dispute being raised, the Industrial Tribunal may be in a position to award the gratuity as a matter or right even under the existing rules. In reaching this conclusion the High Court overlooked the effect of the certified Standing orders and the inter relation between the Gratuity Rules and S.O 54, When under 1946 Act, an obligation is cast on the employer to specifically and precisely lay down the conditions of service, Sec. 13(2) subjects the employer to a penalty if any act is done in contravention of the Standing orders certified under the. A face of collective bargaining is that any settlement. arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement. Similarly, certified standing Orders which statutorily prescribe the conditions of service shall be deemed to be incorporated in the contract of employment of each employee with his employer. If the employer commits a breach of the contract of employment the same can be enforced or remedied depending upon the 327 relief sought by a civil suit. The jurisdiction of civil court amongst others is determined by the nature of relief claimed. If the relief claimed is a money decree by enforcing statutory conditions of service, the civil court would certainly have jurisdiction to grant the relief. [335F 337B] Labour Law Text and Materials by Paul Davies and Mark Freedland p 233 and system of Industrial Relations in Great B itain p. 58 59, referred to. In the instant case, the appellant filed the suit alleging that he was entitled to payment of gratuity on completion of service for the period prescribed. He alleged it and the High Court accepted it as a condition of service. Its breach would give rise to a civil dispute and civil suit would be the only remedy. In the case of workmen governed by the may provide an additional forum to recover monetary benefit. It is not suggested that appellant was a workman governed by the . The High Court was, therefore, in error in holding that the remedy was only by way of an industrial dispute and not by a civil suit. [337C D] The Court while interpreting and enforcing the relevant gratuity rules will have to bear in mind the concept of gratuity. The fundamental principle under lying gratuity is that it is a retirement benefit for long service as a provision for old age. Demands of social security and social justice made it necessary to provide for payment of gratuity. On the enactment of the a statutory liability was cast on the employer to pay gratuity. Pension and gratuity which have much in common are well recognised retiral benefits as measures of social security. It is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor it can be denied at the sweet will or fancy of the employer. If pension can be recovered through civil suit, there is no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par [339G H; 340A] Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh; , Deokinandan Prasad vs State of Bihar & Ors. ,[1971] Supp SCR 634, State of Punjab & Anr. vs Iqbal Singh, ; , D.S. Nakara & Ors vs Union of India; , ; referred to. If the rules for payment of gratuity become incorporated in the Standing orders and thereby acquired the status of the statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be, rejected as arbitrary. Sec. 4 of the 1946 Act which confers power on the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions would enable this Court to reject that part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion, as utterly unreasonable, ineffective and unenforceable. That part of Rule 10 must, therefore, be treated as ineffective and un enforceable. [340C D] 328 The claim to absolute discretion not to pay gratuity even when it is earned is a hang over of the laissez faire days and utterly inconsistent with the modern notion of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable. [340H] Western India Match Company Ltd. vs Workmen, ; referred to. Our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti thesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of article 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co exist. Therefore also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable. [341A C] </s>

<s>[INST] Summarize the judgementthority has made a huge profit by levy of surcharge is without merits. On the contrary it appears that the overall working of the Authority is deficit ridden. [723 A B] & ORIGINAL JURISDICTION: Writ Petitions Nos.4660/78 & 562/79 (Under Article 32 of the Constitution). Y. section Chitale and R. B. Datar for the Petitioner in W.P. No. 4660/78. L. M. Singhvi, Sardar Bahadur Sahariya, Vishnu Bahadur Sahariya and L. K. Pandey for the Respondent No. 1 in both the Writ Petitions. F. section Nariman and B. Datta and K. K. Manchanda for the Petitioner in W.P. No. 562/79. The Judgment of the Court was delivered by DESAI, J. Allottees of flats, constructed by the Delhi Development Authority ( 'Authority ' for short), located at Rajouri, Garden, 708 Prasad Nagar and Lawrence Road comprised in Middle Income Group scheme, question the decision of first respondent (Delhi Development Authority) to collect surcharge as part of the sale price of each flat from each of them as unauthorized and discriminatory i character, in there two petitions under Article 32 of tho Constitution. Both the petitions raise identical contentions and i was said that Writ Petition No. 562 of 1979 is more comprehensive in character and, therefore, the facts alleged therein may be taken as representative character. They may be briefly stated. Delhi Development Authority was set up under the Delhi Development Act, 1957. The Act was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto and for carrying out the objects underlying the Act, the Authority has prepared Master and Zonal development plans for Delhi. With a view to easing the acute housing problems in the capital city the Authority undertakes construction of dwelling units for people belonging to different income groups styled as Middle Income Group ( 'MIG ' for short), Low Income Group ( 'LIG ' for short), Janta and Community Personnel Service ( 'CPS ' for short). In 1971 the Authority commenced registration of intending applicants desirous of having n dwelling unit in different income groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and conditions laid down by it and made the initial deposits as required by the terms and conditions. Petitioners had applied and got themselves registered for allotment of flats in MIG scheme situated at Lawrence Road. As the number of available flats in this scheme were less than the number of allottees registered, lots were drawn and the petitioners were informed that they have been allotted flats and that each of them should deposit the amount mentioned in the letter of allotment. It appears that the petitioners paid the amount they were called upon to pay and a flat was allotted to each of them and they have entered into possession. Petitioners now contend that the Authority being a statutory body formed with an object of working on 'no profit no loss ' basis and having prescribed a formula for working out the cost price of flats has levied and collected a surcharge from each of the petitioner. According to the petitioners the cost price worked out in accordance with the formula prescribed by the Authority cost of each flat would be between Rs. 51,800 and Rs. 55,600 depending upon the area, extra balcony etc. However, each one of them had to pay between Rs. 56,000 to Rs. 60,000 and that according to the petitioners a surcharge varying from Rs. 3,400 to Rs. 6,000 for a flat has been illegally and unlawfully collected by way of premium or profit. It is further alleged that the 709 Authority has not levied and collected such surcharge from other A allottees of flats in some other MIG Schemes and that this action of levying and collecting surcharge is violative of article 14 inasmuch as persons belonging to the same class, namely, allottees of flats in MIG Scheme have been unequally treated. It is also alleged that there was no valid or understandable justification of levying and collecting surcharge as price of flats comprised in MIG Schemes, between 1976 and 1977, and that from May 10, 1978, this unauthorised surcharge has been abolished. Petitioners also contend that the assertion of the Authority that this surcharge was levied and collected with a view to financing housing projects for lower income groups, Janta and CPS dwelling units so as to provide these weaker sections of the society, houses at a price lower than cost price with a view to making them affordable by such members of the weaker sections of the society, is belied by facts undisputed and that the whole attempt of the Authority, in violation of its avowed policy, was to make profit by levying such illegal surcharge. The petitioners, therefore, prayed for issue of a writ or order or direction declaring the levy of surcharge as illegal and unconstitutional and for a direction for refund thereof together with the interest at the rate of 12% per annum from the date of levy and collection till the date of refund. In the cognate petition the petitioners are allottees of flats situated at Prasad Nagar and Rajouri Garden under MIG scheme and they complain that in their case surcharge varies from Rs. 19,200 to 22,600. Respondents to the petition are Delhi Development Authority, No. 1 and Chairman and Vice Chairman of the Authoring, Nos. 2 and 3 respectively. In Writ Petition No. 4660/78 the Authority is respondent 1 and Union of India, respondent 2. Petitions were mainly contested by and on behalf of the Authority. The Delhi Development Act, 1957 ( 'Act ' for short), was enacted as its long title shows with the a view to providing for the development of Delhi according to the plan and for arresting haphazard growth and for matters ancillary thereto. It envisages the setting up of an Authority to be styled as Delhi Development Authority which would be a body corporate by the name aforesaid having perpetual succession and a common seal with power 'o acquire, hold and dispose of property, both movable and immovable, and to contract and shall by the said name, sue and be sued. The composition of the Authority is set out in sub section (iii) of section 3. Amongst others, Administrator of Union Territory of Delhi would be an ex officio Chairman and a Vice Chairman to be appointed by the Central Government. The 710 Vice Chairman may be either a whole time or part time officer as the Central Government may think fit. Section S contemplates the constitution of an Advisory Council for the purpose of advising, the Authority on the preparation of the master plan and on such matters relating to the planning of development or arising out of or in connection with the administration of the Act. Section 5A which was added by amending Act 56 of 1963 confers power on the Authority to constitute as many committees consisting wholly of members or wholly of other persons or partly of members and partly of other persons and for such purpose or purposes as it may think fit. Chapter Ill A which was inserted by the Amending Act of 1963 confers power for modification of the master plain once prepared. Chapter IV provides for development of lands. Chapter V confers power on the Central Government to acquire land for the purposes of development or for any other purpose under the Act under the provisions to the Land Acquisition Act, 1894, and further authorises the Central Government to transfer the land so acquired to he Authority. Chapter VI provides for finances and audit of the accounts of the Authority Chapter VII provides for supplemental and miscellaneous provisions. Section 52 confers power on the Authority to delegate any power exercisable by it under the Act, except the power to make regulations, on such officer or local authority or committee constitued under section 5A as may be mentioned, by a notification to be published in the Official Gazette in such cases and subject to such conditions, if any, as may be specified therein. One more section of which notice should be taken is section 57 which confers power on the Authority with the previous approval of the Central Government by notification in the official Gazette to make regulations consistent; with the Act and the rules made thereunder to carry out the purposes of this Act. Sub section provides that until the Authority is established under the Act any regulation which may be made under sub section may be made by the Central Government and any regulation so made may be altered or rescinded by the Authority in exercise of its powers under sub section Section 58 makes it obligatory to lay every rule and regulation made under this Act before each House of Parliament in session for a period of 30 days and subject to any alteration or modification therein the rule or regulation shall after expiry of the prescribed period mentioned have effect only in such modified form or be of no effect as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule or regulation. Petitioners belong to MIG, each of whom registered himself as an intending applicant for a flat in MIG scheme and each of whom has 711 been allotted a flat either in Rajouri Garden, Prasad Nagar or Lawrence Road. Number of persons desirous of having a flat registered with the Authority far outnumbered the available flats with the result that lots had to be drawn and the lucky ones got a letter of allotment to pay the price set out in the brochure in respect of each scheme and to obtain a flat. Each petitioner had paid the price and has entered into possession of the allotted flat. All the petitioners now contend that the Authority has levied and collected a surcharge as part o: purchase price of flat arbitrarily and without the authority of law and has collected the same from them in violation of its object of functioning on 'no profit no loss ' basis and thereby made a huge profit. They further contend that they have been subjected to discriminatory treatment in contravention of article 14 of the Constitution inasmuch as no surcharge has been collected from allottees of flats in MIG schemes prior to November 1976 and subsequent to January 1977 except these three schemes and one Wazirpur MIG scheme. Further, no other MIG scheme flats have been subjected to such unauthorised levy of surcharge. It is pointed out that the levy of surcharge has been scrapped in 1978. The petitioners contend that levy of surcharge has no nexus to the object for which the Authority was set up namely, providing housing accommodation at reasonable price by the Authority whose declared policy is 'no profit no loss '. It was said on behalf of the petitioners that even if the Authority was set up for providing housing accommodation to the people in different income groups (keeping in view their financial capacity/affordability) yet a statutory body like the Authority operating on 'no profit no, loss ' basis must have a scientifically prescribed formula for working out its price structure and that must be uniformly applied to all those who apply for flats and to whom they are allotted and such a statutory Authority cannot discriminate in working out the disposal price of the flats by including surcharge in respect of some MIG schemes within a certain specified period, a surcharge not authorised by law and not sanctioned by the Authority as a component of price and unknown to pricing of flats, while others similarly situated and similarly circumstanced and belonging to the same income group enjoyed the benefit cf getting flats at cost price and, therefore, petitioners have been accorded discriminatory treatment in the matter of price of flats allotted to them. Petitioners, therefore, contend that even if they applied for flats anc got registered and were offered flats and accepted the same at the price stated in the brochure and even if it has resulted in a concluded contract yet the Court should not turn a blind eye to such gross discrimination by a statutory authority charged with a duty to provide housing accommodation acting on the declared policy of 'no profit no 712 loss '. It was simultaneously contended that the Vice Chairman of the Authority authorised to determine the prices of flats in each income group has not made any order or has not given any direction for levy of surcharge and that the levy of surcharge was wholly unauthorised. A preliminary objection was raised by the Authority that the petitions are not maintainable under article 32 of the Constitution inasmuch as The petitioners have not come to the Court for enforcement of a t fundamental right conferred upon the petitioners under Part III of the Constitution but the petitioners have invoked jurisdiction of this Court for a relief of re opening concluded contracts. It was also submitted that if the Court accepts the contention of the petitioners they would derive an unfair advantage over others who may not have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for flats at a lower price and, there fore, also the Court should not entertain the petitions. Though we are not inclined to reject the petitions on this preliminary objection as we have heard them on merits it is undeniable that camouflage of article 14 cannot conceal the real purpose motivating these petitions, namely, to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained and petition to this Court under article 32 is not a proper remedy nor is this Court a proper forum for re opening the concluded contracts with a view to getting back a part of the purchase price paid and the benefit taken. The undisputed facts are that petitioners offered themselves for registration for allotment of flats that may be constructed by the, Authority for MIG scheme. After the registration and when the flats were constructed and ready for occupation brochures were issued by the Authority. One such brochure for ', allotment of MIG flats in Lawrence Road residential scheme is Annexure R 1. This brochure specifies the terms and conditions including price on which flat will be offered. It also reserved the right to surrender or cancel the registration, the mode and method of paying the price and handing over the possession. There is an application form annexed to the brochure. Annexure 'A ' to the brochure sets out the price of flat on the ground floor, first floor and second floor respectively. It sets out the premium amount payable for land as also the total cost in respect of the flats on the ground floor, first floor and second floor. The statement also shows the earnest money deposited at the time of the registration and the balance payable. It is on the basis of these brochures that the applicants applied for the flats in Lawrence Road and other MIG schemes. They knew and are presumed to know the contents of the brochure and particularly the price 713 payable. They offered to purchase the flats at the price on which the Authority offered to sell the same. After the lots were drawn and they were lucky enough to be found eligible for allotment of flats, each one of them paid the price set out in the brochure and took possession of the flat, and thus sale became complete. There is no suggestion that there was a mis statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the Authority on the strength of which they applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory control. Price of property is in the realm of contract between a seller and buyer. There is no obligation on the purchaser to purchase the flat at the price offered. Even afar registration the registered applicants may opt for other schemes. His light to enter into other scheme opting out of present offer is not thereby jeopardised or negatived and applicants so outnumbered the available flats that lots had to be drawn. With this background the petitioners now contend that the Authority has collected surcharge as component of price which the Authority was not authorised or entitled to collect. Even if there may be any merit in this contention, though there is none, such a relief of refund cannot be the subject matter of a petition under article 32. And article 14 cannot camouflage the real bone of contention. Conceding for this submission that the Authority has the trappings of a State or would be comprehended in 'other authority ' for the purpose of article 12, while determining price of flats constructed by it, it acts purely in its executive capacity and "is bound by the obligations which dealings of the State with the individual citizens import into every transacting entered into the exercise of its constitutional powers But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract" (see Radhakrishna Agarwal & Ors.vs State of Bihar & Ors.) Petitioners were under no obligation to seek allotment of flats even after they had registered themselves. They looked at the price and flats and applied for the flats. This they did voluntarily. They were advised by the brochures to look at the flats before going 714 in for the same. They were lucky enough to get allotment when the lots were drawn. Each one of them was allotted a flat and he paid the price voluntarily. They are now trying to wriggle out by an invidious method so as to get back a part of the purchase price not offering to return the benefit under the contract, namely, surrender of flat. I The Authority in its affidavit in reply in terms stated that it is willing to take back the fiats and to repay them the full price. The transaction is complete, viz., possession of the flat is taken and price is paid. At a later stage when they are secure in possession with title, petitioners are trying to get back a part of the purchase price and thus trying to re open and wriggle out of a concluded contract only partially. In a similar and identical situation a Constitution Bench of this Court in Har Shankar & ors.vs The Dy.Excise & Taxation Commr.& ors.has observed that those who contract with open eyes must accept the burdens of the contract along with its benefits. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract would ever have a binding force. The jurisdiction of this Court under article 32 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It would thus appear that petitions ought not to have been entertained. However, as the petitions were heard on merits, the contentions canvassed on behalf of the petitioners may as well be examined The principal contention canvassed on behalf of the petitioners is that the treatment meted to them by the Authority is discriminatory inasmuch as no surcharge was levied on flats in MIG scheme constructed and allotted prior to November 1976 and after January 1977. MIG flats involved in these petitions were constructed and were available for allotment in November 1976 and the lots were drawn in January 1977. There is one more MIG scheme at Munirka where the allotment took place at or about the same time but in which case no surcharge was levied. The contention is that once for the purpose of eligibility to acquire a flat, the criterion is grounded in income brackets, MIG, LIG, et . those in the same income bracket form one class even for the purpose of determining disposal price of flat allotable to them irrespective of situation, location or other relevant determinants which enter into price calculation and therefore, in the same income group there cannot be differentiation by levying of surcharge in some cases and charging only the cost price in other cases and that the discrimination is thus writ large on the face of the record 715 because by levying surcharge in case of petitioners they have been treated unequally and with an evil eye. It is difficult to appreciate how article 14 can be attracted in the circumstances hereinabove mentioned. Cost price of a property offered for sale is determined according to the volition of the owner who has constructed the property unless it is shown that he is under any statutory obligation to determine cost price according to certain statutory formula. Except the submission that the Authority has a proclaimed policy of constructing and offering flats on 'no profit no loss ' basis which according to Mr. Nariman has a statutory flavour in the regulations enacted under the Act, the Authority is under no statutory obligation about its pricing policy of the flats constructed by it. When the flats were offered to the petitioners the price in round figure in respect of each flat was mentioned and surcharge was not separately set out and this price has been accepted by the petitioners. The obligation that regulations are binding on the Authority and have provided for a statutory price fixation formula on 'no profit no loss ' basis will be presently examined but save this the Authority is under no obligation to fix price of different flats in differed schemes albeit in the same income group at the same level or by any particular statutory or binding formula. The Authority having the trappings of a State might be covered by the expression 'other authority ' in article 12 and would certainly be precluded from according discriminatory treatment to persons offering to purchase flats in the same scheme. Those who opt to take flats in a particular income wise area wise scheme in which all flats came up together as one project, may form a class and any discriminatory treatment in the same class may attract article 14. But to say that throughout its course of existence the Authority would be bound to offer flats income groupwise according to the same price formula is to expect the Authority to ignore time, situation, location and other relevant factors which all enter the price structure. In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination; Court can certainly not be expected to decide without ' the assistance of the experts (See Prag Ice & oil Mills and Anr.vs Union of India) In the leading judgment it has been observed that mechanics of price fixation have necessarily to be left to the executive and unless it is patent that there is hostile discrimination against a class the processual basis of price fixation has to be accepted in the generality of cases as valid. 716 This Court in Avinder Singh vs State of Punjab,(l) approved the following dictum of Willis on Constitutional Law, page 587: "The State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably . The Supreme Court has been practical and has permitted a very wide latitude in classification for taxation. What is forbidden by article 14 is discrimination amongst persons of the same class and for the purposes of allotment of flats scheme wise, allottees of flats in the same scheme, not different schemes in the same income bracket, will have to be treated as a class and unless in each such class there is unequal treatment or unreasonable or arbitrary treatment, the complaint that article 14 is violated cannot be entertained. Therefore, in the State of Gujarat & Another vs Shri Ambica Mills Ltd., Ahmedabad, etc., Mathew, J., speaking for the Court observed as under: "A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is what does the phrase 'similarly situated ' mean ? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good." " Is the classification income wise scheme wise violative of article 14 in any manner ? The Authority formulates income wise area wise schemes for constructing flats. Petitioners contend that there should be only income wise classification wholly ignoring area and time factor for classification. They say that allottees of flats in all MIG schemes irrespective of area and location and irrespective of when the flats were constructed form one class for determining price of flats. There is no merit in this contenting. What are price determinants ? Price of land, building material, labour charges and cost of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their cost varies time wise, place wise, availability wise. All these uncertain factors cannot 717 be overlooked for the purpose of classification. Therefore, it is not possible to hold that allottees of flats in MIG scheme at any place and executed at any time will form one class for the purpose of pricing policy only valid basis for classification would be income wise, area wise, time wise, scheme wise, meaning all flats constructed at or about the same time in same area in one project for particular income group will form a class. And there is no discrimination amongst them. Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable price to persons belonging to different income groups it would not be precluded from devising its own price formula for different income groups. If in so doing it uniformally collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the Authority undertaking a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply or can afford it on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract article 14. People in, the MIG can be charged more than the actual cost price so as to give benefit to allottees of flats in LIG, Janata and CPS. And yet record shows that those better off got flats comparatively cheaper to such flats in open market. It is a well recognised policy underlying tax law that the State has wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a violation of article 14, (see East India Tobacco Co. vs State of Andhra Pradesh). Can it be said that classification, income wise cum scheme wise is unreasonable ? The answer is a firm No. Even the petitioners could not point out unequal treatment in same class. However, a feeble attempt was made to urge that allottees of flats in MIG scheme at Munirka which project came up at or about the same time were not subjected to surcharge. This will be presently examined but aside from that, contention is that why within a particular period, namely, November 1976 to January 1977 the policy of levying surcharge was resorted to and t hat in MIG schemes pertaining to period prior to November 1976 and later April 1977 no surcharge was levied. 718 If a certain pricing policy was adopted for a certain period and was uniformly applied to projects coming up during that period, it cannot be the foundation for a submission why such policy was not adopted earlier or abandoned later. It was, however, said that levying of surcharge runs counter to object for which the Authority was set up, namely, to make available housing accommodation on 'no profit no loss ' basis. The argument proceeds on the assumption that the principle of 'no profit no loss ' implies that in respect of each flat the cost of its construction must be worked out and that alone can be the disposal price of each flat. Principle of 'no profit no loss ' has been explained by the respondents. It IS said that in the over all working, planning and execution of projects which the Authority undertakes as part of development of Delhi, the integral part of it being construction of flats for different income groups the motives and working of it would not be profit oriented but would work on 'no profit no loss ' economic doctrine. This would not for a moment suggest that the principle of 'no profit no loss ' should apply either to every flat or to every scheme or to every piece of land developed by the Authority. It would be impossible for the Authority to function on such fragmented basis and such a policy statement has not been made by the Authority. Of course, some public statement appears to have been made that the overall working of the Authority is on "no profit no loss ' basis. Respondent 1 has been able to point out that the Authority 's housing scheme, as a whole has been running in a heavy deficit because flats including such as those of the petitioners actually cost much more than the initially determined estimates and by the time flats are ready for occupation initial estimates founded on prevalent market prices of materials and labour escalate and revised estimates have to be made. It is also shown that till Municipal authority takes over municipal services the Authority spends for the same and incurs cost. Apart from that petitioners have not been able to show that the Authority is actuated by commercial profit oriented approach in its overall working. It is, however, necessary to examine the contention whether this 'no profit no loss ' policy statement has any statutory flavour as contended by Mr Nariman. The regulations styled as the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1968, ( 'Regulations ' for short) are framed in exercise of the powers conferred by section 57 and were laid before the Houses of Parliament as required by section 58. Disposal price has been defined in Regulation 2(13) to mean in relation to a property such price as may be fixed by the Authority for such property. There is not the slightest or even a remote reference to 'no profit no loss ' formula for 719 determining the cost price. A quick survey of the Regulations do A not spell out any formula for price determination on the basis of 'no profit no loss '. Whether the power to determine disposal price is in the Housing Committee will be presently examined. Regulations, however, on the contrary indicate that the power to determine the disposal price is vested in the Authority and as price has been fixed by the delegate of the Authority even if it is inclusive of surcharge it cannot be said that it runs counter to the declared policy of the Authority. It is at this stage necessary to examine the contention that in the case of Wazirpur and Munirka LIG schemes which came up during this very period no surcharge was levied and, therefore, there is invidious discrimination amongst members of the same class. Again the argument proceeds that income wise classification alone is valid. Here time wise (November 1976 to January 1977) classification is relied upon. It is an admitted position that no surcharge is levied on MIG flats at Munirka. The affidavit in reply shows that the land on which flats are constructed in Munirka MIG scheme turned out to be very rocky with the result that the construction cost in respect of flats at Munirka MIG scheme worked out at Rs. 456 per plinth area per metre whereas in respect of Lawrence Road it came to Rs. 401.54 p. Only. The Authority, therefore, thought that if surcharge is levied on flats under MIG scheme in Munirka area the disposal price would be very high and would be beyond the reach of MIG. It is in this background of the special facts that 'no surcharge was levied in respect of any flat in MIG in Munirka area. Project wise price fixation cannot be dubbed as arbitrary or discriminatory in comparison with other projects at different places. It was, however, pointed out that 132 flats in Rajouri Garden MIG scheme were disposed of without levying surcharge as component of sale price. It is pointed out in affidavit in reply that those flats were handed over to the Government of India for meeting their needs for staff quarters and that was done in the year 1978. It is also pointed out that the Government charged half the price of the land in respect of these 132 flats and, therefore, surcharge was not levied. There is two fold fallacy in this submission. Government ordinarily is in a class by itself and its needs of staff quarters deserve to be met in large public interest. Government has not got any undeserved benefit at the cost and risk of petitioners. Hence their complaint in this behalf is without merits. It was next contended that surcharge is arbitrary inasmuch as how the surcharge is worked out in each case does not answer any 720 rational, tangible, scientific cr understandable formula. How the figure of surcharge has been worked out has been explained in detail in affidavit in reply. Briefly recapitulating the same, it may be mentioned that initial estimates for 304 MIG flats in Prasad Nagar area were prepared in or about 1971 and the estimated cost was Rs. 1,17,83,200 and that on March 21, 1972, an estimate of Rs 1,09,97,100 was sanctioned. After the work commenced and the actual cost started coming in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000 which was approved by the Vice Chairman on September 18, 1976. According to the revised estimate the approximate disposal cost for each flat came to Rs. 68,202 and the cost of land per dwelling unit was Rs. 7,008. Extracts of original notes of Financial Adviser (Housing) and the approval of the same by the Vice Chairman have been set out in the affidavit in reply. The subsequent revised estimates show that disposal price of each flat would be Rs. 75,200. In the meantime the Income Tax Department wanted to acquire 40 MIG flats in Prasad Nagar area and the same were offered at the price of Rs. 75,000, per flat. Commissioner of Income Tax accepted the price. This became the starting point for working out the disposal price in that period. The difference between the cost price and the disposal price of Rs. 75,000 per flat was treated as surcharge and the purpose was to use the extra money for extending cost reduction benefit to the allottees of flats in LIG, Janata and CPS schemes. Affidavit in reply of the Secretary of Respondent 1 provides further information which show that the cost price would be Rs. 78,000. Therefore, at best the component of surcharge would be between Rs. 1700 to Rs. 2200 in Rajouri Garden MIG flats. Similarly, with regard to MIG flats at Lawrence Road the actual cost price would be in close proximity of the disposal price would be in close proximity of the disposal price charged from the petitioners. It is, therefore, difficult to entertain the contention that even if surcharge could be justified its actual computation is arbitrary and irrational. The next contention is that Vice Chairman had no authority to levy surcharge and that even if he has authorised the same it runs counter to the principle of fixing disposal price incorporated in Resolution No. 209 dated November 26, 1974. The Vice Chairman is to be appointed by the Central Government as per section 3(3)(b) of the Act. It appears that this Vice Chairman is whole time officer and will be the Chief Executive of the Authority. This becomes clear from regulation 3 of the Regulations which provides as under: "3.These regulations shall be administered by the Vice Chairman, subject to general guidance and resolutions of the 721 Authority, who may delegate his powers to any officer of the Authority". Thus the Vice Chairman, subject to general guidance and resolutions cf the Authority, shall administer the regulations. He can delegate the functions to any officer of the Authority. Regulation 59 is important which reads as under: "59.The Authority may delegate all or any of its powers under these regulations to the Vice Chairman or to a whole time member". Armed with this power of delegation the Authority adopted Resolution No. 60 dated February 21, 1970 which reads as under: "Resolved that the recommendations of the Committee be approved and all the powers of Delhi Development Authority be exercised by the Housing Committee and the Chairman, Delhi Development Authority be authorised to constitute the said committee, determine the organisational set up and take (sic) all efforts for implementing the housing and allied schemes". Serious exception was taken to this gross abdication of its powers and functions by the Authority. The composition of the Authority as set out in section 3 would include such persons as Finance and Accounts Member, Engineering Member, representatives of Municipal Corporations of Delhi and representatives of Metropolitan Council as and when set up. Three other persons were to be nominated by Central Government of whom one shall be person with experience of planning. It is a high power body. Yet it completely abdicated its power and authority in favour of Housing Committee. The Housing Committee will practically supplant the Authority. But the more objectionable part of Resolution No. 60 is that such Housing Committee which is to enjoy all powers and functions of the Authority was to be constituted by the Chairman at his sole discretion because he was authorised not only to constitute the Housing Committee but to determine organisational set up and then make all efforts for implementing the housing and allied schemes. It is really difficult to appreciate such whole sale abdication or delegation of powers by a statutory authority in favour of a Committee whose composition would be determined by one man, the Chairman. By a process of elimination the Housing Committee could supplant the Authority and the Chairman could constitute Housing Committee. Therefore, the Chairman enjoyed 722 a very wide discretionary power. Though Mr. Nariman did challenge the validity of Resolution No. 60, Mr. Chitaley in cognate petition refrained from doing so. Once the power to delegate is given by the Regulations the challenge to validity on the ground of delegation must fail It is, however, necessary to examine the submission whether Vice Chairman could have permitted levy of surcharge as a component of the price of flats in MIG schemes. In this connection it would be advantageous to refer to Resolution No. 20 dated June 18, 1968. Of the Authority by which the recommendations of the Standing Committee, inter alia, empowering the Vice Chairman to approve forms of application as well as to fix the disposal and hire purchase price were accepted. Resolution No. 209 is the one adopted by the Housing Committee. It takes note of the delegation of powers to fix disposal and hire purchase price of flats to the Vice Chairman and further provides that if there is a marginal saving in any scheme the amount is always diverted to subsidies cost of Janata and CPS houses. It seems the Resolution is for information of the Housing Committee and the Housing Committee has merely resolved that the information be noted. The Resolution No. 200 of the Authority with Resolution No. 209 of the Housing Committee sets out clearly that the power to fix the disposal price was delegated to the Vice Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions contained in Regulation 3 read with section 59 clearly envisages such delegation of powers. It is, therefore, idle to contend that the Vice Chairman had no authority to levy the surcharge as component of disposal price of flats. It was next contended that even if Vice Chairman had such power there is nothing to show that he has exercised this power and that, therefore, somewhere without any authority someone has added the surcharge to the disposal price and that, therefore, the levy of surcharge is unauthorised. The submission seems to be factually incorrect. The note of Accounts officer (Housing) dated September 8, 1976, submitted to the Financial Advisor (Housing) shows that the flats have been offered at the rate of Rs. 75,000 to the Commissioner of Income Tax for the Income Tax Department and that should be the disposal price This note was approved by the Financial Advisor (Housing) and ultimately countersigned by the Vice Chairman. There fore, the price of Rs. 75,000 as the disposal price is approved by the Vice Chairman. Even if it includes surcharge it cannot be said with confidence that the Vice Chairman has not approved the surcharge as a component of disposal price. 723 The last contention is that the Authority has made a huge profit by levy of surcharge. In this connection statistical table was annexed to the petition and there was serious controversy about the facts and figures set out therein, by the other side. Having gone through the detailed affidavit in reply it transpires that the contention is without merits. Therefore, there is no substance in the contention that the Authority has made a huge profit. On the contrary it appears that the overall working of the Authority is deficit ridden. These were all the contentions in these petitions and as there is no Merit in any of them the petitions are dismissed. There will be no order as to cost. N.K.A Petitions dismissed. [/INST]The Delhi Development Authority Act was enacted to provide for the development of Delhi through Master and Zonal Plans. The authority undertakes constructions of dwelling units for people belonging to different income groups styled as Middle Income, Low Income, Janata and Community Personnel Service. In 1971, the authority commenced registration of intending applicants desirous of having dwelling units in different Income Groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and conditions laid down by it, for allotment of flats in deposits as required by the terms and conditions for MIG Scheme at Lawrence Road, Prasad Nagar and Rajouri Garden and made the initial deposit. The number of available flats being less in each scheme compared to the number of applicants registered, lots were drawn and the petitioners were informed that each of them should deposit the amount mentioned in the letter of allotment. The Petitioners paid the amount as intimated and consequently a flat was allotted to each of them and they entered into possession. In their writ petitions under Article 32, the petitioners assailed the levy and collection of surcharge in addition to the cost price of the flats. It was con tended on their behalf that; (i) The treatment meted by the Authority is discriminatory inasmuch as no surcharge was levied on flats in MIG schemes constructed and allotted prior to November, 1976 and after January, 1977; (ii) As the authority formulates income wise, area wise schemes for constructing flats, there should be only income wise classification wholly ignoring area and time factor for classification; (iii) Levying of surcharge runs counter to the object for which the authority was set up namely to make available housing accommodation on "no profit no loss" basis; (iv) Surcharge is arbitrary inasmuch as how the surcharge is worked out in each case does not conform to any rational, tangible, scientific or understandable formula; (v) The Vice Chairman had no authority to levy surcharge and that even if he has authorised the same, it runs counter to the principle of fixing disposal price incorporated in resolution No. 209 dated November 26, 1974; (vi) Even if the Vice Chairman had such power there is nothing to show that he has exercised this power and given direction for adding the surcharge to the disposal price and that therefore, the levy of surcharge is unauthorised; and (vii) that the authority has made a, huge profit by levy of surcharge. The respondents raised a preliminary objection that the petitions were not maintainable under Article 32 of the Constitution inasmuch as the petitioners have not come to the Court. fol enforcement of a fundamental right conferred upon. 705 them under Part III of the Constitution but that the petitioners have invoked the jurisdiction of the Court for the relief of reopening concluded contracts, and that if the court accepts the contentions, the petitioners would derive an unfair advantage over others who may not have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for Flats at a lower price. The Court should not therefore entertain the petitions. Dismissing the petitions, ^ HELD: 1. As the Court has heard the petitions on merits it is not inclined to reject them on the preliminary objections. It is undeniable that camouflage of article 14 cannot conceal the real purpose motivating the petitions, namely to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained. Petition to this Court under article 32 is not a proper remedy nor is the Supreme Court a proper forum for re opening concluded contracts with a view to getting back a part of the purchase price paid after the benefit is taken. [712 D E] In the instant case it is difficult to appreciate how article 14 can be attracted. Cost price of a property offered for Sale is determined according to the volition of the owner who has constructed the property unless it is shown that he is under any statutory obligation to determine cost price according to certain statutory formula. The authority is under no obligation to fix price of different flats in different schemes albeit in the same income group at the same level or by any particular statutory or binding formula. Those who opt to take flats in a particular income wise, area wise scheme in which all flats came up together as one project, may form a class and any discriminatory treatment In the same class may attract article 14. But to say that the Authority would be bound to offer flats income group wise according to the same price formula is to expect the Authority to ignore time, situation, location and other relevant factors which all enter the price structure. [713 E, 715 A F] Radhakrishna Agarwal & Ors. vs State of Bihar & Ors. ; at 255; Har Shankar & Ors. etc. vs The Dy. Excise & Taxation Commr. & Ors. ; , referred to. In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination, Court can certainly not be expected to decide without the assistance of the experts. [715 F G] Prag Ice & Oil Mills and Anr. etc. vs Union of India; , at 330; Avinder Singh vs State of Punjab ; ; State of Gujarat & another vs Shri Ambica Mills Ltd. Ahmedabad, etc. [974] 3 S.C.R 760 at 782; referred to. Price of land, building, material, labour charges and cost of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their cost varies time wise, place wise and availability wise. All these uncertain factors cannot be overlooked for the purpose of classification. It is not possible therefore to hold that allottees of 706 flats in MIG scheme at any place and executed at any time will form one class for the purpose of pricing policy. The only valid basis for classification would be income wise, area wise, time wise, scheme wise, meaning all flats constructed at or about the same time in same area in one project for particular income group will form a class, and there is no discrimination amongst them. [716 G H. 717 A B] 4. Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable prices to persons belonging to different groups it would not be precluded from devising its own price formula for different income groups. If in so doing it uniformally collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the Authority undertaking, a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply nor can afford on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract article 14. [717 B D] 5. It is a well recognised policy underlying tax law that the State has a wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a. violation of article 14. [717 E F] East India Tobacco Co. vs State of Andhra Pradesh, ; 6. The principle of "no profit no loss" cannot apply either to every flat or to every scheme or to every piece of land developed by the Authority. It would be impossible for the Authority lo function on such fragmented basis and such a policy statement has not been made by the Authority. [718 D E] 7. There is not the slightest or even a remote reference to "no profit no loss" formula for determining the cost price. A survey of the Regulations do not spell out any formula for price determination on the basis of "no profit no loss". Project wise price fixation cannot be dubbed as arbitrary or discriminatory by comparing it with other projects at different places or at different times. [719 A B In the instant case after the work commenced and the actual cost estimate started coming in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000/ which was approved by the Vice Chairman on September 18, 1976. According to the revised estimate the approximate disposal cost for each flat. came tc Rs. 68.202/ and the cost of land per dwelling; unit was Rs. 7008/ . The revised estimate showed the disposal price of each flat as Rs. 75.200/ . The Commissioner of Income Tax who wanted to acquire 40 MIG flats in Prasad Nagar area offered the price of Rs. 75,000/ per flat which price was accepted. The difference between the cost price and the disposal price of Rs. 75,000/ per flat was treated as surcharge and the purpose was to use the extra money for extending price reduction benefit to The allottees of flats in LIG, Janata and CPS schemes. It is therefore difficult to entertain the contention that even if surcharge could be justified its actual computation is arbitrary and irrational. [720 B E, E F] 707 8 . The Vice Chairman is appointed by the Central Government as per Section. 3(3)(b) of the Act. He is a whole time officer and the Chief Executive of the Authority. The composition of the Authority as set out in section 3 would include such persons as Finance and Accounts Member, Engineering Member, representatives of Municipal Corporation of Delhi and representatives of Metropolitan Council. Three other persons, were to be nominated by Central Government of whom one shall be person with experience of planning. It is a high power body. Yet it completely abdicated its power and authority in favour of Housing Committee. The Housing Committee will practically supplant the Authority. By a process of elimination the Housing Committee would supplant the Authority and the Chairman could constitute the Housing Committee. Therefore, the Chairman enjoyed a very wide discretionary power. However once the power to delegate is given by the Regulations, the challenge to validity on the ground of delegation must fail. [720 G H; 721 E H, 722 A] 9. Resolution No. 209 is the one adopted by the Housing Committee. It takes note of the delegation of powers to fix disposal and hire purchase price of flats to the Vice Chairman and further provides that if there is a marginal saving in any scheme the amount be diverted to subsidies cost of Janata and CPS houses. The Resolution No. 200 of the Authority read with Resolution No. 709 of the Housing Committee sets out clearly that the power to fix the disposal price was delegated to the Vice Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions contained in Regulation 3 read with Section 59 clearly envisages such delegation of powers. [722 C E] 10. The note of Accounts Officer (Housing) dated September 8, 1976, submitted to the Financial Advisor (Housing) shows that the flats have been offered at the rate of Rs. 75,000/ to the Commissioner of Income Tax for the Income Tax Department and that should be the disposal price. This note was approved by the Financial Advisor (Housing) and ultimately countersigned by the Vice Chairman Even if it includes surcharge it cannot be said with confidence that the Vice Chairman has not approved has not approved the surcharge as a component of disposal price. [722 G H] </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 108 of 1971. Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968. D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant. D. P. Unival and o. P. Rana for the Respondent. The Judgment of the Court was delivered by BEG, J. The four appellants Daryao Singh, aged 46 years. Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person. 589 The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas. Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) . It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute. Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years ' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary. These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. give occupants of the buggi, and, after that, Smt. Jahani, who soon joined them, were injured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis. A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: "1. Vertical abrasion, 1 1/2 in. x 1/2 in. On the head, 4 in. above the middle of the left eye brow 2. Transverse abrasion, 1 3/4 in.x3/4 in. On the head, 5 in. above the right eye brow. Round swelling" 2 in.x2 in. On the right side of the head, 1/2 in. above the ear, there was a depressed fracture 2 in.x2 in. underneath on the bone. Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in. behind the middle of the right car. Brain matter was coming out of the wound. 590 5. Transverse incised wound 1 1/4in.x 1/2 in. x bone deep on the A head 3 in. behind the upper part of the right car. The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute. Round blue mark 2 in.x2 in. On the right shoulder portion. There was swelling all over the head. There was no reference of injuries Nos. 1 and 6 in the inquest report . RAGHUBIRA 1. Transverse abrasion 1/4 in.x1/2. On the left ankle inner side. Vertical punctured wound in.x1/3 in.x1/4 in. On the back side, of the elbow, margins, clean cut. smooth and wall defined and angles were acute. Transverse lacerated wound on the head, 1 1/2 in. x 2 in. bone deep on the right side 3 in above the car. Round wound on the head 4 1/2 in. above the middle of the right eye brow with margins clean cut". ASA 1. Punctured wound 1/2 in.x1/4 in.x1/4 in. On the left side of the chest with abrasions on the margins, 64 in. below the axile. Abrasion 1/2 in.x1/4 in. On the left shoulder. Abrasion 1/2 in.x1/4 in. oblique, on the right side of the chest extending towards right shoulder from epigastrium. Abrasion 1/4 in.x1/8 in. On the inner side of the left hand I in. above the wrist. Abrasion 1/4in.x1/6 in. On the right arm back side 3 in. above the elbow. Contusion 3/4 in.x1/2 in. On the right side 3 in. below the edge of the iliac crest. Incised wound 1/2 in.x1/10 in. x skin deep 1/2 in. below the left eye. " 4. SMT. JAHANI: 1. Lacerated wound 1 1/3 in. x 1/2 in. bone deep from front to backward 3 1/2 in. above the left ear. Contusion 4 1/4 in.x1 in. On the left scapular region. 2 1/2 in. below the shoulder. Contusion 1 1/2 in.x1/4 in. parallel to the earth extending from the upper and inner end of injury No. 2. These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh). I had prepared the injury report exhibit Ka 16 at the time of examination. It bears my signature and is correct." 591 5. ASGHAR: 1. Contusion 2 in.x1/4 in.x1/4 in. going from front to back 31 in. above the nose. Punctured wound 1 in.x ' in.x 4 in. On the left hand, outer side 2 in. below the elbow. BIJAI SINGH: 1. Contused wound 1/2 in.x1/2 in. x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in. x1/2 in. in the inner part of the nail. Contusion 2 1/4 in.x3/4 in. extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in. x1/4 . On the palmer side. Abrasion 1/2 in.x1/4 in. On the back and anterior side of right hand, 3 1/2 in. above the wrist. " Injuries were found on the side of the accused on 3 appellants only. They were as follows: (1) OM PAL: 1. Lacerated wound 1/2 in.x4/10 in.x2/10 in. on the inner side of left forearm 3 1/2 in. above the left wrist. Lacerated wound 2/10 in.x2/10 in.x6/10 in. On the inner side of left forearm. Abrasion 3/10 in. X21 10 in. On the upper r side of left forearm, 3 1/2 in. above the left wrist. " 2. DARYAO: "1. Abrasion in.x3/10 in on the left shoulder in front side. Wound with scab 4/10 in.x2/10 in. On the left are outer side, 6 in. below left shoulder". BIRBAL: 1. Lacerated wound 2 in.x3/10 in. bone deep on the front , side of head. Abrased contusion 1 in.x2/10 in. On the left side of head, 3 in. above the left ear. Contusion 1/2 in.x4/10 in. On the right side of head, 2 in. above the right ear. Abrasion 1/4 in.x1/4 in. On the index finger of the right hand upper side on the middle phalux. Abrasion 1/4 in.x1/4 in. On the upper side at the root of the middle finger of right hand. Abrasion 1/2 in.x1/10 in. On the inner side of the lower portion of left fore arm, 3 in. above the wrist. Abrasion 3/10 in.x1/10 in. On the inner side of left wrist. 592 8. Lacerated wound 3/10 in.x1/10 in.x3/10 in. an the A right at a distance of 31 in. from side of thigh, anterior iliac spine". It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate 's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago. The defense case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution. Their defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason. The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there. The prosecution evidence suffered from some quite obvious infirmities. Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them. Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims. However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation. It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony. That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected. Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons. It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked. It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number. Even if these five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self defence. The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi. Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six. It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis. these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five. The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives. Three of the accused persons as already indicated, had received injuries. On their own version, these injuries were sustained in the same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt? The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants. The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared. This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted. 594 It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually. guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to be total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five. We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt. Justice has not only to be done, but, as have been often said, must manifestly appear to be done. Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre planning. Some Of the assailants had sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable. (See: Yehwant & Anr. vs State of Maharashtra;(1) and Sukh Ram vs State of U.P.)(2). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case. We have to examine the elect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated. In Yeshwant 's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under. This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness." Distinguishing Krishna Govind Patil vs State of Maharashtra (3) this Court said in Yeshwant 's case (supra) (at p. 302): "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal. Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & vs State of Punjab (4) Bharwad Mepa Dana & Anr. vs State of Bombay;(5) Kartar Singh vs State of Punjab;(6) Mohan Singh vs State of Punjab;(7) Ram Bilas Singh & Ors. vs State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil 's case (supra) was also quoted. In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons. A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303. (2) [1974) 2 S.C.R. p. 518. (3) ; (4) ; (5) ; (6) ; (7) [1962] Suppl (3) S.C.R. 848. (8) 596 The identity of some of the participants. It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly. The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows: "29. Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing. (2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school. " This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses. He was bound, with the background of hostility between two sides and 597 the events mentioned above, to have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shewn against him. We, therefore, think that appropriate action under Section 29 of the Children 's Act could have been taken in his case if the question had been raised in time. We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly. All that we can do now, in the circumstances of Om Pal 's case, is to recommend the remission of the remaining period of om Pal 's sentence to the authorities concerned. Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal. [/INST](1) A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors. (3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. [873D 874B] In 1940, two brothers, defendants 1 and 5 partitioned their movable and immovable properties by two separate transactions. At that time defendant S had two sons who were minors. They and their minor brothers filed a suit in 1952 for cancellation of the partition and for re opening it on the ground that the partition was unjust and unfair and had the effect of depriving the minors of their legal shares in the properties. The trial court passed a preliminary decree for re partition of the movable properties as it was ex facie unjust and unfair and directed appointment of the Commissioner to go into the valuation of the assets sought to be partitioned while holding that the partition of immovable properties was neither unjust nor unfair. In appeal, the High Court agreed with the findings of the trial court but set aside the direction of the trial court for the appointment of Commissioner; quantified the value of the disparity in the share of the plaintiffs and passed a decree to the extent of 2/5th share of Rs. 17.700. In appeal to this court, passing a decree for a sum of Rs. 46,500/ with future interest in modification of the High Court 's decree, ^ HELD: (1) The division of immovable properties was just fair and equal. The properties were not actually valued according to the market rate and only a notional valuation had been given in the partition deed; but, in view of the detailed examination by the two courts of the facts regarding capitalised value of the properties allotted to the two brothers, it could not be said that the partition of the immovable properties was either unfair or unjust. This court will not interfere with concurrent findings of the fact given by the courts below in the absence of any extraordinary or special reasons. [868E F; 869B C] 2(a) But a perusal of the schedules to the partition deed relating to movable properties shows an ex facie disparity of about Rs. 10,000. [874B] (b) Further, the evidence disclosed that a sum of Rs. 55.000 with defend ant 1, was agreed upon between the brothers to be divided later, but this 7 1127 SCI/75 864 amount was not included in the partition deed. Assuming that defendant 5 had not taken any objection, since the amount was very large, his Silence or his acquiescence in allowing his elder brother to swallow the amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect because. he and his minor sons were member of an Hindu Undivided Family. [870H 871B] (c) Taking these two sums into account and calculating the plaintiff 's share in 1940 and adding interest thereon till date of decree, the plaintiffs would be entitled to Rs. 46,500. [874D E] (d) The High Court was right in holding that it would not be in the interest of the minors or. Of justice to order the appointment of a Commissioner for re opening the entire partition when the shares of the plaintiffs are easily ascertainable in terms of money and can be quantified. [874C D] Bishunodeo Narain and vs Seogeni Rai and Jagernath. 556, followed. Devarain and ors. vs Janaki Ammal and Ors. C.A. No. 2298 of 1066 dated r March 20, 1967, Lal Bahadur Singh vs Sispal Singh and ors. T.L.R. 14 All 498; Chanvira 'Pa ' vs Da 'Na ' 'Va ' & ors. I.L.R. and Maruti vs Rama I.L.R. referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 185 of 1966. Appeal by special leave from the judgment and order dated March 20, 1962 of the Mysore High Court in Writ Petition No. 109 of 1960. A.K. Sen, R. Ganapathy Iyer and R. Gopalakrishnan, for the appellants. D.Narsaraju, T. A. Ramachandran and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgement of the Mysore High Court dated March 20, 1962 dismissing writ petition No. 109 of 1960. The appellants had prayed therein for the grant of writ for quashing a. notice dated January 16, 1960 issued by the respondent under section 15 of the Excess Profits Tax Act, 1940 (Act XV of 1940), hereinafter called the 'Act ', calling upon the appellants to submit a return of the standard profits and the profits actually made during the chargeable accounting period from October 30, 1943 to October 30, 1944 on the ground that the profits had been under assessed. The appellants carried on a business constituting themselves into a partnership called 'Guduthur Thimmappa & Brothers in 1934. On the date of commencement of the business the part ners were G. Thimmappa, G. Ekambarappa, and G. Padmanabhan, each of the partners representing their respective joint families. The business of the firm was in Bellary town and the partners of the firm were residents of Bellary town during the period the firm was carrying on business. The, firm was dissolved on October 16, 1944. Thimmappa, one of the partners, died on April 13, 1955. For the chargeable accounting period from October 30, 1943 to April 30, 1944, the Excess Profits Tax Officer had taken steps to assess the "escaped" profits of the firm. He issued the necessary notices to G. Padmanabhan and G. Ekambarappa as the partners of the dissolved firm. He also issued notice to G. M. Prabhu and G. Lakshmidevamma as the representatives of G. Thimmappa. The contention of the appellants, before the High Court was that as from November 1, 1956 the Act must be 866 deemed to have been repealed so far as Bellary district is concerned and therefore the respondent was not competent to take any proceedings for determining the escaped income under section 15 of that Act. The High Court rejected the contention on the ground that, though the Act stood repealed by reason of the inclusion of Bellary district in Mysore State, the liability to pay tax on the escaped profits continued by virtue of section 6 of the General Clauses Act. The question to be considered in this appeal is whether the appellants continued to be liable to be proceeded against under section 15 of the Act on the profits which had escaped taxation. The present Bellary district was a part of the old Madras State which was a Part "A" State under the Constitution of India till its merger with the Mysore State on October 1, 1953 which was a Part "B" State. The Mysore State continued to be a Part "B" State till November 1, 1956. The Act extended, when first promulgated, to. the territory of former British India. After the Constitution came into force, section 1(2) of the Act was adapted so as to extend the operation of the Act "to the whole of India except Part 'B ' States" by the Adaptation of Laws Order, 1950. After the formation of new States in pursuance of the States Reorgani sation Act, 1956 (Act 37 of 1956), sub section (2) of section 1 of the Act was adapted by the President by Adaptation of Laws (No. 3) Order, 1956 dated December 31, 1956. Section 1(2) of the Act as adapted read as follows : "It extends to the whole of India except the territories which immediately before the 1st November, 1956 were comprised in part 'B ' state." The result of the adaptation was that all the provisions of the Act stood repealed so far as the district of Bellary was concerned with effect from December 31, 1956. It was contended on behalf of the appellants that it is not a case of repeal of the Act and so the provisions of section 6 of the General Clauses Act could not be invoked to sustain the validity of the notices issued by the respondent under section 15 of the Act. It was argued that so far as the Act was con cerned, the Adaptation of the Laws Order, 1956 only modified the provisions of section 1 (2) of the Act and did not repeal the Act as such and the effect of the modification was that the provisions of the Act were no longer applicable to the Bellary district which was comprised in the territory of Part 'B ' State of Mysore immediately before November 1, 1956. In our opinion there is no justification for the argument put forward on behalf of the appellants. The result of the Adaptation of Laws Order, 1956 so far as the Act was concerned, was that the provisions of that Act were no longer applicable or in force in Bellary district. To put it differently, the Act was repealed so far as the area of Bellary 8 6 7 district was concerned. Repeal of an Act means revocation or abrogation of the Act and, in our opinion, section 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act. Section 6 of the General Clauses Act states "Effect of repeal. Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or Section 3(19) of the General Clauses Act defines an "enactment" as including "a Regulation and also as including any provision contained in any Act or in any such Regulation as aforesaid". The argument was also stressed on behalf of the appellants that even if section 6(c) of the General Clauses Act was applicable there was no "liability incurred or accrued" as there was no assessment of escaped profits before November 1, 1956 when the adaptation was made. We do not think there is any substance in this argument. The liability of the appellants to tax arose immediately at the end of the chargeable accounting period and not merely at the time when it is quantified by assessment proceedings. It follows therefore that the notice issued under section 15 of the Act was legally valid and the appellants representing the original partners of the firm continued to be liable to be proceeded against under that section for the profits which had escaped taxation. In Wallace Brothers and Co. Ltd. vs Commissioner of income tax(1), the Judicial Committee expounded in clear terms the scope of a tax liability under the Income tax Act. It was observed by the Judicial Committee as follows : ". . the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed. " The same view has been expressed by this Court in Chatturam Horilram Ltd. vs C.I.T. (2) in which the legal position was reviewed (1) , 244. (P.C.) (2) 868 with regard to the question of charge to income tax. In that case, the assessee company carrying on business in Chota Nagpur was assessed to tax for the year 1939 40, but the assessment was set aside by the Income tax Appellate Tribunal on March 28, 1942, on the ground that the Indian Finance Act, 1939, was not in force during the assessment year 1939 40, in Chota Nagpur which was a partially excluded area. On June 30, 1942, a Regulation was promulgated by which the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939. Thereupon the Income tax Officer made an order holding that the income of the assessee for the year 1939 40 had escaped assessment and issued to the assessee a notice under section 34 of the Income tax Act. The validity of the notice was questioned. It was held by th Court that though the Finance Act was not in force in that area in 1939 40, the income of the assessee wasliable to tax in that year and, therefore, it had escapdently of the passing of the Finance Act but until the Finance Act It was pointed out that the income was chargeable to tax independing dently of the passing of the Finance Act but until the Finance Act was passed no tax could be actually levied. The same principle was reiterated by this Court in Kalwa Devadattam vs Union of India(l). The question in that case was whether the liability of a Hindu undivided family arose before or after partition of the family. In that case, this Court speaking through Shah, J. stated in clear terms thus : "Under the Indian Income tax Act liability to pay income tax arises on the accrual of the income, and not from the computation made by the taxing authorities in the course of assessment proceedings; it arises at a point of time not later than the close of the year of account. " The same view has been taken in a recent case by this Court in State of Kerala vs N. Sami lyer (2 ) . In view of the principle expressed in these authorities we are of the opinion that the liability to pay excess profits tax accrued immediately at the end of the chargeable accounting period and that liability was preserved under section 6 (c) of the General Clauses Act even though the Act stood repealed so far as Bellary district was concerned with effect from November 1, 1956. Mr. Narsaraju contended in the alternative that on the combined operation of section 53 of the Andhra Pradesh Act (Act 30 of 1953) and s ' 119 of the State Reorganisation Act (Act 37 of 1956) all the provisions of the Excess Profits Tax Act, 1940 remained in operation in Bellary district in spite of the Adaptation of Laws Order, 1956. Section 53 of the Andhra Pradesh Act states as follows: (1) (2) A.I.R. 1966 S.C. 1415. 8 69 .lm15 "The provisions of Part 11 shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Madras or of Mysore shall, until otherwise provided by a competent Legislature or other competent authority, continue to have the same meaning. " .lm0 Section 119 of the State Reorganisation Act reads as follows "The provisions of Part It shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. " Section 120 of this Act states : "For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. In this section, the expression "appropriate Government" means (a) as respect any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, (i) in its application to a Part A State, the State Government, and (ii) in its application to a Part C State, the Central Government. " it was pointed out that the Act was in force in Bellary district When the Constitution came into force and the effect of section 53 of the Andhra Pradesh Act was to continue the operation of that Act so far as Bellary district was concerned. The effect of section 119 870 of the State Reorganisation Act was to preserve the territorial operation of the law which was immediately in force before the date of the promulgation of that Act until such law was repealed by the competent legislature or a competent legislative authority. There is great force in. the argument advanced by Mr. Narsaraju on this point. But it is not necessary for us to express any concluded opinion on this aspect of the case because we have already given reasons for holding that the appeal must be dismissed on the ground that the Act stood repealed by reason of the Adaptation of Laws Order, 1956 and the liability to pay tax on escaped profits continued under section 6 of the General Clauses Act. We accordingly affirm the judgment of the Mysore High Court dated March 20, 1962 and dismiss this appeal with costs. G.C. Appeal dismissed. [/INST]The appellant was one of several applicants for a mining lease in Andhra Pradesh. The State Government however granted it to 'respondent No. 3. The appellant then filed an application in revision, under section 30 of the Mines & Minerals (Regulation and Development) Act, 1957, read with r. 54, to the Union of India. Respondent No. 3 filed a counter statement and the State Government filed its comments. The appellant filed a rejoinder. The Union Government without hearing the appellant rejected his revision application. An appeal was filed before this Court. The question that fell for consideration was whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court. HELD : (i) In exercising its powers of revision under r. 55 the Central Government discharges functions which are quasi judicial. The decisions of tribunals in India are subject to the supervisory powers of the High Court under article 227 of the Constitution and of appellate powers of this court under article 136. Both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected ' or 'dismissed '. In such a case this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the case. This would certainly be a very unsatisfactory method of dealing with the appeal. [308E F; 309B C] If the State Government gives sufficient reasons for accepting the application of one party and rejecting that of others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo, without anybody being the wiser for the review by the Central Government. The same difficulty would arise where the State Government gives a number of reasons some of which are good and some are not and the Central Government gives its decision without specifying those reasons which according to it are sufficient to uphold the order of the State Government. That is why in such circumstances, what is known as a 'speaking order ' is called for. [309C F] 3 03 A 'speaking order ' is all the more necessary in the case of a decision under r. 55 because there is provision for new material being placed before the Central Government which was not there before the State Government, and further, because the decision, affecting important rights of parties, is given in a summary manner without a hearing being allowed to the parties. A party is entitled to know why the decision has gone against him. [320G 321B] The absence in r. 55 of any provision for giving such reasons is not decisive of the matter in view of the above considerations. [315H] Shivji Nathubhai vs The Union of India, ; , M.P. Industries vs Union, ; , Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunihunwala, ; and Sardar Govindraov. State, [1965] 1 S.C.R. 678, followed. Nandram Hunatram, Calcutta vs Union of India, A.I.R. 1966 S.C.1922 and Commissioner of Income tax vs K. V. Pilliah, , distinguished. Rex vs Northumberland Compensation Appeal Tribunal Ex parte Shaw, , Vedachala Mudaliar vs State of Madras, A.I.R. 1952 Madras 276, Rantayya vs State of Andhra, I.L.R. 1956 Andhra 712, Annamalai vs State of Madras, A.I.R. 1957 Andhra Pradesh 738 and Joseph vs Superintendent of Post Offices, Kottayam, I.L.R. 1961 11 Kerala 245, referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 136 of 1964. 415 Appeal from the judgment and order dated February 24, 1961 of the Bombay High Court in Misc. Application No. 333 of 1960. A. V. Viswanatha Sastri, T. A. Ramachandra, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant. R. Ganapathy lyer, R. H. Dheber and R. section Sachthey, for the respondent. The Judgment of the Court was delivered by Sikri, J. This is an appeal on a certificate granted by the High Court of Bombay against its judgment dated February 24, 1961, dismissing the petition filed by the appellant under article 226 of the Constitution of India. This appeal raises a short question as to the construction of section 49E of the Indian IncomeTax Act, 1922, hereinafter referred to as the Act. Before we deal with this question, it is necessary to set out the relevant facts. The appellant, at the material time, carried on business not only in India but also outside India, i.e. Ceylon, the former States of Kolhapur and Kapurthala and other places. It is not necessary to give the facts relating to the income in Ceylon and Kolhapur because if the facts relating to the income made in Kapurthala are stated, these will bring out the real controversy between the appellant and the Revenue. We may mention that it is common ground that the facts relating to Ceylon income and Kolhapur income are substantially similar. On July 9, 1954, the appellant wrote a letter to the Income Tax Officer, Companies Circle, Bombay, stating that for the assessment year 1949 50, it was entitled to refund on the income taxed in Kapurthala State. It attached an original certificate for tax showing payment of Rs. 37,828/11/ , and requested that a refund order be passed at an early date. On June 27, 1956, the Income Tax Officer rejected the claim on the ground that the claim filed by the appellant was not within the time limit of four years laid down in r. 5 of Income Tax (Double Taxation Relief) (Indian States) Rules 1939 hereinafter called the Indian States Rules. On December 18, 1956, the appellant filed a revision, under section 33A of the Act, against the said order, before the Com missioner of Income Tax, Bombay. The appellant stated in the petition that "unfortunately the Company 's assessment for the year in question was completed by the Income Tax Officer on 416 the last day of the financial year 1953 54, i.e., 31 3 1954 being the last date on which their claim for double income tax relief should have been lodged. In absence of the assessment order being received by the Company it was not physically practicable for the assessee to lodge its claim for double income tax relief and as such the time prescribed under Section 50 had already expired when the assessment order was received by the company. " The Commissioner made some enquiries. The appellant, in its letter dated June 30, 1958, replied that no provisional claim for double income tax relief was made by the appellant within the time prescribed. The appellant reiterated its own plea that it was not "physically practicable" for the assessee to lodge its claim for double tax relief within the time prescribed. The Commissioner, however, rejected the petition. He observed that "the assessment in the Kapurthala State was made on 20 3 1950, i.e., much before the assessment was completed by the Bombay Income tax Officer. Nothing prevented the petitioner, therefore, from filing a provisional claim before the period of limitation was over. At least, it should have made such a claim before the Income Tax Officer at the time of assessment. I regret I cannot condone the delay in filing the claim as there is no provision under Section 50 for such condonation. " The appellant then approached the Central Board of Revenue. The Central Board of Revenue, by its letter dated December 31, 1958, declined to interfere in the matter. The appellant did not take any steps to apply to the High Court under article 226 for quashing the above orders of the Commissioner of Income Tax or the Central Board of Revenue. On August 28, 1959, the Income Tax Officer issued three notices of demand under section 29 of the Act in respect of the Assessment years 1949 50, 1950 51 and 1951 52. The appellant then wrote a letter dated September 4, 1959, requesting the IncomeTax Officer to set off the refunds to which the appellant was entitled pursuant to the Provisions of Income Tax (Double Taxation Relief) (Ceylon) Rules, 1942, and read with the provisions of sections 49A and 48 of the Income Tax Act, in respect of the assessment years 1942 43, 1943 44 and 1944 45, relating to Ceylon, and the assessment year 1947 48 and 1949 50 relating to Kolhapur and Kapurthala, against the said demands. In this letter the appellant gave arguments in support of its request. In short, the argument was that although the applications claiming those refunds were submitted beyond the prescribed time limit, nevertheless the appellant had a right still, pursuant to the the provisions of section 49E, to call upon the Income Tax Officer to 417 set off the refunds found to be due to the appellant against the tax demands raised by the Income Tax Officer on the appellant. The appellant also approached the Central Board of Revenue,. urging similar points. The Central Board of Revenue, however, by its letter dated June 24, 1960, declined to interfere in the matter. The appellant then on October 7, 1960, filed a petition under article 226 of the Constitution. After giving the relevant facts and submissions, the appellant prayed that the High Court be pleased to issue a writ in the nature of Mandamits or a writ, direction or order under article 226 of the Constitution, directing the respondents to set off the refunds due to the petitioner under the aforesaid double taxation relief rules against the tax payable by it for the assessment year 1955 56. It appears that in the meantime the petitioner had paid tax for the assessment years 1949 50 and 1950 51, and the demand for Rs. 89,000.58 for the assessment year 1951 52 was kept in abeyance, and later when the assessment for 1955 56 was completed, the Income Tax Officers had agreed to keep in abeyance Rs. 79,430.19 out of the total demand relating to the assessment year 1955 56, till the decision of the Central Board of Revenue. The second prayer was that the High Court be pleased to issue writs in the nature of Prohibition or other direction or order under article 226 of the Constitution prohibiting the respondents, their officers, servants and agents from demanding or recovering from the petitioner the tax payable by it for the assessment year 195556 without first setting off against that tax the refunds due to the petitioner under the aforesaid double tax relief rules. It will be noticed that no prayer was made for quashing the order of the Commissioner, dated August 23, 1958, and the order of the Central Board of Revenue dated December 31, 1958. It was indeed contended by Mr. section P. Mehta, the learned counsel for the appellant before the High Court that the appellant was not challenging the orders of the Income Tax Officer rejecting his application for refund, but was only challenging the orders made by them rejecting its application for grant of set off. Mr. Viswanatha Sastri, the learned counsel for the appellant first urged that as compliance with r. 5 of the Indian States Rules, 1939 was physically impossible, r. 5 did not apply, and consequently the refund due to the appellant notwithstanding r. 5. But we cannot go into the question whether r. 5 was rightly or wrongly applied by the Income Tax authorities. The 418 orders dated August 23, 1958 and December 31, 1958, cannot be attacked in these proceedings. Therefore, we must proceed on the basis that those orders were validly passed. We express no opinion whether the view of the Income Tax authorities that r. 5 was applicable in the circumstances of the case was correct or not. This takes us to the construction of section 49E. Section 49E reads thus : "49E. Power to set off amount of refunds against tax remaining payable. Where under any of the provisions of this Act, a refund is found to be due to any person, the Income tax Officer, Appellant Assistant Commissioner or Commissioner, as the case may be may, in lieu of payment of the refund, set off the amount to be refunded, or any part of that amount against the tax, interest or penalty if any, remaining payable by the person to whom the refund is due. " The High Court held that section 49E of the Act did not give :any assistance to the appellant because, according to it, there ,must be prior adjudication in favour of the appellant. The High Court observed that "the expression found to be due" clearly means that there must, prior to the date set off is claimed, be an adjudication whereunder an amount is found due by way of refund to the person claiming set off." Mr. Sastri contends that it is not necessary that there should be a prior adjudication to enable a person to claim set off. He says that the Income Tax Officer can decide the question whether refund is due or not when an application for refund is made to him. On the facts, he says that it is clear that the appellant is entitled to refund under r. 3 of Indian States Rules, 1939, and the Income Tax Officer has only to calculate the relief due and then set it off. The learned counsel for the respondent, Mr. Ganapath lyer, on the other hand, contends that the orders of the Commissioner and the Central Board of Revenue having become final, there was no obligation on the Income Tax Officer to make any payment of refund, and he says that it is a condition precedent to the applicability of section 49E that the Income Tax Officer must be under an obligation to make a payment. He points out that the expression "in lieu of payment of the refund ' clearly indicates that the Income Tax Officer must be under an obligation to make a payment of refund. He further contends 419 that the refund is not due under the Act but under the said Rules, and therefore, section 49E does not apply. There is no difficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under the provisions of the Act. Section 59(5) provides that the rules made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939, part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning, of section 49E. The question then arises as to whether there should be a prior adjudication existing before a set off can be allowed under 49E, and whether there is any other condition which is necessary to be fulfilled before the section becomes applicable. We are of the opinion that it is not necessary that there should be a prior adjudication before a claim can be allowed under section 49E.There is nothing to debar the Income Tax Officer from determining the question whether a refund is due or not when an application is made to him under section 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the, appellant. It must ,till show that a refund is due to it. The words "found to be due" in section 49E may possibly cover a case where the claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear by the expression "in lieu of payment". This expression, according to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there. is a subsisting obligation to make a payment. The expression "in lieu of" was construed in Stubbs vs Director of Public Prosecutions(1). It was held there that where a liability has to be discharged by, A in lieu of B, there must he a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under section 49E. In this case in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli gation to pay, and therefore, the claim of the appellant must (1) 420 Therefore, agreeing with the High Court, we hold that section 49E of the Act is of no assistance to the appellant and that the petition was rightly dismissed by the High Court. The appeal accordingly fails and is dismissed, but in the circumstances of the case there will be no order as to costs. Appeal dismissed. [/INST]The appellant took an electric motor from an electrical Works in which the respondent was employed. Dispute arose about the terms on which the motor had been taken. The appellant wrote a letter to the Works that he had purchased the motor after paying its full price; on behalf of the works it was said that it had only been given on hire. The Works, through the respondent, filed a complaint against the appellant alleging breach of trust. The complaint was dismissed by the trying magistrate but in appeal under section 417(3) Criminal Procedure Code the High Court held that the claim of ownership made by the appellant in his letter was not bona fide and that by writing the said letter he had sought to cause wrongful gain to himself and wrongful loss to the works in violation of the entrustment, which made him guilty under section 406 of the Indian Penal Code. In appeal to the Supreme Court by special leave, HELD:The appeal must succeed. Clearly section 405 contemplates something being done with respect to the property which would indicate either misappropriation or conversion to the offender 's own use, or its use or disposal in violation of the contract express or implied. But when as in the present case nothing was done with respect to the use of the property which was not in accordance with the hiring agreement between the parties it cannot be said there was misappropriation or conversion of the property or its use or disposal in violation of the contract. The appellant did not part with the possession of the motor to any body else; he put it to his own use the purpose for which he had taken it. The use of the motor remained the same after the letter in question as before it. The said letter merely raised a dispute of a civil nature between the parties and there was no question of any criminal breach of trust punishable under section 406 with respect to the matter on the basis of that letter. [401 D F; 402 E] </s>