<NAME>, J.

1. This appeal is brought by leave of <ORG>, from a judgment of that Court (<NAME>, <NAME> and <NAME>.) dated August 31, 1943, dismissing eight appeals by the <ORG> against orders and judgments of a divisional bench of three Judges (<NAME> and Sen <NAME>., <NAME> J., dissenting) of <ORG> at Fort William in Bengal, dated June 3, 1943.

2. The orders and judgments of <ORG> were made upon applications under Section 491 of the Criminal Procedure Code, 1898, for directions in the nature of habeas corpus on behalf of nine persons, detained in various jails in pursuance of orders made under Rule 26 of the Defence of India Rules, 1939, on various dates from October 24, 1940, to March 8, 1943. These orders and judgments directed the release of the applicants. Of the nine original applicants eight are called as respondents in the present appeal, but their Lordships were informed that two of the respondents had been released, namely, <NAME>, respondent No. 4, on a date before the judgment of <ORG>, and <NAME>, respondent No. 2, after the judgment of <ORG>. The remaining six respondents, with whom this appeal is now concerned, are under detention by virtue of orders made under Bengal Regulation III of 1818.

3. Having regard to the known and well-settled principle of the English law that a discharge, or an order directing discharge, under a writ of habeas corpus, is final and not subject to appeal, and the importance of preserving safeguards of the liberty of the subject, their Lordships asked for arguments of counsel on the competency, in the present case, of the appeals by the <ORG> from <ORG> to <ORG>, which might equally affect the competency of this further appeal to this <ORG>. It is sufficient to refer to the decision of <ORG> in <NAME> v. <NAME> (1890) 15 App. Cas. 506 where the law of England on this matter is fully dealt with.

4. In the present case, the appeals have proceeded under Sections 205 and 208 of the Government of India Act, 1935. Section 205 provides as follows:-

205. (1) An appeal shall lie to <ORG> from any judgment, decree or final order of a High 'Court in British India, if <ORG> certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every <ORG> in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly.

(2) Where such a certificate is given, any party in the case may appeal to <ORG> on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate has been given, and, with the leave of <ORG>, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.

On the application of the <ORG> <ORG> granted certificates under Section 205(1) for leave to appeal to <ORG>. After the decision of <ORG>, leave was given by them under Section 208(b) to appeal to His Majesty in Council.

5. Their Lordships have come to the conclusion that, in view of the special terms of Section 205 , the appeals in the present case were competent.

6. In <NAME> v. <NAME> it was held that the right of appeal given by Section 19 of the Judicature Act, 1873, did not include an appeal against an order of discharge made upon a writ of habeas corpus. Lord <NAME> says (p. 517):

My Lords, I have insisted at some length upon the peculiarities of the procedure, because I think one cannot suppose that the <ORG> intended to alter all the procedure by mere general words without any specific provision as to the practice under the writ of habeas corpus or the statutes which from time; to time have regulated both its issue and its consequences. My Lords, I do not deny that the words of sect. 19 literally construed are sufficient to comprehend the case of an order of discharge made upon an application for discharge upon a writ of habeas corpus; but it is impossible to contend that the mere fact of a general word being used in a statute precludes all enquiry into the object of the statute or the mischief which it was intended to remedy.

In their Lordships' opinion, the condition of the law of habeas corpus in India, and the purpose and express words of Section 205 of the Government of India Act, 1935, afford a contrast to the condition of the English law and the object and general terms of Section 19 of the Judicature Act of 1873. The history of the matter is shortly stated by Sir <NAME>, then Chief Justice, in his admirable judgment in <CITATION> (1927) I.L.R. 54 Cal. 727 from which the following quotation may be made (p. 749):

I proceed therefore to enquire whether according to the law in India as it now stands there is or is not power in <ORG> to grant the writ of Habeas Corpus at common Jaw independently of Section 491 of the Criminal Procedure Code. Now in 1870 in the case of In the matter of <NAME> (1870) 6 Ben. L.R. 392 Mr. Justice <NAME> held that <ORG> could issue the Habeas Carpus outside the orginal jurisdiction to the Superintendent of the jail at Ali-pore, In 1872 the Code of Criminal Procedure (Act X of 1872) was enacted which gave the right to European British subjects detained in custody whether within the limits of <ORG>'s original jurisdiction or outside those limits to apply for an order directing the person detaining him to bring him before <ORG>, in other words for an order under Section 81 in the nature of Habeas Corpus. Section 82 provided that ' Neither <ORG>s nor any Judge of such <ORG> shall issue any writ of habeas corpus, mainprise, de homine replegiando, nor any other writ of the like nature beyond the Presidency towns.' This prohibition cannot in my opinion be confined to the case of European British subjects nor has this been contended before us. In 1875, <ORG>s' Criminal Procedure Act (X of 1875) in Section 148 set out various purposes for which an order in the nature (A Habeas Corpus might be made and it gave power to <ORG>s to make5 such orders in the case of persons within the limits of their original jurisdiction. It went on to say that 'neither <ORG> nor any Judge thereof shall hereafter issue any writ of Habeas Corpus for any of the above purposes'. Certain particular matters were excepted, it being stated that nothing in this section applies to a person detained under Bengal Regulation III of 1818 and certain other Regulations. . But it is quite clear that for the purposes provided for by Section 148 , the intention was that relief should be granted under the section arid recourse should not be had to the old prerogative writs... The subsequent history of the matter is shortly this that when the Code of Criminal Procedure was amended in 1882 the Acts of 1872 and 1875 were comprised in Schedule I as enactments repealed by Section 2 'but not so as to restore any jurisdiction or form of procedure not existing or followed' on the 1st January 188S (Act X of 1882). The matter remained very much in the same position until 1923, when a right was given to everybody within the appellate jurisdiction of this Court to make an application under Section 491 of the present Criminal Procedure Code .

The question which arises is whether for any of the purposes mentioned in what is now Section 491 , it is open to an applicant still to say that he will make his application independently of that section altogether for the prerogative writ of Habeas Corpus on the civil side of <ORG>. I observe that it has been stated in certain cases that if there is to be any question of the abolition of this right then the <ORG> must say so in the most specific terms. Whether that be a correct view in a matter of procedure of this kind need not be discussed for the. <ORG> has used the most specific terms; and it is plain that the Indian <ORG> never intended that the <ORG> in giving relief of this character should for any of the purposes mentioned in Section 491 be at liberty to act under it or under the old procedure.

In the recent case of <CITATION> (1939) L.R. 66 I.A. 222: s.c. 41 Bom. L.R. 1119 this judgment was approved by the Board, and it was held that, in cases covered by a 491, the power to issue a common law writ of habeas corpus in British India had been taken away by legislation, and the powers conferred by Section 491 substituted therefor. The present applications were under Section 491 . Under Section 404 of the Criminal Procedure Code no appeal lies from any judgment or order of a criminal Court except as provided for by the Code or by any other law for the time being in force. There is no provision in the Code for an appeal from an order made under Section 491 ; there is no conviction or acquittal in such proceedings, and Section 417 , which taken along with the new Section 411A (2) enacted by Section 2 of the Amending Act of 1943 (Act XXVI of 1943) allows an appeal on behalf of the <ORG> only from an order of acquittal is equally inapplicable. Accordingly, as regards appeal, the position under the Criminal Procedure Code as to proceedings under Section 491 is in effect the same as the position stated in <NAME> v. <NAME>.

7. Turning again to Section 205 of the Government of India Act of 1935, their Lordships are clearly of opinion that the section relates to both the civil and criminal jurisdiction of <ORG>; the terms of Sub-section (2) of Section 210 appear to put this beyond doubt, and their Lordships agree with the decision of <ORG> to this effect in <NAME> v. The Crown  F.C.R. 159. Further, the width of the language used is striking, viz. " any judgment, decree or final order of <ORG>," and " it shall be the duty of <ORG> in British India to consider in every case." The purpose of the provision is to confer a right of appeal in every case that involves a substantial question of law as to the interpretation of the Act or any Order in Council made thereunder. The object is clearly to secure uniformity of decision in <ORG> by the determination of a <ORG> superior to them all. On the most moderate view of the matter, the securing of that object is at least as important in cases of habeas corpus, in which such questions are very apt to arise, as in other cases. In the absence of an express exception of habeas corpus cases, and having in view the terms and purpose of the section, their Lordships are unable to limit the terms of the section by mere construction so as to exclude these cases from its operation. Accordingly Section 205 of the Act of 1935 provides one of the exceptions referred to in Section 404 of the Criminal Procedure Code.

8. Their Lordships are therefore of opinion that the appeals from <ORG> were competent, and it follows that the appeal to His Majesty in Council was also competent, and they will proceed to deal with the appeal on the merits.

9. The present applications under Section 491 of the Criminal Procedure Code were filed on April 24, 1943, two days after the decision of <ORG> in <NAME> v. King Emperor  F.C.R. 49: S.C. (1943) 46 Bom. L.R. 22 under which it was held", reversing the decision of <ORG> refusing to make an order under Section 491 for release of the applicants, that Rule 26 of the Defence of India Rules was ultra vires, and was not warranted by the Defence of India Act, 1939.

10. On April 28, 1943, the Governor General made and promulgated Ordinance No. XIV of 1943 under Section 72 of the Ninth Schedule of the Government of India Act, 1935. By Section 2 of the Ordinance a new clause was substituted for Clause (x) of Section 2(2) of the Defence of India Act, 1939. Section 3 of the Ordinance provided:

that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2 of the Defence of India Act, 1939.

The amendment effected by Section 2 of the Ordinance removed the grounds on which <ORG> had pronounced Rule 26 to be ultra vires. The terms of Rule 26 were not altered by the Ordinance.

11. In the present applications, <NAME>'s case was taken as binding on them by both <ORG> and <ORG> and the new Ordinance No. XIV was the main object of challenge by the applicants. But before this <ORG>, the <ORG> has placed in the forefront a challenge of the correctness of the decision in <NAME>'s case, and success in that contention would vindicate the validity of Rule 26 and would supersede any consideration of Ordinance No. XIV. It is therefore necessary to dispose of this question first.

12. The material portions of Section 2 of the Defence of India Act. 1939 (Act XXXV of 1939), as amended by Section 2 of the Defence of India (Amendment) Act, 1940 (Act XIX of 1940), are as follows:-

"2. (i) The Central Government may, by notification in the official <ORG>, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by subjection (i), the rules may provide for or may empower any authority to make orders providing for, all or any of the following matters, namely:-

(v) preventing the spreading without lawful authority or excuse of false reports or the prosecution of any purpose likely to cause disaffection or alarm, or to prejudice His Majesty's relations with foreign powers or with States in India or to prejudice the maintenance of peaceful conditions in the tribal areas,, or to promote feelings of enmity and hatred between different classes of His Majesty's subjects;

(x) the apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing anything.

The material part of Rule 26, as it has stood since 1940, is as follows:-

26. (J) The Central Government or <ORG>, if it is satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of a public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the/ efficient prosecution of the war it is necessary so to do, may make an order;

(a) ...

(b) directing that he be detained;

13. In <NAME>'s case the judgment of <ORG> was delivered by Gwyer <NAME> who first dealt with the main argument of the appellant, which had been rejected by <ORG>, and proceeded (p. 61):

We, therefore, reject the main argument addressed to us on behalf of the appellant, and, if there were nothing more in the appeal, we should dismiss it without further discussion. There) is however another aspect of the case, which was not argued until the <ORG> itself drew the attention of counsel to it; for it seemed to us that it was open to question whether rule 26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be hold void arid inoperative, either in whole or in part; and orders made under it will be similarly open to challenge.'' The learned Judge then proceeded to discuss paragraphs (v) and (x) of Section 2(2) of the Act, and for reasons fully stated by him, he came to the conclusion that Rule 26 was not within the powers conferred by Sub-section (2) of Section 2 and he stated (p. 68):

The <ORG>, having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x); though if paragraph (x) were not in the Act at all, perhaps different considerations might apply... We are compelled therefore to hold that rule 26 in its present form goes beyond the rule-making powers which the <ORG> has thought fit to confer upon <ORG> and is for that reason invalid.

14. Their Lordships are unable to agree with the learned Chief Justice of <ORG> on his statement of the relative positions on Sub-sections (J) and (2) of Section 2 of the Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of their Lordships, the function of Sub-section (2) is merely an illustrative one; the rule-making power is conferred by Sub-section (1), and "the rules" which are referred to in the opening sentence of Sub-section (2) are the rules which are authorised by, and made under, Sub-section (1); the provisions of Sub-section (2) are not restrictive of Sub-section (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers-conferred by Sub-section (1)." There can be no doubt-as the learned Judge himself appears to have thought-that the general language of Sub-section (J) amply justifies the terms of Rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to Sub-section (2).

15. Their Lordships are therefore of opinion that <NAME>'s case was wrongly decided by <ORG>, and that Rule 26 was made in conformity with the powers conferred by Sub-section (J) of Section 2 of the Defence of India Act. It is, accordingly, unnecessary for their Lordships to consider whether Rule 26 was not also within paragraphs (v) and (x) of Sub-section (2) of Section 2 , contrary to the opinion of <ORG>, and their Lordships express no opinion on the matter. As already stated), their Lordships are also relieved from any consideration of Ordinance XIV of 1943.

16. As regards the remaining questions, counsel for the <ORG> stated them under two main heads, viz. first, whether the orders of detention can be questioned in view of the provisions of Section 59(2) of the Government of India Act and Section 16 of the Defence of India Act, and, secondly, assuming that they can be so questioned, whether there were materials on which the <ORG> below could properly decide that the orders were not made in conformity with Rule 26.

17. The order for detention of respondent No. 1, which is typical of the other cases, is as follows:--

Calcutta, the 27th October, 1942.

Whereas the person known as <NAME>, M.L.A., son of late <NAME> of 3|1 Kali Banerjee Lane, Howrah, is detained in the Howrah Jail under the provision in rule 129 of the Defence of India Rules;

And whereas the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the Defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, it is necessary to make the following orders to continue his detention;

Now, therefore, in exercise of the powers conferred by Clause (6) of Sub-rule (1) and sub-rule (5) of rule 26 of the Defence of India Rules, the Governor is pleased to direct-

(a) that the said person shall until further orders be detained;

(b) that until further orders the said person shall continue to be detained in the Howrah Jail; and

(c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940.

By order of the Governor, <NAME>, <ORG>, to the Govt. of Bengal.

18. Except that in the case of respondent No. 6, <NAME>, there -was no previous arrest under Rule 129, and that in some cases the order was signed on behalf of the Governor by '" <NAME>, Addl. Secy, to the Govt. of Bengal" there is no material difference from the above order in the case of the remaining orders.

19. The <ORG> maintained that the orders being on their face regular and in conformity with the language of the rule, it was not open to the <ORG> to investigate their validity any further, and relied on the statutory provisions already referred to. It should, however, be stated that Rule 3(i) of the Defence of India Rules provides that the General Clauses Act , 1897, is to apply to the interpretation of these rules as it applies to the interpretation of a Central Act , and that, under <CITATION> of the General Clauses Act.

(43a) 'Provincial Government', as respects anything done or to be done by the ' Provincial Government' after the commencement of Part III of the Government of India Act, 1935, shall mean-

(a) in a Governor's Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in that behalf made by and under the said Act...

20. Section 59 |(2) of the Government of India Act, on which the <ORG> relies, provides:

Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

21. In the opinion of their Lordships, the contention of the <ORG> goes too far, as the sub-section only, relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of <ORG>, viz.:

It is quite a different thing to .question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying: out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a <ORG>: as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenue to produce admissible) evidence sufficient to establish even a prima facie case that the recital is not accurate.

On this point <ORG> was unanimously against the <ORG>. The other statutory provision relied on by the <ORG> before the <ORG> was not, it appears, brought before <ORG>; it was Section 16 of the Defence of India Act, which provides as follows:

16. (1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, within the meaning of the Indian Evidence Act , 1872, presume that such order was so made by that authority.

22. Sub-section (1) assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not made in conformity with the power conferred, heavily though the burden of proof may lie on the challenger, as stated by the Chief Justice in the passage just cited. Sub-section (2) raises a presumption of fact, which may be displaced, though here again the burden is likely to be heavy. Section 4 of the Indian Evidence Act provides:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard; such fact as proved unless and until it is disproved....

Accordingly, the contention of the <ORG> that the <ORG> has no jurisdiction to investigate the validity of the orders fails.

23. On construction of Rule 26, the majority of the Judges of <ORG> held that the Governor must be personally satisfied as to the matters therein set out, and that, in view of the admission by the <ORG> that in none of the cases before them had the Governor himself considered the case, the orders for detention were not in conformity with the rule. They based their conclusion mainly on the power of delegation (which has admittedly not been exercised in the present case) conferred by Sub-section (5) of Section 2 of the Defence of India Act, which provides as follows:

(5) A Provincial Government may by order direct that any power or duty which by rule made under Sub-section (i) is conferred or imposed on the Provincial Government or which, being by such rule conferred or imposed on <ORG>, has been directed1 under Sub-section (4) to be exercised or 'discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by any officer or authority, not being (except in the case of a Chief Commissioner's Province) an officer or authority subordinate to <ORG>.

24. The learned Chief Justice disagreed, holding that Sub-section (5) was merely supplementary, and afforded no ground for excluding the ordinary methods by which <ORG> executive business was authorised to be carried on by Chapter II of Part III of the Government of India Act, 1935.

25. Their Lordships are of opinion that the learned Chief Justice was right.

26. It will be remembered that the definition of Provincial Government in <CITATION> of the General Clauses Act refers one to the provisions of the Government of India Act for the action or non-action of the Governor, and this takes one to Chapter II of Part III, which is headed " The Provincial Executive--The Governor". The material sections are as follows:-

49.-(I) The executive authority of a Province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him, but nothing in this section shall prevent the <ORG> or <ORG> from conferring functions, upon subordinate authorities, or be deemed to transfer to the Governor any functions conferred by any existing Indian law or any court, judge, or officer or any local or other authority.

(2) Subject to the provisions of this Act, the executive authority of each Province extends, to the matters with respect to which <ORG> has power to make laws.

50-(1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in hi9 discretion;

Provided that nothing in this sub-section shall be construed as preventing' the Governor from exercising his individual judgment in any case where by or under this Act he is required so to do.

(2) The Governor in his discretion may preside at meetings of the council of ministers.

(3) If any question arises whether any matter is or is not a matter as respects which, the Governor is by or under this Act required to act in his discretion or to exercise his individual judgment, the decision of the Governor in his discretion shall be final, and the Validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised' his individual judgment.

52.- (1) In the exercise of his functions the Governor shall have the following special responsibilities, that is to say:-

(a) the prevention of any grave menace to the peace or tranquillity of the Province or any part thereof...

(3) If and in so far as any special responsibility of the Governor is involved, he shall,, in the exercise of his functions, exercise his individual judgment as to the action to be taken.

59.-{1) All executive action of <ORG> shall be expressed to be taken in the name of the Governor.

(Sub-section (2) already quoted).

(3) the Governor shall make rules for the more convenient transaction of the business of <ORG>, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under,' this Act required to act in his discretion.

(4) The rules shall include provisions requiring ministers and secretaries to Government to transmit to the Governor all such information with respect to the business of <ORG> as may be specified in the rules, or as the Governor may otherwise require to be so transmitted, and in particular requiring a minister to bring to the notice of the Governor, and the appropriate secretary to bring to the notice of the minister concerned, and of the Governor, any matter under consideration by him which involves, or appears) to him likely to involve, any special responsibility of the Governor.

(5) In the discharge of his functions under Sub-sections (2), (3) and (4) of this section the Governor shall act in his discretion after consultation with his ministers.

27. Rules of business have been framed by the Governor of Bengal under Section 59 , under which it is not disputed that questions of detention fall to be transacted in <ORG>. Under Rule 12 all orders or instruments made or executed by or on behalf of <ORG> are to be expressed to be made by or by order of the Governor of Bengal; and under Rule 13 save in cases of special authorisation, every order or instrument of <ORG> is to be signed by either a Secretary (an Additional Secretary), a Joint Secretary, a Deputy Secretary, an Under-Secretary, or an Assistant Secretary to <ORG>, and such signatures are to be deemed to be the proper authentication of such orders or instruments.

28. In the first place, their Lordships observe that the provisions of Chapter II of Part III of the Act of 1935 as to <ORG> and its executive authority use the term " executive" in the broader sense as including both a decision as to action -and the carrying out of such decision.

29. Counsel for the respondents submitted a contention, which the majority of the learned Judges in <ORG> had accepted, based on Sub-section (2) of Section 49 of the Act of 1935, to the effect that the sub-section limited the operation of the section to matters with respect to which <ORG> has power to make laws, and that the subject-matter of <ORG> was not within those powers. The learned Judges, in confirmation of this view, referred to Sub-section (2) of Section 124 , which provides that An Act of the Federal Legislature may, notwithstanding that it relates to a matter with respect to which <ORG> has no power to make laws, confer powers and impose duties or authorise the conferring of powers and the imposition of duties upon a Province or officers and authorities thereof.

Their Lordships are unable to agree with such a narrow reading of these provisions, which would involve the necessity of <ORG> making provision in each case for the executive machinery to carry out the powers and duties so imposed, instead of using the existing Provincial machinery. This view is supported by Sub-section (4) of Section 124 , which provides inter alia that where an Act; of <ORG>, by virtue of Sub-section (2), confers powers and imposes duties upon a Province or officers and authorities thereof in relation to a matter with respect to which <ORG> has no power to make laws, the <ORG> is to pay to the Province such sum as is agreed, or determined by arbitration, in respect of any extra costs of administration incurred by the Province in connection with exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of <ORG>. Their Lordships construe Sub-section (2) of Section 49 as providing an extensible limit and not a maximum limit, and the provisions of Sub-section (2) of Section 124 as affording a means of such extension. But, further, their Lordships construe the incorporation of the General Clauses Act , both: in the Defence of India Act, and in the. Defence of India Rules, with its reference in <CITATION> to the provisions of Part III of the Act of 1935 as to the acting or non-acting of the Provincial Governor, as necessarily embodying the relevant provisions of Chapter II of Part III, including in particular Section 49 .

30. It is for the same reasons that their Lordships are unable to accept the respondents' contention, also agreed to by the majority Judges in <ORG>, that the provision of Sub-section (5) of Section 2 of the Defence of India Act provides the only means by which the Governor can relieve himself of a strictly personal function. Their Lordships would also add, on this contention, that Sub-section (5) of Section 2 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority defined in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under Section 40(1) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.

31. The respondents next contended that, assuming that a 49 did apply, this question was one which involved a special responsibility of the Governor within the meaning of Section 52(2) , (a) of the Act of 1935, and therefore required the individual judgment of the Governor. In their Lordships' opinion, they are excluded from considering the somewhat debatable question whether the present matter does fall within head (a) of Section 52(2) , by the provisions of Section 50(3) , as the contention of the respondents is that the Governor should have exercised his individual judgment. Nor is it necessary for their Lordships to consider whether " individual judgment" excludes the operation of Section 49(2) .. So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by counselor the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of Section 49(1) , and so far as the decision in <CITATION>  2 Cal. 411 decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the <ORG>, the provisions of Section 91 as to the appointment, payment and dismissal of ministers, and Section 59(3) and (4) of the Act of 1935, and the business rules made by virtue of Section 59 , place beyond doubt that the Home Minister is an officer subordinate to the Governor.

32. Their Lordships are therefore in agreement with the learned Chief Justice of <ORG> that such matters as those which fell to be dealt with by the Governor under Rule 26 could be dealt with by him in the normal manner in which the executive business of <ORG> was carried on under the provisions of Chapter II of Part III of the Act of 1935, and in particular, under the provisions of Section 49 and the rules of business made under Section 59 .

33. There remain the criticisms on .the manner in which the individual cases of detention have been dealt with. The six cases with which this appeal is concerned are the cases of respondents Nos. 1, 3, 5, 6, 7 and 8. In view of the opinions already expressed by their Lordships, the orders for detention in each of these cases must be taken as ex facie regular and proper, and it follows, as already stated, that there is a heavy burden on the respondents to displace the presumption enacted by Section 16(2) of the Defence of India Act. The respondents were enabled to raise the question as to whether the Governor was bound to give his personal consideration to the matter, by reason of the <ORG>'s admission that he had not in fact done so in any of these cases. They were also able to raise a question as to the so-called routine order of October 1, 1942, because of Mr. <NAME>'s admission in his affidavit. The majority of <ORG> held all the detention orders to be bad because of the first of these admissions, though they also deal with the routine order, and criticise adversely the whole procedure. The learned Chief Justice agreed with the majority as to the cases which were subject to the routine order; he disagreed as to the necessity for the personal satisfaction of the Governor, holding that the procedure authorised by Section 49 was available to the Governor, but he held that the routine order vitiated the orders as to which it operated. One of these three eases-that respondent No. 2, <NAME>, is not before the <ORG>, as he was released shortly after the judgment of <ORG>. On the other hand, as regards the cases of the present respondents Nos. 3, 6, 7 and 8, he stated that he was unable to find in the evidence anything which established even a prima facie case that the orders under Rule 26 had been improperly made or to contradict the accuracy of the narrative of the orders. Thereby he differed from the majority of the <ORG> as regards these cases.

34. The evidence before <ORG> consisted of affidavits by the respondents, the counter-affidavit by Mr. <NAME>, Additional Home Secretary to <ORG>, and certain statements and answers regarding detention under Rule 26 given by the Home Minister, Bengal, in <ORG>. In common with the Chief Justice of <ORG>, their Lordships have been unable to find anything-apart from the routine order-in these statements and answers of the Home Minister which affords evidence of improper procedure in the individual cases before the <ORG>, even assuming that such evidence was admissible, which, in the opinion of their Lordships, was at least open to doubt. It is the evidence of Mr. <NAME> that establishes the application of the routine order in some of these individual cases. Further, there is nothing in the affidavits filed by the respondents which establishes such a prima facie case, and they were not so founded on at the hearing before the <ORG>. The respondents' case was founded on the statements and answers by the Home Minister, as to which their Lordships have expressed their view above, and Mr. <NAME>'s counter-affidavit, which their Lordships will now consider.

35. In paragraph 8 of his affidavit Mr. <NAME> states that on October 1, 1942, the Home Minister directed that, on receipt of the report of arrest under Rule 129 of the .Defence of India Rules together with a recommendation by the <ORG> for detention under Rule 26 in respect of persons arrested in connection with the disturbances or suspected of being so connected, orders of detention under Rule 26(I) (b), should at once be issued as a matter of course subject to review by <ORG> on receipt of further details to be supplied in each case by <ORG>. That clearly meant the substitution of the recommendation by the <ORG> in place of the satisfaction of the Governor prescribed by Rule 26, and equally rendered any order under Rule 26 in conformity with the Home Minister's direction, to which their Lordships have already referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of Rule 26. Their Lordships now turn to the cases before them, to which the routine order applied, and they quote the statement of Mr. <NAME> with regard to the first of these two cases, that of respondent No. 1.

10. <NAME>: He was arrested by the Police under Rule 129 of the Defence of India Rules on 20th October, ,1942. On 27th October, 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under Rule 26(1) (b) of the Defence of India Rules. On receipt of fuller materials the case was later submitted for consideration of the Honourable Home Minister.. Bengal, from whom no order directing withdrawal or modification of the order of detention was received.

36. Their Lordships are unable to read Mr. <NAME>'s statement that he had considered the materials before him as involving anything more than that he had considered the report of the arrest and the recommendation of the. Police to see if there was material sufficient to justify the issue of an order under the routine order. It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before him so as to satisfy himself, independently of the police recommendation, that an order under Rule 26 should be issued. That would not be in accordance with the requirement of the routine order that-the police having recommended it-the order of detention should be issued as a matter of course. Further, the inaction of the Home Minister on the later submission of the fuller materials to him could not cure the invalidity of the order of October 27, 1942.

37. The case of <NAME>, Despondent No. 5, is stated in paragraph II of Mr. <NAME>'s affidavit, and is substantially the same as that of respondent No. 1. The order in his case was issued by Mr. <NAME> on March 8, 1943, and no further materials had been received at the date of the affidavit, May 24, 1943.

38. Their Lordships agree with the unanimous conclusion of <ORG> that the orders of detention in the cases of the present respondents Nos. 1 and 5 are invalid.

39. There remain the cases of respondents Nos. 3, 6, 7 and 8. The orders of detention in these cases were earlier in date than the routine order of October 1, 1942, and are not affected thereby, As their Lordships have already stated, there is no evidence in these cases sufficient to rebut the presumption as to their regularity. There is only one point on which their Lordships desire to add an observation. In paragraphs 2, 3 and 4 of his affidavit Mr. <NAME> states that in the cases of <NAME>, present respondent No. 3, <NAME>, present respondent No. 8, and <NAME>, present respondent No. 7, he himself considered the materials supplied and, in fact, the orders of detention were signed by him. In the case of <NAME>, present respondent No. 6, Mr. <NAME>, in paragraph 6 of his affidavit, does not say by whom the case was considered. The order of detention is signed by <NAME>, Deputy Secretary to <ORG>. This is a case typical -of the application of the presumption, and, if the respondents had wished to probe the matter, in case the consideration might have been by someone not qualified as an officer subordinate to the Governor within the terms of 9. 49 of the Act of 1935, they should not have let the matter rest there, but proceeded either by counter affidavit or by cross-examination of Mr. <NAME> on his affidavit. As they did not take such a course, the presumption remains; undisturbed.

40. Accordingly, their Lordships agree with the Chief Justice of <ORG> that the orders of detention in the cases of respondents Nos. 3, 6, 7 and 8 were valid, and the appeal of the <ORG> will be allowed in the case of these four respondents. Counsel for the <ORG> stated to their Lordships that, without prejudice to any further action under Rule 26 that the <ORG> may find it expedient or necessary to take, it was not intended that any further action should be taken against these four respondents under the particular orders which are before the <ORG> in this appeal.

41. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed as respects respondents Nos. 3, 6, 7 and 8, and the judgments and orders of the <ORG> below should be set aside, and that it should be declared that the order of detention under Rule 26 of the Defence of India Rules in each of these cases was a valid and proper order; that in the case of respondents Nos. 1 and 5 the appeal should be dismissed and the judgments and orders of the <ORG> below should be affirmed. There will be no order as to costs.


<CITATION> )

1. According to the appellants <ORG> they manufacture pilfer proof caps falling under T.I. 12 CET as also aluminium tear-off vial seals and aluminium tear-down vial seals, falling under T.I.-68 CET. In respect of the pilfer proof caps they were claiming exemption under notification 83/83 and in respect of the other aluminium vial seals they were claiming exemption under notification 77/83. In respect of these aluminium vial seals the department had a doubt on the classifiability under TI 68 but, subsequently, the Assistant Collector under order dated 8-10-1980 settled their classification under TI 68 CET.

2. After a visit to their factory on 21-1-1985 during the course of which 3,31,000 pieces of tear-off and tear-down vial seals were seized under the belief that they are classifiable under TI 42 CET and not under TI 68 CET, action was initiated by issue of notice dated 6-6-1985. It was alleged that as these seals had been manufactured and cleared without payment of duty under TI 42 CET the appellants had contravened various rules and had made themselves liable for penalty, confiscation and demand of duty. After the appellants had sent their reply an adjudication was held by the Collector of <ORG> (Now Bombay-Ill on reorganisation) in which he held that the vial seals were classifiable as pilfer proof caps under TI 42 CET and the charges against the appellants were therefore made out. But he restricted the demand to the normal period under Section 11-A of the Central Excises and Salt Act . It is against the said order of the Collector dated 24-12-1985 that the present appeal has been preferred.

3. We have heared <NAME>, Advocate for the appellants and <NAME>, JCDR for the department.

4. Samples drawn of the products in question as manufactured by the appellants as also by another manufacturer were also produced for our perusal during the course of our hearing.

5. The contentions of the appellants stated in short are that :-

(i) The aluminium vial seals in question are not caps at all but only seals and therefore there is no question of these products being pilfer proof caps;

(ii) These seals are not known as pilfer proof caps in the trade;

(ill) Reliance of the Collector on two earlier decisions of this Tribunal is misplaced since in one of them the party was not represented and the other did not deal with a product similar to the product in question;

(iv) the classification of the product having been approved by the Assistant Collector the same cannot in law be disturbed by the Collector except by way of proceeding in review;

(v) the Collector had no jurisdiction to confirm the demand under Section 11-A of the Act as it then stood;

(vi) the confiscation of the goods was in any event not called for; and

(vii) the demand as confirmed was in any event in excess of the period prescribed in Section 11-A of the Act.

6. As mentioned earlier there is no dispute regarding the classifiability under TI 42 CET of the screw down caps manufactured by the appellants which they themselves have classified under TI 42 as pilfer proof caps. The dispute relates to tear-off and tear-down aluminium Seals manufactured by them. The tear-off seals are to be used in injection glass vials, the tear-down seals being used in other glass or plastic bottles meant to contain tablets, powder, capsules etc. Shri <NAME> contended that the function to be performed in case of tear-down seals are (i) to hold the plastic cap in position; (ii) to provide decorative packaging and (iii) to prevent accidental spilling of the contents or cap during handling. In respect of the tear-off seals he claimed that the functions were (i) to hold the rubber plug in position; (ii) to prevent spillage of the contents during handling and (iii) to prevent contamination of the plug or the contents. Therefore in effect he stated that while these tear-off and tear-down seals may contribute towards safety from pilferage, their main function was not that and that these being in the nature of seals only and not caps they could never be classified as pilfer proof caps.

7. The relevant tariff entry reads "pilfer proof cap for packaging, all sorts, with or without washers or other fittings of cork, rubber, polythene, or any other material".

8. Before the Collector as well as before us the appellants have relied on the definition of pilfer proof caps in the Glossary of terms relating to metal containers trade published by <ORG> (IS: 1394-1973). It will be convenient at this stage to extract the definition of not merely pilfer proof caps but other definitions also therein. They are :-

Bung - A fitting used to seal a sheet-metal container, usually a metal plug provided with threads to fit a screwed flange.

Cap - A light gauge metal or plastic cover used to seal the neck or opening of a container.

Inner Seal - Refers to paper, foil or cork used to line the inside of a general line cap closure.

Lid - The detachable closure component defined precisely by qualification, for example, slip lid, screw, cap, etc. Pilfer proof caps - Screwed on closure with integral pilfer proof arrangements.

Plug - A metal stamping fitted into a neckor orifice.

Screw Cap - A screw-on (rolled thread) cap incorporating a sealing wad or liner and used in conjunction with an appropriate screwed neck.

Washer - A disk or cork or other soft material inserted in the cap to ensure leak-proof seal.

9. Thus so far as pilfer proof caps are concerned the <ORG> definition makes it clear that these are screw on closures with integral pilfer proof arrangement. It is explained for the appellants that these are caps that get separated into the bottom and top portions when the caps are opened so that telltale evidence is left behind of the fact of the cap having been opened to get at the contents. Further a cap would be a metal or plastic object to seal the opening of the container and the same would be available for use time and time again for the same purpose, whereas a tear-off or tear-down seal would get destroyed the moment the seal is broken and could not be used again for preserving the contents thereafter. That is to say they would be of one time use only and cannot be reused periodically. This very circumstance, it appears to us, would establish that these seals are not caps much less pilfer proof caps.

10. <NAME> contends that these seals safe-guard and, evidently, provide protection against tampering and they would therefore be pilfer proof caps. This argument overlooks the fact that in order that the product may be described as a pilfer proof cap it must first be a cap. A seal would not be a cap since it cannot be reused after opening. <NAME> contends that in view of the words used in the entry such an argument cannot be accepted. He says that as T.I. 42 is worded the presence or absence of washer and other fittings would not be material and therefore the seal even without the rubber plug beneath the same would still be a pilfer proof cap. We are unable to accept this contention. The washer or other fittings referred to in the entry, in our opinion, refer to the inner seals of paper, foil, or cork used to line the inside of a cap closure. In the case before us the rubber plug beneath the seal would be the cap itself and not the washer or other fitting.

11. <NAME> relies upon two earlier decisions of this <ORG>, both of which have been referred to and relied upon by the Collector also in his order. They are in the case of <ORG> (1983 ELT 2506) and <ORG> (1983 ELT 1163). It is pointed out for the appellants that the assessee went unrepresented in the case of <ORG> and therefore the arguments now advanced were not put before the <ORG> and had therefore not been considered. On the perusal of the judgment we find that this aspect of the case, that seals would not be caps at all, had not been raised by the assessee and had therefore not been considered by the <ORG>. So far as the case of <ORG> it is clear that the product concerned in that case was not the product in issue before us. That case dealt with cap-seals used for sealing of drums and not vial seals. The definition of the cap seal in 1S:1394-1973 is as follows :-

"Capseal (Drums) - A light gauge metal closure component fitted over the primary seal (for example, inner plug, lever cap or cork shives); may be paper lined on the underside, usually applied by rolling-on with special tool".

No doubt reference has been made in that judgment to the definition of pilfer proof caps in 15:1394-1973 but it has been observed that in the absence of any definition of the terms pilfer proof cap in the tariff entry the entry has to be given widest meaning particularly in the context of the qualifying word "all sorts". But in the light of the discussion earlier, especially that relating to the fact that a seal would never be a cap, it appears to us that the ratio of the said decision, which dealt with cap-seals for drums, should not be taken to apply to the facts of the instant case.

12. In the light of the above discussion we are satisfied that the tear-off and tear-down vial seals manufactured by the appellants, and which are the subject matter of the present appeal, would not be pilfer proof caps for the purposes of levy of duty under Tl 42 CET.

13. Shri <NAME> further contended that in any event the order of the Collector must fail on two other grounds. The first was that the Collector had no jurisdiction to go into the matter since the Assistant Collector had already once gone into the matter and given a finding that these seals are to be classified under Tl 68 GET and, in the absence of any further or better material, the Collector was not entitled to come to a different conclusion except by way of review under the provisions of Section 35-A of the Central Excises and Salt Act as it then stood.

From the order of the Collector we find that no other material than was available to the Assistant Collector earlier had been placed before the Collector. The process of manufacture continued to be the same and the use to which the product was being put also continued to be the same. In view of the said circumstances we agree with the learned counsel that the Collector had no jurisdiction to differ from the earlier conclusion of the Assistant Collector except by way of taking proceeding for review of the earlier order under Section 35-A .

14. Shri <NAME> further contends that so far as the demand for payment of duty is concerned the Collector had no jurisdiction under Section 11-A to do so. As pointed out by him, Section 11-A conferred jurisdiction on the Assistant Collector to determine the amount of duty in terms of notice issued earlier by the proper Central Excise Officer. The jurisdiction was thus conferred on the Assistant Collector only as the Section stood at the relevant time. It was only on and after 20-12-1975 (20-12-85 ?) that, under the provisions of Section 3 of Act 79 of 1985, the said power of the Assistant Collector could have been exercised by the Collector also. It is true that under Rule 6 of the Central Excise Rules the Collector may perform all or any of the duties or exercise all or any of the powers assigned to an Officer under the Central Excise Rules. This empowering of the Collector would relate only to powers exercisable by any other Officer under the Rules and not under the Act. <NAME> contends that it is a well recognised principle of administrative law that what a subordinate could do his superior could always do. He therefore contends that what an Assistant Collector could do under the provisions of the Act the Collector as his superior could also do. We are unable to accept this proposition in the absence of any provision in the Act itself, as distinguished from the provision in the Rules, to this effect. Therefore, we are convinced that so far as demand for duty is concerned the Collector had no power in the instant case.

15. <NAME> in this connection refers to the fact that the demand had been raised under Rule 9(2) also. But we are satisfied that no demand could have been raised under Rule 9(2) since the manufacture and clearances were in pursuance of an earlier order of the Assistant Collector in terms of which the goods in question were classifiable under TI 68 CET and under that classification the goods were exempt since the exemption limit of clearances had not been crossed. In the absence of any suppression or mis-statement of facts the demand could not be raised under Rule 9(2).

16. <NAME> contends that the order for confiscation of the seized goods was also not proper. As already seen, the manufacture and clearances were in terms of the earlier order of the Assistant Collector under which the goods were classifiable under TI 68 CET and were exempt in view of the clearances not having crossed the exemption limit. In view of the above circumstances there had been no case made out of wilful infraction of any statutory provision making the goods liable for confiscation. We therefore hold that the order for confiscation was also not proper.

17. In the light of the above discussion we hold that the order of the Collector is liable to be set aside on the several grounds discussed earlier. Accordingly this appeal is allowed and the order of the Collector is set aside with consequential relief, if any.

Sd./-

New Delhi (V.T. Raghavachari) 11-12-1986 Member 11-12-1987 <NAME>, Vice President

18. I have carefully perused the order written by learned brother <NAME>. 1 agree with his conclusion and finding (reference paragraph 12 of his order) that the tear-off and tear-down vial seals manufactured by the appellants would not be pilfer-proof caps for the purpose of levy of excise duty under Item No. 42 of the Central Excise Tariff Schedule.

19. In the above view of the matter, it does not appear to be necessary, in my opinion, to consider the other contentions raised by <NAME>, Counsel for the appellants (and discussed in para 13 and 14 of <NAME>'s order) and I do not propose to go into them.

20. I also agree that Rule 9(2) has, in any event, no application to the facts of the present case. Further, the confiscation ordered by the Collector was not proper in the instant case.

21. I, therefore, agree that the appeal should be allowed setting aside the order of the Collector with consequential relief, if any.

Sd./-

New Delhi (G. <NAME>) 11-12-1986 Vice-President <NAME>, Member (T) 22. I agree with brother <NAME>. 23. Appeal be allowed with consequential relief. Sd./- (<NAME>) Dated : 26-3-1987 Member FINAL ORDER

"The Order bearing No. 954/86-D, dated 11-12-1986 issued by the <ORG> as disposing of this appeal had been recalled vide Misc. Order No. 93/1987-D, dated 26-3-1987. Thereafter, the present order is being issued by the Bench disposing of the appeal."


ORDER <NAME>, J.

1. This petition under Article 226 of the Constitution of India presents yet another dimension of the doctrine of estoppel -- which as the judicial decisions demonstrate, has many facets.

2. The petitioner, the owner of <ORG>, Cannanore, approved by <ORG> of the Government, seeks to compel the respondents to pay Rs. 5.03 lakhs of subsidy under the Central Investment Subsidy Scheme, promised under the letter No. FC.F3/32598/89 dated 28-9-1989 (Ext. P2) written on behalf of the respondents 1 and 2, who are respectively, the State of Kerala, and the General Manager of <ORG>. The respondent No. 3 is the Union of India. The facts are set out in paragraphs 3 to 6 below.

3. According to the petitioner, the respondents 1 and 2 .by their letter No. FC.F3/ 32598/89 dated 28-9-1989 (Ext. P2) and acting under the Scheme promised that the amount of Rs. 5.03 lakhs will be released to the petitioner through <ORG>, Cannanore, towards the aforesaid subsidy.

4. The 10-15% Central Investment Subsidy Scheme of 1991 (Ext. R3(c)) -- the Scheme -- came into force on 26th August, 1971 and the valid during the period of the Fourth Five-Year plan. Thereafter it was extended from time to time. The last such extension of its duration was from 1st April, 1988 to 30th Sept. 1988. (Ext. R3(b) Notification). The scheme ceased to exist from 1st October, 1988. The object of the scheme was to encourage development of industries in certain backward areas.

The substance of the scheme in so far as is relevant to this case is as under:

The industrial units duly registered with the concerned department of the <ORG>, may apply for grant of subsidy based on their project reports, submission of the details of the project, assets required, letter of sanction from the financial institution, sanctioning the loan and so on.

<ORG> constitutes a committee known as <ORG> -- <ORG> for short -- consisting of the Secretaries to <ORG> in <ORG> and <ORG> and other officers. The authority to decide whether the industrial unit qualifies for the grant of subsidy belongs to the <ORG> It is the <ORG> that determines the quantum of the subsidy. The limit of the authority of the <ORG> to determine the quantum is 15% of the value of investment up to a maximum of Fifteen lakhs rupees. The <ORG> has the over all authority over the disbursing agencies, like the respondent No. 2, who disburse the amount of subsidy sanctioned by the <ORG> After disbursing the amount of subsidy, the agency prefers a claim with the <ORG> for reimbursement of the amount disbursed. The respondent No. 2 is such a disbursing agency.

It is the Central Government that finally disburses the amount of subsidy to the S.L.C.

The <ORG> sanctions and the disbursing agency pays the amount of subsidy to the industrial unit. It is only, thereafter, that <ORG> disburses to the agency the amount paid by it.

5. The petitioner applied for grant of central subsidy under the scheme. The application was made before 30th Sept. 1988 while the scheme was in force. It was scrutinised by <ORG>. But the <ORG> did not sanction the subsidy while the scheme was in force. The "sanction" was accorded by the letter No. FC.F3/32598/89 dated 28-9-1989, when the scheme was not in force. The <ORG> who "sanctioned" the central subsidy, was a creature of the scheme. When the scheme ceased to be in force on 1st October, 1988, the <ORG> too ceased to exist.

6. Counsel for the petitioner based his case on the "promise" contained in the letter No.FC.F332598/89 dated 28th Sept. 1989, written by the <ORG> By this letter the <ORG> informed the petitioner that the <ORG> at its IVth meeting of 1989 held on 27-9-1989 sanctioned a subsidy of Rs. 5.03 lakhs payable through <ORG>, Cannanore.

The only point urged by learned counsel for the petitioner is that the respondents 1 and 2 and their agency, the <ORG>, on whose promise, the petitioner acted, are estopped from withholding or denying to the petitioner of the amount of subsidy.

7. The undisputed facts are these:

(i) The petitioner relied upon the scheme and expected that he would be granted the subsidy.

(ii) Acting on the letter dated 28-9-1989 (Ext. P2) the petitioner executed the requisite agreements and deposited Rs. 25,000=00 in <ORG> account as required by the respondents Nos. 1 and 2.

The arguments proceeded on the assumption that the petitioner, acting on the aforesaid letter, altered his position.

8. The basic principles of the doctrine of estoppel may be summarised.

Where a promise is made with the intention that the other party should act upon it, the promisor can be compelled to keep his word, if the promisee has acted upon the promise. The promise need not prove that, acting on the promise, he suffered prejudice, detriment or damage, <CITATION> .,  : (AIR 1979 SC 621). However, the indispensable requirement of the rule of estoppel is that the promise altered his position <CITATION> , AIR 1987 SC 2414. The doctrine applies to all public authorities including public corporations. Such corporation can be compelled to perform their obligations arising from a promise made by them. <CITATION> ., AIR 1983 SC 848.

In the application of the doctrine of estoppel the limitations of its application cannot be lost sight of. The doctrine is not applicable irrespective of the circumstances in which the promise was made and the situations which it was intended to meet. In public law the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not, in law, possess. In other words, no estoppel can legitimise action which is ultra vires Administrative Law --<NAME>, Fifth Edition, Page 233. For instance, where an electricity authority, by misreading a meter, undercharged its customer, it was held that the accounts it delivered did not estop it from demanding payment in full. The reason is that the authority had statutory duty to collect the full amount and had no power to release the customer, expressly or otherwise. Administrative Law -- <NAME>, Fifth Edition, page 233. Secondly, the promisor cannot be compelled to perform his promise if it is inequitable to do so. <CITATION> ., (1979)2 SCC 409 : (AIR 1979 SC 621). Since the doctrine is an equitable doctrine the promisor will not be bound to fulfil the promise if it is shown that equity lies in his favour <CITATION> .,  : (AIR 1979 SC 621). Thirdly, promisory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power in the officer of the Government or the public authority to make <CITATION> .,  : (AIR 1979 SC 621); (b) Vasanat kumar <CITATION> , AIR 1991 SC 14).

A fifth limitation arises where Government's policy is concerned. Where Government changes its policy resulting in refusal to fulfil the promise, no estoppel arises. Many people may be victims of such reversal of policy. But estoppel cannot be allowed to hinder the formation of policy, <ORG> v. <ORG>, (1977 QB 643, <ORG>).

9. In considering whether the respondents 1 and 2 are estoppel from denying the payment of subsidy, two striking facts about the promise contained in the letter by the <ORG> dated 28-9-1989 (Ext. P2) must be borne in mind:

(i) The scheme under which the <ORG> derived its authority to sanction subsidies to Hotel Industry ceased to exist on 1st October, 1988. Consequently, the <ORG> a creature of the Scheme ceased to exist with effect from 1 st October, 1988.

(ii) As a corollary, it follows that the sanction of the subsidy -- the promise -- was made by a body which had no authority to make it.

10. In view of the two facts set out in paragraph 9 above, the promise by the <ORG> becomes without authority and estoppel cannot be invoked to legitimate action which is ultra vires. Realising that the <ORG> had no legal existence after 1st October, 1988 making its promise unauthorised, learned counsel for the petitioner called in aid the judgment in <NAME> v. Minister of Pensions (1949) 1 KB 227. The circumstances in which the doctrine of estoppel was applied explain the rationale of the judgment. <NAME>, a colonel in the <ORG> suffered a permanent physical disability during the war in 1940. Two departments of the <ORG>, <ORG> and <ORG>, were concerned with the grant of pension to <NAME>. <NAME> based his claim on the certificate of disability issued by the <ORG> Medical Board. The Director of <ORG> of <ORG>, on 8th April, 1941 wrote to <NAME> that "your case has been duly considered and your disability has been accepted as attributable to military service." The acceptance of attribut-ability of the disability to military service entitled <NAME> to pension. But the letter dated 8th April, 1941 was written without even consulting the Department of Pensions who declined to pay. If the war office were to hold that the disability was not attributable to war service, <NAME> would have obtained independent medical opinion which he did not do. He thus altered his position, acting on the letter from the Director of <ORG>. <ORG> made these findings:

(i) <NAME>, an officer in the <ORG> who naturally dealt with the war office was entitled to assume that the war office had issued the letter after consulting <NAME>.

(ii) The war office assumed authority over the matter and made the assurance contained in the letter dated 8th April, 1941, which, in the circumstances, was authoritative decision intended to be binding and intended to be acted upon.

(iii) The citizen is not expected to know the limits of the authority to make the promise.

(iv) If <ORG> in its dealings with a subject takes upon itself to assume authority upon a matter with which he is concerned, he is entitled to rely upon it.

(v) The war office is an agent of the <ORG>. Its letter binds the <ORG> through whom it also binds <NAME>.

11. There are clear features which distinguish <NAME>'s case with the case which I am called upon to decide. The assurance by the war office was held authoritative, as <NAME>, an officer in <ORG> naturally looked to the war office to whom he was subordinate. The relation was of employer and employee. In the present case, there is no such relationship between the petitioner and the <ORG> Secondly, the <ORG> was held bound by the promise by the Director of Personnel Services, irrespective of whether the latter acted within his authority. In this case <ORG> which provides the funds for disbursement of the subsidy is not bound by the sanction by the <ORG> unless it acts within the scheme. Thirdly, it has not been held in <NAME> that a promise by a department who lacks the authority to certify attributability to military service, by itself estops the <ORG>. <NAME>, <NAME> construed the circumstances such as the relationship between the Minister of War, and the Minister of Pensions or. the one hand, and the <ORG> on the other, and read in the letter an authority in the war office to make the promise. A fourth distinguishing feature is that whether the Ministry of Pension had authorised it or not, the <ORG> was held bound by what the war office promised.

While these distinguishing features are sufficient to make, <NAME>, <NAME> v. Minister of Pensions, (1949) 1 KB 227 inapplicable to the facts of the case before me they do not end the matter. The question of authority of the promisor continues to raise its head and demands an answer. The assumption of authority by the Director of Personnel Services of the war office, was the dominant feature of the case. By analogy, it has been urged that <ORG> too assumed such authority when it sanctioned the subsidy. But this argument is not tenable. The war office has continued authority to deal with cases of the members of the armed forces. Its authority did not flow from a temporary scheme nor was It limited by time, as in this case. Secondly, the war office was not altogether without authority to determine the cases of pensions of the army personnel. Its letter would have been authoritative if <ORG> had concurred with it. In <NAME>, the question of authority arose because the letter was written without the concurrence of or consultation with <ORG> who was concerned with the payment of pensions. In the case of <ORG>, it cannot be said that it would have acquired the authority to sanction the subsidy, if it had consulted any other department of the <ORG>. A close scrutiny of the case of <NAME> and this original petition shows that the rule laid down in <NAME> is not applicable, to the circumstances of this case.

12. I will now examine the validity of the principle laid down in <NAME>, <NAME> v. Minister of Pensions, (1949) 1 KB 227. For this purpose I will examine whether the principle is accepted in England. The basic postulate of <NAME> was that where <ORG> wrongfully assumes authority to perform some legal act, the citizen is entitled to assume that it has that authority Adminsitrative Law -- <NAME>, Fifth Edition Page 342. The British judicial decisions have not accepted this proposition. When the same proposition was repeated by <ORG> in a later case, <ORG> repudiated it in these words:

"..... I know of no such principle in our law nor was any authority for it cited. The illegality of an act is the same whether, or not the actor has been misled by an assumption of authority on the part of the Government officer however high or low in the hierarchy"

<NAME> v. <ORG>,(1951 AC 837).

If the promise by an official who has no legal power is given the force of law, ultra vires acts will gain legitimacy which is a negation of the fundamental canons of administrative law Administrative Law -- <NAME>, Fifth Edition, Page 345. Where a public authority without having real or ostensible authority sold the property of the <ORG>, it was held that the <ORG> was not bound by the sale. The burden of ascertaining whether the officer has such authority is on the purchaser A.G. For Ceylon v. <NAME>, (1953 AC 461 at page 480).

In <ORG>, <ORG> Ltd. v. <ORG>, ((1981) 2 All ER 204), the planning officer without having the authority, stated that <ORG> had the existing user right in respect of the site in question and that the District council who had the statutory authority would grant planning permission. Acting on the planning officer's statement <ORG> proceeded to renovate and rebuild the old buildings. <ORG> in exercise of its statutory authority rejected the applications for established use certificates and issued stop notices. It was held that since there was nothing apart from the position held by the Planning Officer on which the <ORG> could have assumed that the officer could bind the council, the council was not estopped by anything the planning officer had said, from refusing the applications by <ORG>.

13. The analysis of the law in England made in the last paragraph may be summed up.

<ORG> in <NAME>, <NAME> v. <ORG>, 1951 AC 837, expressly and emphatically rejected the proposition laid down in <NAME>, <NAME> v. Minister of Pensions, (1949) 1 KB 227. In A.G. for Ceylon, A.G. For Ceylon v. <NAME>, 1953 AC 461 at page 480, the sale of <ORG>'s property by an officer having no authority was held not binding on the <ORG>. This judgment is a rejection of the claim of legitimacy by ultra vires acts. <ORG>, <ORG> Ltd. v. <NAME> D.C., (1981) 2 All ER 204 also demonstrates that unauthorised promises do not create estoppel.

<NAME>, J. assumed that the citizen is not expected to know the limits of the authority to make promises. Considerations of hardship to the citizen led him to this conclusion. But in A.G. for Ceylon, A.G. For Ceylon v. <NAME>, 1953 AC 461 at page 480 this very proposition was rejected.

I therefore conclude that <NAME>, <NAME> v. Minister of Pensions, (1949) I KB 227 which has been rejected in England does not lay down the correct law. Its assumption that an unauthorised promise creates estoppel is contrary to the fundamental principle of administrative law that estoppel cannot be invoked to legitimise ultra vires actions. Again the proposition that a citizen is not expected to know the limits of the authority of an officer to make the promise tends to legitimise unauthorised promises. To hold that a citizen, acting on an unauthorised promise without enquiring into the limits of such authority, can bind a public authority, is to create a power which does not exist.

14. In the present case the <ORG> wrote the letter dated 28-9-1989 (Ext. P2) at a time when the scheme which created the <ORG> was not in force. The termination of the scheme with effect from 1-10-1988, automatically terminated the <ORG> The "promise" or "sanction" contained in the letter dated 28-9-1989 (Ext. P2) was therefore an assurance by a non-existent body. Even if the existence of the <ORG> is assumed, the letter dated 28-9-1989 (Ext. P2) was without the authority of the scheme. The "sanction" or "promise" was ultra vires of the authority of the <ORG> and therefore no estoppel arises out of such a promise. The submission of the petitioner that the respondents are estpped from denying the payment of the subsidy is without merit.

15. In view of my conclusions recorded above it is not necessary to consider whether equity lies in favour of either of the parties.

16. The petition is dismissed.


PETITIONER: PURSHOTTAM DAS Vs. RESPONDENT: SMT. RAJ MANI DEVI DATE OF JUDGMENT: 30/10/1968 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. CITATION: 1970 AIR 763 1969 SCR (2) 588 ACT: U.P. (Temp.) Control of Rent and Eviction Act 1947, ss. 3 and 7F--Rent Control Officer permitted institution of suit for ejectment--Suit filed--Commissioner revokes permission--State Government allows filing of suit--Defence for ejectment passed--Effect. HEADNOTE: The respondent-landlord obtained permission to institute a suit from the Rent Control & Eviction Officer under s. 3(1) of the U.P. (Temp.) Control of Rent and Eviction Act , 1947, for ejecting from his house the Appellant-tenant. The respondent filed a suit for eviction against the appellant. Later the Commissioner acting under s. 3(3) revoked the permission But <ORG> on March 30, 1963 acting under s. 7F set aside the Commissioner's order and gave leave to the respondent to file the suit after 4 months of the date of the order i.e., July 30. 1963. On July 11, 1963 the trial court decreed the suit. The appellant filed an appeal. The appellate court set aside the trial court's decree and remanded the suit for fresh trial. On remand, the trial court decreed the suit on March 2, 1964 holding that the permission granted by <ORG> became effective from July 30, 1963 and as the suit was. still pending a decree could be passed in the suit. This decision was affirmed by the first appellate court, and also by <ORG>. Dismissing the .appeal this Court. HELD: If <ORG> acting under s. 7F sets aside the order of the Commissioner revoking the permission. the order under s. 3(1) granting permission is revived. The 'result is that there is an effective permission to institute the suit under s. 3(1) and the suit is validity instituted. [578 D] The direction of the 'State 'Government to file the suit after four months of the order meant that the permission under s. 3(1) would become effective on the expiry of 4 months i.e. from July 30, 1963. The landlord had thus an effective permission to institute the suit under s. 3(1) from July 30, 1963. The decree in the suit was passed on March 2. 1964. On that date the landlord had a valid permission to institute the suit. The suit was therefore maintainable. [578 <CITATION> ,  2 S.C.R. 297, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1449 of 1966.

Appeal by special leave from the judgment and decree dated April 28, 1966 of <ORG> in Second Appeal No. 289 of 1965.

<NAME>, <NAME> and <NAME>, for the appellant.

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

The Judgment of the Court was delivered by <NAME>, J. The appellant is the tenant and the respondent is the landlord of House No. 5B, Old 122 Maya Mirganj, Allahabad. The appeal arises out of a suit for ejectment by the landlord against the tenant from the house. On October 11, 1961, the landlord obtained permission to institute the suit from the Rent Control and Eviction Officer under s. 3 (1) of the U.P. (Temp.) Control of Rent and Eviction Act , 1947. On October 14, 1961 the landlord instituted the present suit for eviction against the tenant. On March 27, 1962 <ORG> acting under s. 3 (3) revoked the permission to institute the suit. On March 30, 1963 <ORG> acting under s. 7F set aside the Commissioner's order and gave leave to the landlord to file the suit with effect from July 30, 1963. On July 11, 1963 <ORG> decreed the suit. The tenant filed an appeal against the decree. On November 4, 1963 the appellate court set aside the decree and remanded the suit for fresh trial. After the suit went back on remand <ORG> decreed the suit on March 2, 1964. <ORG> held that the permission granted by <ORG> became effective from July 30, 1963 and as the suit was still pending a decree could be passed in the suit. An appeal against the decree was dismissed on November 28, 1964. A second appeal was dismissed by <ORG> on April 28, 1966. The present appeal has been filed by the tenant after obtaining special leave. The sole question in the appeal is whether in the circumstances there was a valid permission to institute the suit under s. 3 (1 ).

<CITATION> (1) this Court held that a suit validly instituted after obtaining permission of the Commissioner under s. 3(3) did not become incompetent if the State Government acting under s. 7F revoked the permission after the institution of the suit. In that case the District Magistrate refused to give permission under s. 3 (1) to. institute the suit. The Commissioner acting under s. 3 (3) set aside the order and granted permission to institute the suit. The suit was decreed by <ORG> on November 2, 1960. The tenant filed an appeal against the decree. During the pendency of the appeal the State Government acting under s. 7F revoked the permission granted by the Commissioner. The Court held that though the order under s. 3(3) was subject to an order under s. 7F the Government's power under s. 7F to revoke the permission granted by the Commissioner became exhausted once the suit was validly instituted.

In support of his contention that the present suit is not maintainable, the appellant relies on the following observations of <NAME>, J. :-

[1969] 2 S.C.R. 297.

"When the Commissioner sets aside the order passed by the District Magistrate granting permission to file a suit for ejecting a tenant, the order of the Commissioner prevails. If he cancels the permission granted by the District Magistrate there is no effective permission left and the suit instituted by the plaintiff without a- waiting his decision must be treated as one filed without any valid permission by the District Magistrate."

Having regard to these observations the present suit though validly instituted after obtaining the permission under s. 3 (1) became incompetent when the permission was revoked by the Commissioner under s. 3 (3). But the order under s. 3 (3) itself was set aside by <ORG> under s. 7F during the pendency of the suit. The question is what is the effect of this order under s. 7F . Now, s. 3(4) provides that the order of the Commissioner under s. 3(3) subject to an order passed by <ORG> under s. 7F . If <ORG> acting under s. 7F sets aside the order of the Commissioner revoking the permission, the order under s. 3 (1) granting permission is revived. The result is that there is an effective permission to institute the suit under s. 3 (1) and the suit is validly instituted.

In <NAME> Case (1) the suit was validly instituted after obtaining permission from the Commissioner under s. 3 (3). <ORG> could not render such a suit incompetent by any order under s. 7F . In the present case the suit was validly instituted after obtaining permission from the Rent Control and Eviction Officer under s. 3 (1). The effect of the order of the Commissioner revoking the permission was that the suit became incompetent. <ORG> acting under s. 7F had power to revise and set aside the Commissioner's order and restore the permission granted under s. 3 (1) so as to make the suit competent.

The order of <ORG> after stating that in the interest of justice the house should be available to the landlord for his use, set aside the Commissioner's order under s. 3(3) . The result was that the order of the Rent Control and Eviction Officer passed .under s. 3 (1) stood restored. The further direction in the order that the landlord "is advised to file a suit for eviction from the house in dispute against the opposite party in a civil court under s. 3 of the Act, which will be applicable four months after the date of the order" really means that the permission under s. 3(1) would become effective on the expiry of 4 months. The landlord had thus an effective permission to institute the suit under s. 3(1) on the expiry of four months from March 30, 1963, that is to say, as from July 30, 1963. The (1)  2 S.C.R. 297.

<NAME>

decree in the suit was passed on March 2, 1964. On that date the landlord had a valid permission to institute the suit. The suit was therefore maintainable.

In the result, the appeal is dismissed. There will no order as to costs.

<ORG> dismissed.


<NAME>, J.

1. The plaintiff and the defendant first party were so-sharers in an estate in which one <NAME> had an occupancy holding Sometime in 1899 or 1900 defendant No. 1 brought a suit against <NAME> and purchased the occupancy holding and has continued to be in possession of the holding which has belonged to <NAME>. There has recently been a Collectorate partition between the plaintiff and defendant No.. 1 and on such partition the lands in question have been allotted to the share of the plaintiff. The plaintiff, taking the view that upon the purchase of the occupancy holding by defendant No. 1 that holding became the bakasht of the plaintiff and defendant No. 1, claimed to be put in possession of the land in dispute. The <ORG> below, agreeing with the view of the plaintiff, have decreed his suit.

2. It is necessary to remember that in dealing with the question we are governed by the Bengal Tenancy Act of 1885 and we have nothing whatever to do with the amendment of the Act in 1907. Now Section 22, Clause (2), of the Bengal Tenancy Act as it existed before the amendment in 1907 ran as follows:

If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or the permanent tenure-holder, it shall cease to exist;but nothing in this sub-section shall prejudicially affect the rights of any third person.

3. The question was debated so far back as the year 1896 as to the position of a co-sharer proprietor purchasing an occupancy holding. It was ruled in the case of <CITATION> 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761 that there is no law which prevents one of the several co-proprietors from holding the status of a tenant under the other co-proprietors of land which appertains to the common estate and that the effect of the purchase by one co-owner of land of the occupancy right is, not that the holding ceases to exist, but only the occupancy right which is an incident of the holding.

4. According to decision of <ORG>, there was nothing in the sub-section inconsistent with the continuance of the holding divested of this right of occupancy which attached to it.

5. The point again came up for consideration before <ORG> in the case of <NAME> v. Sheikh Kachu 33 C. 386 : 1 C.L.J. l; 9 C.W.N. 249 (F.B.). The Full Bench in that case agreed with the decision of <CITATION> 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761. Mr. Justice <NAME> in the course of his judgment pointed out that since the Bengal Tenancy Act contemplated a class of raiyats different from raiyats with right of occupancy, namely, non-occupancy raiyats, and since Section 22 of the Bengal Tenancy Act deliberately stated that the occupancy right shall cease to exist, it followed that the holding did not cease by virtue of the purchase by the co-sharer landlord. In his view the holding still continued notwithstanding the purchase by the co-sharer landlord.

6. Now if this be correct, then something must happen subsequent to the acquisition of the holding by the co-sharer landlord to put an end to the holding. It is suggested that the partition between the co-sharer landlord puts an end to the holding; but in my judgment there is no foundation for this argument in the Bengal Tenancy Act and we have not been referred to any cases which support the argument put before is by the learned <NAME> on behalf of the respondent. I do not desire to express any opinion on the question as to what the position will be tinder the Amending Act of 1907. In my judgment the view taken by the <ORG> below is incorrect, and I would allow the appeal, set aside the judgments and decrees of the <ORG> below and dismiss the plaintiff's action with costs throughout.

<NAME>, <NAME>

7. I agree.