etition (Civil) Nos.

12676 77 of 1985 etc.

(Under Article 32 of the Constitution of India) R.F. Nariman, P.H. Parekh, N.N. Keshwani, Mrs. H. Wahi and R.N. Keshwani for the Petitioners.

408 G.A. Shah, M.N. Shroff, K.M.M. Khan and T.U. Mehta for the Respondents.

The Judgment of the Court was delivered by VENKATARAMIAH, CJ.

The petitioners in these petitions have questioned the validity of a notification issued by the Government of Gujarat on June 26, 1985 in exercise of its powers conferred by Section 15 of the (67 of 1957), herein after referred to as the Act, amending the Gujarat Minor Mineral Rules 1966, hereinafter referred to as the Rules, with effect from 1 7 1985 substituting the original rule 21 of the Rules by a new rule which reads as follows: "21.

Rate of Royality: The holder of a quarry lease or any other mineral concession granted under these rules shall pay royalty in respect of minor minerals, specified in column 2 of the schedule, removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rates respectively specified against them in column 3 of the said schedule.

Provided that: (i) the holder of a Parwana granted under these rules shall pay royalty at the rate of fifty percent of the rate of royalty specified in the said schedule.

(ii) no royalty shall be charged from Nimbha das of village potters who manufacture upto one lakh bricks per year.

(iii) no royalty shall be charged from Nimbha das of village potters if their annual produc tion is not exceeding two lakhs bricks and they supply at least one lakh bricks to the Rural Housing Board or Panchayats.

(iv) Royalty shall be recoverable in whole rupees, fraction fifty paise and above to be rounded upwards to a whole rupee and fraction below fifty paise shall be ignored" and fixing the royalty payable by the lessees in respect of minor minerals known as Black Trap and Hard Murrum at Rs.7 per metric tonne by amending schedule of the Rules which was being levied at Rs. 4 till the date of the said amendment.

409 In order to understand the case of the petitioners it is necessary to set out some other provisions of law governing the case.

The Act was passed in the year 1957 by Parliament to provide for the regulation of mines and development of minerals under the control of the Union and it was made applicable to the whole of India.

Under section 3A of the Act the word 'minerals ' is defined as including all minerals except mineral oils.

Clause (e) of the said section defines 'minor minerals ' as building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government may.

by notification in the Official Gazette, declare to be a minor mineral.

It is not disputed that Black Trap and Hard Murrum are notified as minor minerals.

The Act has made provision with regard to the issue of prospecting licences and mining leases in respect of various kinds of minerals other than minor minerals and the procedure to be followed in that connection in the matter of issue of prospecting licences and mining leases.

Section 9 of the act empowers the Central Government to levy royalty in respect of the minerals which are won by the mining lease holders under the Act at the rates prescribed in the Second Schedule to the Act.

It empowers the Central Government to enhance or reduce the rate of royalty prescribed by the Second Schedule in respect of any mineral subject to the condition that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.

Section 14 of the Act provides that sections 5 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals.

Section 15 as it stood during the relevant time read thus: "15.

(1) The State Government may, by notifi cation in the Official Gazette, make rules for regulating the grant of (quarry leases, mining leases or other mineral concessions) in re spect of minor minerals and for purposes connected therewith.

(2) Until rules are made under sub section (1), my rules made by a State Government regulating the grant of (quarry leases, mining leases or other mineral concessions) in re spect of minor minerals which are in force immediately before the commencement of this Act shall continue in force.

(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub section (1) 410 shall pay royalty or dead rent, whichever is more in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals; Provided that the State Government shall not enhance the rate of royalty in respect of any minor mineral for more than once during any period of three years.

" It is seen from section 15 that the State Government is empowered to make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in re spect of minor minerals and for purposes connected there with.

In exercise of the said power under section 15 the Government of Gujarat promulgated the Gujarat Minor Minerals Rules, 1966 which are referred to as the Rules as stated above.

Rule 21 of the Rules provides for the determination of the rate of royalty payable in respect of minor minerals.

The original rule 21 was substituted by new rule 21 by the issue of impugned notification on 26 6 1985 which provides that a holder of a quarry lease or any other mineral conces sion granted under the Rules shall pay royalty in respect of minor minerals provided in column 2 of the Schedule, removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rates specified in column 3 of the said Schedule.

It is under this notification the rate of royalty in respect of black trap and Hard Murrum was increased from Rs. 4 to Rs.7 per metric tonne.

The rule also provides that the holder of a Parwana granted under the Rules shall pay royalty at the rate of 50 per cent of the rate of royalty specified in the said Sched ule and that no royalty shall be charged from Nimbhadas of village Potters who manufacture upto one lakh bricks per year.

It further provides that no royalty shall be charged from Nimbhadas of villages potters if the annual production is not exceeding two lakh bricks and they supply at least one lakh bricks to the Rural Housing Board or Panchayats.

The validity of rule 21 as it existed prior to the issue of the impugned notification was considered in B.K. Trivedi & Sons and Ors.

vs State of Gujarat and Ors.

, ; as under the said rule the royalty payable in respect of some of the minor minerals had been enhanced.

Originally all lessees had to pay a minimum dead rent in respect of the area covered by a minor mineral lease issued in respect of any minor mineral or the royalty prescribed in respect of quantity of minor minerals owned by him, which ever was higher.

The history of the legislation of the Rule from the year 1986 is set out in detail in the said 411 decision.

Hence it is not necessary to refer to it in detail here.

By the said decision the constitutionality of section 15 of the Act and the validity of a notification issued on June 18, 1981 under which the rate of royalty had been raised was upheld and the writ petitions in which the said validity had been questioned were dismissed.

That decision was rendered on March 5, 1986.

During the pendency of the said petitions in the High Court the impugned notification was issued increasing the royalty payable in respect of Black Trap and Hard Murrum from Rs.4 to Rs.7.

In these petitions the impugned notification issued in the year 1985 is questioned.

Since many of the contentions raised by the parties in respect of the constitutionality of section 15 of the Act and the validity of Rules made thereunder had been considered and the contentions urged by the petitioners against the said rule in those petitions had been rejected, in the present case the petitioners have confined their case only to the following points which according to them had not been considered in the said decision.

Shri R.F. Nariman, learned counsel for the petitioners in some of the petitions had two contentions: 1. that the royalty levied and covered under the Rules should be applied only for mineral development and since the said royalty is being treated as part of the consolidated fund of the State and used for other purposes by the State the levy was bad; and 2.

that the impugned notification in question was in contravention of clause (b) of Article 304 of the Constitution.

The contention of the learned counsel was that under Entry 50 of List II of the 7th Schedule to the Constitution, the royalty recovered by the State Government had to be used only for mineral development and could not be used for any other purpose.

According to him the Act had been passed for purposes of regulation and development of minerals.

He depended upon the language of Entry 50 which reads thus: "taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development" We do not find much substance in this contention.

Re cently a Constitution Bench of this Court has held in The India Cement Ltd. etc.

vs The State of Tamil Nadu etc., [1989] 4 S.C. Judgments Today 190 that the royalty levied on the extracted mineral was in the nature of a tax and it was not in the nature of a fee which could be used 412 only for specific purposes.

Any tax realised by the State Government forms part of the consolidated fund of the State and the said tax can be used by the State Government for any of the purposes to which its executive powers extend subject to any law made by the State Legislature in that regard.

We do not, therefore, find any substance in the above conten tion.

It is no doubt true that the Act is passed for devel opment of minerals, but while discharging its functions relating to development, if the State incidentally allows mining to be carried on in the public interest and levies in that connection a tax, it does not mean that the said tax should be used only for development of minerals and not for other purposes sanctioned by law.

In support of the second contention the learned counsel Shri Nariman argued that notwithstanding anything contained in Article 301 or Article 303 the 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 required in the public interest.

Provided that no Bill or amendment for the purpose of sub clause (b) shall be intro duced or moved in the legislature of a State without the previous sanction of the president.

We do not find that clause (b) of Article 304 has any relevance on the point in question.

No restriction is being imposed on the freedom of trade of the petitioners by the levy of royalty.

The minerals belong to the Government and if anybody wants to have the right as a lessee to exploit the mines in question to the exclusion of all others and to remove the minerals with a view to making profit, he has to pay a royalty imposed in accordance with law.

In the instant case the levy is made under a law made by the Central Gov ernment.

It is not an imposition made by a law made by the State Legislature on which alone the restriction contemplat ed under Article 304(b) applies.

We do not also find much substance in the contention that the levy in question is unreasonably heavy and has been imposed in an arbitrary manner.

The burden of establishing that the levy is unreasonably heavy, is on the petitioners.

It is urged that in the other States the royalty is being levied at the rate of Re. 1 per metric tonne of Black Trap and Hard Murrum and Rs.7 levied in the notification is excessive.

The fact that in other States the royalty is fixed at Re. 1 is not by itself sufficient to hold that Rs.7 per metric tonne is unreasonably high rate of royalty.

In Trivedi 's case (supra) this Court had upheld the levy of Rs.4 per metric tonne which had been fixed in 1981 and in 1985 it was increased to Rs.7.

Having regard to the depreci ation in the value of 413 the rupee and the increase in the cost of ' administration of the State, which is ever increasing, as a welfare State we cannot say that Rs.7 is an unreasonably high rate.

We have taken this view after going through the observations made by this Court in Trivedi 's case (supra) at page 544 where this Court has observed that where a statute confers discretion ary powers upon the executive or an administrative authori ty, the validity or constitutionality of such power cannot be judged on the assumption that the executive or such authority will act in an arbitrary manner in the exercise of the discretion conferred upon it.

If the executive or the administrative authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the courts but the possibility of abuse of power or arbi trary exercise of power cannot invalidate the statute con ferring the power or the power which has been conferred by it.

We do not find that the levy is arbitrarily imposed.

It is obvious that the petitioners are lessees who are exploiting the mining areas for purposes of business and that the royalty in question is ultimately passed on to the consumers.

It is not shown that the business ,of the peti tioners has been adversely affected in such a way that it is liable to be struck down on the ground of arbitrariness.

We do not, therefore, find any substance in the contention urged by Shri Nariman.

In Civil Writ Petition No. 618 of 1987 filed by Jai Sholanath Quarry Works and another, Mr. Keswani, learned counsel for the petitioners contended that the impugned rule 21 which was substituted in the place of the former rule 21 was invalid as it was discriminatory in character.

He con tended that the concession shown in favour of Parwana hold ers was discriminatory and violative of Article 14.

Under clause 1 of the proviso to the impugned rule 21, a holder of a Parwana granted under the Rules has to pay royalty at the rate of 50 per cent of the royalty payable by the lessees and no royalty is payable by village potters who manufacture upto one lakh bricks per year and by the village potters whose annual production was not exceeding two lakh bricks and who supply at least one lakh bricks to the Rural Housing Board or Panchayats.

His contention was that section 15 of the Act which authorised the State Government to make rules in respect of minor minerals does not specifically authorise the State Government to make such discrimination.

We find no substance in this contention too.

It is obvious that a valid classification of persons and things for 414 purposes of imposing any obligation on them would not be violative of Article 14 provided the classification is a reasonable one.

It is well settled that a classification to be valid has to satisfy two conditions: (1) that there is an intelligible differentia between those who are included in the class which is affected by any law or rule and those who are placed outside the said rule; and (2) that there is a reasonable nexus between the classification and the object to be achieved by the rule or law in question.

The Act under the Rules was made for purposes of regu lation and development and conservation of minerals.

It is equally clear that while levying a tax the authority con cerned is entitled to grant concessions and exemptions wherever necessary having regard to the purpose of the Act, the levy of royalty is incidental to the regulation and development of minerals.

Many a time absence of such classi fication may itself result in the invalidation of the law or rule.

Whoever is given an exclusive right to exploit a mine will have to pay some amount by way of return to the Govern ment of India as authorised by entry 50 of List II of the 7th Schedule to the Constitution.

Having regard to the broad policy underlying the Constitution if a concession is shown in favour of the poor and the down trodden, it cannot be said that the exemption or concession is invalid.

According to rule 2(vi)(a) of the Rules a "quarrying Parwana" means a quarrying Parwana granted under these rules to extract and remove any minor mineral from land not exceeding a specified area.

Rule 33 A provides that the competent officer may notify areas of limestone, Black Trap, sand stone and build ing stones for the purpose of grant of quarrying parawana, as he deems fit.

When any area is so notified, no quarry lease shall be granted for such notified area.

Rule 33 B of the Rules reads thus: "33.B. Grant of quarrying Parwana On an application made to the competent officer, he may grant a quarrying Parwana to extract and remove from the specified area within his jurisdiction the minor mineral from a plot not exceeding 2,000 square meters, as may be specified by the competent officer.

The compe tent officer may grant such Parwana in the following priorities: (a) Individual families to Khanias belonging to the Scheduled Castes or the Scheduled Tribes, who do physical work I of excavating minor mineral in the area applied for. 415 (b) Individual families of 'Khanias ' who do physical work in excavating minor minerals in the area applied for.

(c) New individual Khanias who do physical work in excavating minor minerals in any other areas.

" Rule 33 C provides that the lease shall be granted for one year ending 31st December on a payment of a fee of Rs.50 for an area upto 1,000 square meters and Rs. 100 for an area above 1,000 square meters and upto 2,000 square meters.

Thus it is seen that a Parwana can be given only respect of plots not exceeding 2,000 square meters and for a limited period of one year.

It is only in the case of such people who are described in the Rules and who invariably belong to the weaker sections of society the concession is shown under rule 21, whereas the mining lease may be given to persons mentioned in rule 9.

Under rule 18 of the Rules the period of lease in the case of the minor minerals can be for a much longer period, it can be upto 10 years in respect of minor minerals except in the case of ordinary sand, Kankar, Mur ram, Gravel and in the case of Kankar, Murram and gravel a lease can be granted upto three years, and the area or land covered by a mining lease is governed by rule 15 which says that no quarry lease shall be granted for an area exceeding 10 hectares in case of specified minor mineral and 20 hec tares in the case of other minerals.

So a comparison of the relevant rules would show that a larger restriction is imposed both on the area in respect of which a Parwana could be issued and the duration of the Parwana right and as also stated that the persons who take quarrying Parwana are persons belonging to the weaker sections of society and if under rule 21 a concession is shown in their favour it cannot be said that there is no reasonable nexus between the classification for purposes of the proviso to rule 21 to show concession in the matter of payment of royalty and the social policy underlying the Constitution, the statute and the Rules.

The fact that section 15 of the Act does no authorise the State Government to show such concession while promulgating the Rules which are in the nature of subordi nate legislation is also of no consequence.

Since the power exercised is legislative in character the authority which is exercising the said power has the power to make rules equi table by necessary implication.

No express power need to conferred on such subordinate authority in order to make a classification for purposes of implementing the policy of the Act under which the Rules are made.

We do not also agree with the contention that levying of royalty in the State of Gujarat on the minor minerals would impose in any way 416 the freedom guaranteed under Article 301 of the Constitution regarding movement of goods from one State to another for the activity of quarrying does not involve any movement as such.

The mineral may be consumed inside the State and in some cases may latter on be taken outside the State.

But the movement outside the State is not the direct consequence of quarrying.

We do not, therefore, find any substance in any of the contentions urged before us.

These petitions are dismissed with costs.

Each of the petitioners shall pay a sum of Rs.2,000 by way of costs to the State of Gujarat.

Y. Lal Petitions dis missed.

Summary: The Petitioners in these petitions have challenged the validity of a Notification issued by the Government of Gujarat on June 25, 1985 whereby the Gujarat Minor Mineral Rules were amended with effect from 1.7.1985.

Summary: By the said notification, original Rule 21 of the Rules was substituted by a new Rule 21 which provided that a holder of a quarry lease or any other mineral concession granted under the Rules shall pay royalty in respect of minor minerals provid ed in column 2 of the Schedule.

Summary: It is under this Notifica tion that the rate of royalty in respect of Black trap and Hard Murrum was increased from Rs.4 to Rs. 7 per metric tonne.

Summary: The validity of Rule 21 as it stood prior to its amend ment by the aforesaid impugned notification was considered and upheld by this Court on March 6, 1986 in D.K. Trivedi & Sons & Ors.

Summary: vs State of Gujarat & Ors.

Summary: , ; The impugned notification was issued at a time when the Writ Petitions in the aforesaid case were pending in the High Court.

Summary: The increase in the levy of royalty effected by the impugned notification is now questioned in these petitions.

Summary: The Petitioners raised the following contentions viz; (1) That the royalty levied and covered under the Rules should be applied only for mineral development and since the royalty is being treated as part of the consolidated fund of the State and used for other purposes by the State, the levy was bad; and (2) That the impugned notification in question was in contravention of clause (c) of article 304 of the constitution.

Summary: (3) That the impugned notification is discriminatory in character.

Summary: 407 Dismissing the Writ Petitions, this Court, HELD: That Act is no doubt passed for development of minerals but while discharging its functions relating to development, if the State incidentally allows mining to be carried on in the public interest and levies in that connec tion a tax, it does not mean that the said tax should be used only for development of minerals and not for other purposes sanctioned by law.

Summary: [412B] The India Cement Ltd. etc.

Summary: vs The State of Tamil Nadu etc., [1989] 4 SC Judgment Today 190.

Summary: No restriction is being imposed on the freedom of trade of the petitioners by the levy of royalty.

Summary: The minerals belong to the Government and if anybody wants to have the right as a lessee to exploit the mines to the exclusion of others and to remove the minerals with a view to making profit, he has to pay a royalty imposed in accordance with law.

Summary: [412E] In the instant case, the levy is made under a law made by the Central Government.

Summary: It is not an imposition made by a law made by the State Legislature on which alone, the re striction contemplated under article 304(b) applies.

Summary: [412F] If the Executive or the administrative authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the Courts but the possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power or the power which has been conferred by it.

Summary: [413B C] Since the power exercised is legislative in character, the authority which is exercising the said power has the power to make Rules equitable by necessary implication.

Summary: No express power need be conferred on such subordinate authori ty in order to make a classification for purposes of imple menting the policy of the Act under which the Rules are made.


Appeal No. 1671 of 1966.

Appeal from the judgment and decree dated March 31, 1965 of the Madras High Court in Appeal No. 276 of 1962.

M.K. Ramamurthi, Vineet Kumar, L Ramamurthy and Shyamala Pappu, for the appellant.

A.V. Rangam, for the respondents.

425 The Judgment of the Court was delivered by Ramaswami, J.

This appeal is brought by certificate from the judgment of the Madras High Court dated March 31, 1965 in A.S. No. 276 of 1962.

The appellant 'brought the suit in O.S. No. 3 of 1961 in the Court of Subordinate Judge, Nagapattinam for setting aside the order dated May 10, 1960 of respondent No. 1 the Commissioner of Hindu Religious and Charitable Endowments, Madras who had affirmed earlier the order of the second respondent, the Deputy Commissioner, holding that the trusteeship of the Kumaran Koil in Manjakollai village was not hereditary.

The appellant was elected as a trustee by the Sengunatha Mudaliars of Manjakollai village at a meeting held on June 27, 1957.

According to the appellant the temple was rounded two hundred years ago by the members of his community and since then the management of the temple and is affairs was always vested in the community of the Sengunatha Mudaliars and no person other than the elected trustee had at any time the right of management and control of the temple.

The appellant said that the temple was declared as an "exempted" temple under the provisions of Madras Act 1 of 1925.

The case of the appellant was that the trusteeship of the temple was "hereditary".

The respondents, however, took a different view and proceeded on the basis that trusteeship of the Kumaran Koil was not hereditary.

The Subordinate Judge held that the appellant was a hereditary trustee and the suit was not barred by limitation.

The respondents took the matter in appeal to the Madras High Court which by its judgment dated March 31, 1965 allowed the appeal and set aside the judgment of the Subordinate Judge Nagapattinam.

Section 6, sub section

(9) of Madras Act 19 of 1951 states: "In this Act, unless there is anything repugnant in the subject or context (9) 'hereditary trustee ' means the trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force;" This Act has been substituted by Madras Act 22 of 1959 but the definition of the trustee is identical in both the Acts.

The question to be considered in this appeal is whether the appellant is a hereditary trustee Within the meaning of the section.

The definition includes three types of cases: (1) succession to the office of trusteeship devolving by hereditary right; (2) succession 426 to such office being regulated by usage; and (3) succession being specifically provided for by the founder on condition that the scheme of such succession is still in force.

It is not the case of the appellant that the trustees of the temple of the Kumaran Koil are hereditary trustees because their office ' devolves by hereditary right or because succession to that office is specifically provided for by the founder.

The contention on behalf of the appellant is that the succession is "regulated by usage".

It was said that according to the usage of the temple the trustees were elected for a period of one year each at a meeting of the members of the Sangunatha Mudaliar Community and so the appellant must be held to be a trustee within the meaning of section 6(9) of Act 19 of 1951.

In our opinion, there is no warrant for this argument.

The phrase "regulated by usage" in section 6(9) of the Act must be construed along with the phrase "succession to this office" and when so construed that part of the definition would only apply where the ordinary rules of succession under the Hindu law are modified by usage and succession has to be determined in accordance with the modified rules.

The word "succession" in relation to property and rights and interests in property generally implies "passing of an interest from one person to another" (vide in Re: Hindu Women 's Right to Property Act, 1941 (1).

It is now well established that the office of a hereditary trustee is in the nature of property.

This is so whether the trustee has a beneficial interest of some sort or not (see Ganesh Chunder Dhur vs Lal Behary(2) and Bhabatarini vs Ashalata(3).

Ordinarily a shebaitship or the office of dharmakartha is vested in the heirs of the founder unless the ,founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist.

Mukherjea J., in Angurbala Mullick vs Debabrata Mullick(4) delivering the judgment of this Court observed: "Unless therefore, the founder has disposed of the shebaitship in any particular manner and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder." In the case of mutts, whose heads are often celibates and sometimes sanyasins, special rules of succession obtain by custom and usage.

In Sital Das vs Sant Ram(5) the law was taken as wellsettled that succession to mahantship of a mutt or religious institution is regulated by custom or usage of the particular institution except where the rule of succession is laid down by the founder himself who created the endowment.

In that case the custom in (1) (2) 63 I. A. 448.

(3) 70 I.A. 57.

(4) ; ,5, (5) A.LR.

1954 S.C. 606.

427 matters of succession to mahantship was that the assembly of bairagis and worshippets of the temple appointed the successor; but the appointment had to be made from the disciples of the deceased mahant if he left any, and failing disciples, any one of his spiritual kindred.

Such a succession was described as not hereditary in the sense that on the death of an existing mahant, his chela does not succeed to the office as a matter of course, because the successor acquires a right only 'by appointment and the authority to appoint is vested in the assembly of the bairagis and the worshippets.

In Sri Mahant Paramanda Das Goswami vs Radhakrishna Das(1) the Madras High Court took the view that where succession to the mahantship is by nomination by the holder in office, it was not a hereditary succession.

In that case Venkatasubba Rao, J. said: "If the successor owes his title to nomination or appointment, that is, his succession depends on the volition of the last incumbent and does not rest upon independent title, I am inclined to the view that the office cannot be said to be hereditary." Krishnan J., stated as follows: "Where succession is by nomination by the holder in office of his successor it seems to be impossible to contend that it is a hereditary succession.

Hereditary succession is succession by the heir to the deceased under the law, the office must be transmitted to the successor according to some definite rules of descent which by their own force designate the person to succeed.

There need be no blood relationship between the deceased and his successor but the right of the latter should not depend upon the choice of any individual.

" It is true that the artificial definition of hereditary trustee in section 6(9) of the Act would include even such cases.

But the election to the office of trustee in the present case is for a fixed period of one year and not for life.

It is, therefore, difficult to hold that the office of the appellant is hereditary within the meaning of section 6(9) of the Act.

It is not possible to say that there is a succession of As office to another when on the efflux of the period for which A was appointed, there is a vacancy and B is elected to that vacancy.

It is quite possible that for that vacancy A himself might be reelected because a retiring trustee is eligible for reelection.

The possibility of A being the successor A himself is not merely an anomaly, it is an impossible legal position.

No man can succeed to his own office.

In Black 's Law Dictionary the word 'succession ' is defined as follows: "The revolution of title to property under the law of descent and distribution.

(1) 428 The right by which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of a corporation.

The fact of the transmission of the rights, estate, obligations, and charges of a deceased person to his heir or heirs.

" The view we have taken is borne out by the reasoning of the Madras High Court in State of Madras vs Ramakrishna(1).

For these reasons we hold that this appeal fails and must be dismissed with costs.

V.P.S. Appeal dismissed.

Summary: The appellant was elected as a trustee of a temple for one year.

Summary: The temple was rounded two hundred years ago by the members of the community and according to the usage of the temple, the trustees were elected for one year, at a meeting of the members of the community.

Summary: On the question whether the appellant has a hereditary trustee, because he was, under section 6(9) of the Madras Hindu Religious and Charitable Endowments Act, 1951, the 'trustee of a religious institution succession to whose office is regulated by usage ', HELD: The phrase 'succession to whose office is regulated by usage ' would only apply when the ordinary rules of succession under the Hindu law are modified by usage, and succession has to be determined in accordance with the modified rules.

Summary: The office of a hereditary trustee is in the nature of property.

Summary: Succession in relation to property implies passing of an interest from one person to another.

Summary: [428 C D] In the present case, the election to the office was for a fixed period of one year.

Summary: In such a case, it is not possible to say there is a succession to the office, because: (a) on the efflux of the period for which one trustee is appointed, there is a vacancy and another is elected to that vacancy, and (b) since there is a possibility of the same trustee being reelected, an impossible legal position arises in which a person could be a successor of himself.

Summary: [429 F H] In re Hindu Women 's Right to Property Act, 1941 , Ganesh Chunder Dhur vs Lal Behary, 63 I.A. 448, Bhabatarini vs Ashalata, 70 I.A. 57, Angurbala Mullick vs Debabrata Mullick, 1134 and Sital Das vs Sant Ram, A.I.R. 1954 S.C. 606 applied.

Summary: Shri Mahant Paramananda Das Goswwami vs Radhakrishna Das. , referred to.

Summary: State of Madras vs Ramakrishna, I.L.R. , approved.


N: Criminal Appeal No. 425 1974.

Appeal by Special Leave from the Judgment and order dated the 22nd July 1974 of the Madras High Court at Madras in Criminal Appeal No. 24 of 1974 and Referred Trial No. 3 of 1974.

A. N. Mulla, K. Jayaram and P. Chandrasekhar for the Appellant. , A. V. Rangam and Miss A. Subhasini for the Respondent.

The Judgment of the Court was delivered by GOSWAMI, J.

This appeal by special leave is directed against the 4 judgment and order of the, High Court of Madras convicting the appellant (hereinafter to be described as the accused) under section 302 IPC and sentencing him to death.

709 The police had submitted charge sheet under section 302/34 IPC against the present accused and accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and Thamizharasan alias Ramaswami, who was shown as an absconder.

On the prayer of the prosecution the case against the first two accused without the absconding accused, was taken up for trial.

The two accused were charged under section 120B read with sections 302 and 109 IPC as well as under section 302/34 IPC.

The case was referred to the High Court as usual and the accused also preferred appeals against their conviction and sentence.

The High Court acquitted accused Jabamani Nadar alias Kanyakumari Comrade alias Ramu and accepted the reference in respect of the present accused.

His appeal was also dismissed.

Hence this appeal by special leave.

The facts are in a brief compass.

The deceased, Viswanatham Pillai, was the village Munsif (Headman).

On April 26, 1971, at about 10.00 P.M. he was sleeping on a bench outside his cattle shed in the open space, which is shown in the site plan (exhibit P15) at No. 9.

The younger brother of the deceased, Pandurangam (PW 4), who is a leper, was also sleeping on the eastern parapet of the sluice of the north Boothagudi channel, which is shown at No. 5 in the site plan (exhibit P15).

Pandurangam woke up at about 11.15 P.M.

On hearing the shout of his deceased brother crying "younger brother: Karunakaran is running after stabbing me with knife. 'Catch him ' ".

He got up and saw the accused Karunakaran running on the eastern bank of the channel with a knife 8 inches long.

The electric lights were burning in the vicinity He also saw two persons running ahead of accused Karunakaran.

He further saw his two brothers, Gnanasakaran (PW 1) and Thiru gnanasambandam (PW 3) along with Ramasamy (PW 2) chasing them.

He ran to his elder brother who came from the side of the bench where he was sleeping and who fell down on the southern side of the sluice.

When he went near him he was already dead.

He had bleeding injuries on several parts of his body.

A crowd gathered and Pandurangam was asked to lodge information at the police station which he did.

The doctor (PW 16) who held the postmortem examination found nine injuries two of which he described as incised and four as punctured incised, two more as punctured and the remaining one as a vertical incised wound.

These were on the left upper arm, left fore arm, on the left side of the epigastrium, on the left side of the anterior axillary line, on the left mid axillary line, on the right side of the epigastrium and on the left side of the back.

Injuries are very severe and according to the doctor death was due to shock and hemorrhage on account of the injuries.

It is clear that whosoever had inflicted these injuries definitely had ? the intention to cause the death of the victim.

In the first information report which PW 4 lodged at the Thana, which is very close to the place of occurrence, within about 15 minutes of the occurrence, inter alia, stated thus: 4 L159SCI/76 710 At about 11.15.

P.M. I woke up on hearing a noise to the effect 'younger brother, Karunakaran is running after stabbing me with knife, 'catch him '.

I stood up and saw Karunakaran, son of Orathur Ayyathurai Padayachi running eastwards from the place where I lay and my elder brother chasing him from behind.

I too came running".

It will be seen that at the time of lodging of the first information report only the present accused was implicated.

Even so, later on four eye witnesses were produced implicating not only the present accused but also two other accused.

The High Court after appreciating the entire evidence rejected the evidence of these eye witnesses, namely, PW 1, 2, 3 and 5 and described them as "a bunch of liars", "unashamed liars and perjurers".

The High Court, therefore, acquitted the second accused, Jabamani Nadar alias Kanyakumari Comrade alias Ramu and also observed that necessarily no case would lie on this kind of testimony against even the absconding accused.

It was also observed that the High Court "can place no reliance on the testimony of PW 4 in so far as he implicated the second accused and Tharnizharasan in the case of murder of Viswanatham".

The High Court further observed: "Poor PW 4 was compelled to speak to a version which ought to accord and harmonise with the version given out by , PWs 1, 2 and 3".

Even so the High Court thought that it was justified in convicting the present accused on the sole testimony of PW 4 "corroborated by the contents of exhibit P1 (FIR)".

The High Court held that "PW 4 who was afflicted with the fell disease of leprosy. has absolutely no motive to implicate the first accused".

The High Court further held that PW 4 gave a "candid, natural and truthful version. at the earliest opportunity".

The High Court has taken note of the fact that "there has been a history of a bitter feud spanning over nearly a decade between the first accused and his father on the one hand and the deceased Viswanatham t on the other".

This is, therefore, a case where conviction of the accused depends .

on the sole testimony of a single witness.

If the witness is absolutely reliable there can be no infirmity in convicting the accused.

In that ' case even corroboration may not be sought for.

ordinarily in an appeal under article 136 of the Constitution we would have hestitated to go into the facts to reappreciate the evidence.

It is, however, not possible to adopt that course in this case where the testimony of the sole witness has been rejected with reference to the 1 second accused who was on the same boat with the appellant.

The very fact that this eye witness could be persuaded to substitute PWs 1, 2 and 3 for his deceased brother as chasing the assailants, degrades him from the status of an absolutely reliable witness.

He is definitely an obliging witness and cannot at all be trustworthy.

This witness may not have a qualm of conscience in implicating the accused for the 711 mere asking by someone, if not by the inimical police officer (PW 23) against whom criminal cases were pending at the instance of the accused 's father.

Apart from that we find that the High Court has not considered the intrinsic quality of the evidence of PW 4.

It failed to notice certain broad facts which should definitely weigh with the court while appreciating ocular testimony.

From the medical evidence it is clear that there were more than one assailant and yet for the FIR it appears that there was only one assailant.

This may not, in a given case, be considered as a very serious infirmity since the witness may not have seen the other.

assailants when he came running to the place of occurrence.

But the fact that the witness has stated in the first information report that the deceased was only mentioning the name of accused Karunakaran as his assailant, this earlier version appears to be contradicted by the medical evidence.

Besides, he has deliberately changed his own stand in court when he deposed that he saw two other persons running ahead of Karunakaran being chased by his two brothers and Ramaswamy.

Another very serious departure from his earlier version is that while PW 4 had stated in the first information report that "my elder brother" (meaning the deceased) was "chasing him from behind" in court he has completely given a go by to this statement and stated that Karunakaran was being chased by PWs 1, 2, and 3.

He did not at all refer to the deceased chasing him.

If his statement in court that he saw PWs 1, 2 and 3 chasing Karunakaran while running away after the assault is true, it is difficult to appreciate that he would not mention about this fact in the first information report.

He admitted in the course of cross examination that the Sub Inspector asked him whether he had any witnesses and that he "did not tell about them due to excitement".

It is difficult to accept this explanation of this witness.

Assuming that his earlier version in the first information report is true that the deceased chased the accused .

as the latter was running away after the assault we would have expected some evidence of a trail of blood stains from the place where he was sleeping to the place where he fell dead.

On the other hand we find that there is a mention about a pool of blood only where the dead body was found at No. 1 in the site plan.

There were also no blood stains on the bench where he was said to be sleeping.

We further find from the evidence of PW 4 in cross examination that when he went near his deceased elder brother about hundred persons were there and "none of them asked him as to how it had happened".

We do not find in this case a single witness out of that crowd produced in court for the purpose of corroborating PW 4.

If the statement of PW 4 is to be believed, the crowd had gathered at the place of occurrence already when he arrived.

It is also conceivable that those persons, who arrived at the place of occurrence a little earlier than PW 4, did not see the assailants who might have already escaped.

It also stands to reason that those persons who gathered would not ask PW 4, who arrived at the place a little later, for information with regard to the assailants.

There is considerable doubt as to this testimony with regard to seeing the accused running away from the place of occurrence.

When the accused is 712 going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that he is absolutely reliable.

We are unable to say that the High Court in this case has made a correct approach in assessing the quality of the testimony of this solitary eye witness.

The High Court is not even right that PW 4 stands wholly corroborated by the contents of the FIR.

On the other hand we have .

r shown that his version in the FIR stands contradicted by the testimony in court on a very material point.

For the reasons given above we are unable to place such reliance as is requisite on the testimony of this uncorroborated solitary witness for convicting the accused facing a murder charge.

The conviction and sentence of death are, therefore, set aside.

The appeal is allowed and the accused shall be released from detention forthwith.

S.R. Appeal allowed.

Summary: The appellant along with "J" & '.T" was charged for offences u/s 120B/109/ 302 I.P.C. as well as 302/34 I.P.C. The trial which proceeded in the absence of absconding "T", resulted in the conviction and both the accused were sentenced to death sentence.

Summary: On a reference and appeals by the accused the High Court acquitted "J" rejecting four out of five eye witnesses and disbelieving even the only other eye witness who lodged the First Information Report.

Summary: The High Court however maintained the conviction and confirmed the death sentence on the appellant relying on the testimony of the very same single witness.

Summary: on appeal by special leave, the Court ^ HELD: (i) Ordinarily in an appeal under article 136 of the Constitution the Court would hesitate to go into the facts to reappreciate the evidence.

Summary: It is, however.

Summary: not possible to adopt that course, where the testimony of the sole witness has been rejected with reference to the second accused was on the same boat with the appellant.

Summary: When the accused is going to lose his life in such a serious charge u/s 302 I.P.C. it is only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the sole single witness is absolutely reliable.

Summary: [710G, H, 711H, 712A] (ii) In the instant case, the High Court was not correct in appreciating the ocular testimony of a sole witness, because (a) the very fact that the eye witness could be persuaded to substitute PWs.

Summary: 1, 2. and 3 for his deceased brother as chasing the assailants, contrary to the version of the F.I.R. degrades him from the status of an absolutely reliable witness, not having a qualm of conscience, but an obliging and untrustworthy witness.

Summary: [710H] (b) 'The version in the F.I.R. stands contradicted by the testimony in court on a very material point and does not corroborate.

Summary: [712 B] (c ) Placing such reliance.

Summary: therefore.

Summary: as is requisite on the testimony of the uncorroborated solitary witness for convicting the accused facing a murder charge is not possible in the case. [712 B]


l Appeals Nos.

15 to 19 of 1962.

Appeal from the Judgment and order dated October 10, 1958, of the Bombay High Court in Income tax Reference No. 22 of 1 958.

H. N. Sanyal,, Additional Solicitor General of India, N. D. Karkhanis and R. N. Sachthey, for the appellant.

701 A. V. Viswanatha Sastri, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents.

October, 23.

The judgment of the Court was delivered by KAPUR, J.

These a peals pursuant to a certificate of the High Court of Bombay raise the question of interpretation of section 24B of the Income tax Act in an Income tax Reference.

The question referred was answered in the negative and against the Commissioner of Income tax who is the appellant in these appeals, the respondents being the heirs and legal representatives of one Amarchand N. Shroff deceased.

The appeals relate to the assessment years 1950 51, 1951 52, 1952 53, 1953 54 and 1954 55.

Shortly stated the facts of the case are these Amarchand N. Shroff, Mangaldas and Hiralal were partners in a firm of solicitors.

Amarchand died on July 7, 1949.

Thereafter the partnership was carried on by Mangaldas and Hiralal up to November 30, 1949, and on December 1, 1949, Ramesh son of Amarchand who had by then qualified as a solicitor joined the firm as the third partner.

After the death of Amarchand the arrangement between the various partners in regard to the realisations of the old outstandings was that in respect of the work done up to the death of Amarchand the realisations were to be divided amongst Amarchand, Mangaldas and Hiralal, in respect of the work between July 8, 1949, and November 30, 1919, the realisations were to be divided between Mangaldas and Hiralal 'and in respect of work done after December 1, 1949, the realisations were to be divided amongst Mangaldas, Hiralal and Ramesh.

The firm kept its accounts on cash basis.

For the five assessment years 1950 51 to 1954 55 the following amounts were received : Rs. 37,847/ , As.

43,162/ , Rs. 34,899/ , Rs. 13,402/ and 702 Rs. 32,523/ by the heirs and legal representatives of Amarchand out of the outstandings.

The Income tax Officer sought to tax these realisations.

For the assessment years 1950 51 and 1951 52 he assessed the amounts in the hands of the heirs and legal representatives of Amarchand as a Hindu undivided family.

Against that order an appeal was taken to the Appellate Assistant Commissioner and then to the Appellate Tribunal.

The two members of the Tribunal agreed in holding, though for different reasons, that the amounts were not the income of the Hindu undivided family but merely represented inheritance or realisations of the assets of Amarchand.

The matter was not pursued further by the Revenue but sometime later proceedings were started by the Income tax Officer under section 34 in respect of the same income in the hands of "Amarchand N. Shroff by his heirs and legal representatives".

The status of that entity was taken to be that of an individual and not Hindu undivided family.

The various amounts were assessed to income tax in the hands of the respondents under section 34(1) (b) read with section 24B of the Income tax Act.

The assessments so made were for the assessment years 1950 51, 1951 52, 1952 53, 1953 54 and 1954 55: On appeal the Appellate Assistant Commissioner held that.

the notice under section 34 could validly be served only for the assessment years 1950 51 and notices for the subsequent years were invalid.

The assessments for 1951 52 to 1954 55 were therefore quashed.

The Commissioner of Income tax took an appeal to the Appellate Tribunal and the Tribunal held that assessment could not be made on Amarchand and that section 24B had no application to the income received after the death of Amarchand and that it was capital receipt and not revenue receipt.

The order of the Appellate Assistant Commissioner was therefore upheld, On the application of the Commissioner of 703 Income tax the following question of law was referred to the High Court : "Whether on the facts and in the circumstances of the case, the sums of Rs. 37,847/ , Rs. 43,162/ , Rs. 34,899/ , Rs. 13,402,/ and Rs. 32,523/ were assessable to income tax in the hands of the assessee "Amarchand N. Shroff by his legal heirs and representatives" in the five respective years under reference ?".

The High Court answered the question in the negative.

It held that apart from section 24E of the Income tax Act the amounts were not taxable and that the section had no application to the case.

It was argued by counsel for the Commissioner of Income tax that on a correct interpretation of section 24B the amounts which were received by the heirs and legal representatives of Amarchand after his death should be deemed by the fiction incorporated in sub section

(1) to be income received by Amarchand and liable to tax under section 24B (1) of the Income tax Act.

In other words the respondents as heirs and legal representatives of the deceased Amarchand were liable to pay out of the estate of the deceased Amarchand on those amounts to the extent of the estate as the estate was liable for tax on the amounts received by the heirs and legal representatives just as the deceased Amarchand would have been had he not died.

The emphasis was on words in section 24B (1) "or any tax which would have been payable by him under this Act if he had not died".

Section 24B is as follows : section 24B 11,Tax of deceased person payable by represen tative (1) Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to Which the estate 704 is capable of meeting the charge the tax assessed as payable by such person or any tax which would have been payable by him under this Act if he had not died.

(2) Where a person dies before the publication of the notice referred to in sub section (1) of section 22 or before he is served with a notice under sub section (2) of section 22 or section 34, as the case may be, his executor, administrator or other legal representative shall, on the serving of the notice under sub section (2) of section 22 or under section 34, as the case may be, comply therewith and the Income tax Officer may proceed to assess the total income of the deceased person as if such executor, ad ministrator or other legal representative were the assessee.

(3) Where a person dies, without having furnished a return which he has been required to furnish under the provisions of section 22, or having furnished a return which the Income tax Officer has reason to believe to be incorrect or incomplete, the Income tax Officer may make an assessment of the total income of such person and determine the tax payable by him on the basis of such assessment, and for this purpose may by the issue of the,, appropriate notice which would have had to be served upon the deceased person had he survived require any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 have required from the deceased person.

" Sub section (1) provides that where a person dies his heirs and legal representatives are liable to pay out 705 of the estate of the deceased the tax assessed as payable by the deceased or any tax which would have been payable under the Act by the deceased if he had not died.

According to the 'submission of counsel for the Commissioner of Income tax the words of sub section

(1) "or any tax which would have been payable by him under this Act if he had not died" mean that irrespective of the date of ' receipt of income receivable by a person, if the income is received by his heirs and legal representatives after his death, they are liable for payment of the tax just as the deceased would have been liable when the income was received had he been living.

But this interpretation is not in accord with the language used in s.24B. All the sub sections have to be read together.

Sub section (1) can be divided into two parts; (1) where the income of the deceased was assessed before his death and (2) where the income was not so assessed but it would have been liable to tax had he not died.

The second part or the words above quoted when read with sub sections (2) and (3) show that they are confined to cases therein mentioned.

They show that those words also have to be restricted to the income received by the deceased person before his death and to the income received after his death by his heirs and legal representatives but in the previous" year and which had not been assessed but would have been assessed as income received by him if death had not taken place.

See Allen vs Trehearne(1) where the words "if he had not died" were interpreted.

Sub section (2) provides that if a person dies before the publication of the public notice under s.22 (1) or before a notice is served on him under sub sections 2 of section 22 or section 34 then the Income tax Officer may proceed to compute or assess the total income of the deceased person as if the heirs and legal representatives were the assessees Sub section (3) provides that when a person dies before a return is furnished by him under the provisions of section 22 or dies after having furnished the return which the (1) (1938) 22 Tax.

15, 706 Income tax Officer finds incorrect or incomplete then the Income tax Officer can make assessment on the total income of the deceased person and certain other consequences follow but in all the cases enumerated above the language used in sub sections 1, 2 and 3 of s.24B contemplates that the heirs and legal representatives of a deceased person are liable to pay income tax out of his estate (1) where assessment had already been made and (2) where he dies before the assessment but the income was received before his death or by his heirs and legal representatives after his death which occurs during the previous year.

If he dies before the publication of the notice under S.22(1) or before the service under s.22(2) or after the service but before he has furnished a return or filed an incorrect or incomplete return then the Income tax Officer should make an assessment of the total income of such deceased person and determine the tax payable thereupon.

Section 24B does not authorise levy of tax on receipts by the legal representatives of a deceased person in the years of assessment succeeding the year of account being the previous year in which such person died.

Income tax is exigible in reference to a person 's total income of the previous year.

The question before us is whether the income which was received subsequent to the previous year in which Amarchand died is liable to be assessed to income tax under section 24B as his income in the hands of his heirs and legal representatives.

In the present case the accounts were kept on cash basis.

The assessee under the Act has ordinarily to be a living person and cannot be a dead person because his legal personality ceases on his death.

By section 24B the Legal personality of a deceased assessee is extended for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous 707 year becomes assessable to income tax in the relevant assessment year.

The section was enacted by the Legislature to bring to tax, after his death, income received during his lifetime, and fill up the lacuna which was pointed out by the High Court in Ellis C. Reid vs Commissioner of Income tax, Bombay(1).

Any income received in the year subsequent to the previous or the account year cannot be called income received by the person deceased.

The provisions of section 24B do not extend to tax liability of the estate of a deceased person beyond the previous or the account year in which that person dies.

In support of his contention counsel for the Commissioner of Income tax relied upon the scheme of the Act as given in Additional Income tax Officer vs E. Alfred(2).

There is nothing said in that case which supports the contention raised by the Commissioner of Income tax.

Reliance was next placed on certain observations in a judgment of the Bombay High Court in re.

B. M. Kamdar(3).

Those observations also are of no assistance to the Commissioner of Income tax, Kania, J., as he then was) there observed that the question whether a particular amount was income or not had nothing to do with the time of its receipt and the question of receipt was material.

only for the purpose of determining whether on that amount tax was to be levied under the Act in the year of assessment.

That was a case where a consulting engineer discontinued his practice as such from February 15, 1938, and he received a sum of money representing the outstanding 'professional fees earned by him prior to the discontinuance of his practice but realised by him during the Calendar year which was the previous year.

The assessee was keeping is accounts on cash basis and he contended that as he had discontinued his profession in the previous year the source had come to an nd and the amounts received by him were not liable to income tax.

It was held that the income was assessable.

The assessee in that case was still alive when the income (1) (2) , 445. (3) [1946] 14 l.

T.R. 10.

708 was received by him and section 24B had no application to the facts of the case.

Counsel also relied on the observations of Derbyshire, C.J., in re Sreemati Usharani Shoudhurani(1).

In that case the managing agent of a limited company died on May 12, 1938.

At the time of his death there was a credit with the company of a sum of money on account of commission earned by him and due to him prior to the date of his death.

This sum was paid after his death in the previous year 1938 39 and was sought to be taxed under section 24B of the Income tax Act.

It was held that this income was taxable.

Derbyshire, C.J., said at p. 205 that the assessee who was the widow had received the salary due to her husband; that the Income tax Officer was entitled to assess the total income of the deceased person as if the legal representatives were the assessees and the amount was liable to tax under section 24B (1), but in that case also the amount was received by the widow in the previous year and it was earned by the deceased during the previous year.

The correct position is that apart from s.24B no assessment can be made in respect of the income of a person after his death.

See Ellis C. Reid vs Commissioner of Income tax, Bombay(2).

In that case, and that was a case before section 24B was enacted, a person was served with a notice under section 22(2) of the Income tax Act but no return was made within the period specified and he died.

It was held that no assessment could be made under section 23(4) of the Act after his death.

At p.106 it was observed : "The is to be noticed that there is through the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional It must have (1) (2) 709 been present to the mind of the legislature that whatever privileges the payment of income tax may confer, the privilege of immortality is not amongst them.

Every person liable to pay tax must necessary die and, in practically every case, before the last instalment has been collected, and the legislature has not chosen to make any provisions expressly dealing with assessment of, or recovering payment from the estate of a deceased person".

The individual assessee has ordinarily to be a living person and there can be no assessment on a dead person and the assessment is a charge in respect of the income of the previous year and not a charge in respect of the income of the year of assessment as measured by the income of the previous year.

Wallace Brothers & Co. Ltd. v Commissioner of Income tax, Bombay City(2).

By section 24B the legal representatives have, by fiction of law, become assessees as provided in that section but that fiction cannot be extended beyond the object for which it was enacted.

As was observed by this Court in Bengal Immunity Co. Ltd. vs The State of Bihar(2) legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate: field.

In the present case the fiction is limited to the cases provided in the three subsections of section 24B and cannot be extended further than the liability for the income received in the previous year.

In the present case the amounts which are sought to be taxed and which have been held not to be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment.

It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income (1) , 244.

(2) , 664.

710 of the deceased Amarchand and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assessees for the purpose of assessment in regard to those years.

In our view the High Court rightly answered the question in the negative and against the Commissioner of Income tax.

The appeals therefore fail and are dismissed with costs.

Appeals dismissed.

Summary: Sub section (1) of section 24B of the Indian Income tax Act, 1922, provided that where a person dies his heirs and legal representatives ate liable to pay out of the estate of the deceased the tax assessed as payable by the deceased or any tax which would have been payable under the Art by the deceased if he had not died.

Summary: A who, was one of the three partners in a firm of solicitors died.

Summary: on July 7,1949, and thereafter the partnership was carried on by the other two partners till December 1, 1949.

Summary: when R, son of A, joined the firm as the third partner.

Summary: After the death of A the arrangement between the various partners in regard to the ' realisations of the old out standings was that in respect of the work done up to the death of A the realisations were to be divided between A and the other two partners.

Summary: The firm 700 kept its accounts on cash basis For each of the five assessment years, 1950 1955, certain amounts were received by the heirs and legal representatives of A out of the out standings.

Summary: Proceedings were started by the Income tax Officer under section 34 of the Indian Income tax Act, 1922, in respect of the aforesaid.

Summary: income, and the various amounts were assessed to income tax in the hands of the respondents, the heirs and legal representatives of A, under section 34 (1) (b) read with section 24B of the Act, for the five respective assessment years, on the footing that the amounts which were received by the heirs and legal representatives of A after his death should be deemed by virtue of the words in sub section

Summary: (1) of section 24B to be income received by A and liable to tax under that sub section.

Summary: Held, that the words "or any tax which would have been payable by him under this Act if he had not died" under section 24B(1) of the Indian Income tax Act, 1922, are restricted to the income received by the deceased person before his death and to the income received after his death by his heirs and legal representatives in the "previous year" and which had not been assessed but would have been assessed as income received by him, if death had not taken place.

Summary: Apart from section 24B no assessment can be made in respect of the income of a person after his death.

Summary: Held, that as the income was received after the expiry of the previous year in which A died it was not liable to be taxed as the income of A in the hands of his legal representatives in the several years of assessment.

Summary: Allen vs Trehearne, , Ellis C Reid vs Commissioner of Income tax Bombay, and Wallace Brother & Co. Ltd. vs Commissioner of Income tax, Bombay City, [1948] 16 , referred to.


No. 65 of 1969.

Petition under article 32 of the Constitution of India for enforcement of fundamental rights.

section V. Gupte, P. A. Choudhury and K. Rajendra Chaudhuri, for the petitioners.

M. C. Setalvad, P. Ramachandra, Rao, Advocate General, Andhra Pradesh, A. Raghubir and A. V. Rangam, for respondent No. 1.

M. C. Setalvad and R. N. Sachthey, for respondent No. 2.

R. V. Pillai, H. section Gururai Rao and Subodh Markandeya, for respondents Nos. 3 to 45.

Sardar Ali Khan, P. N. Duda and J. B. Dadachanji, for res pondent No. 46.

P. A. Choudhury, K. Rajendra Chaudhuri and C. section Sreenivasa Rao, for the interveners.

The Judgment of the Court was delivered by Hidayatullah, C.J.

The petitioners are persons employed in the ministerial services of the Andhra Pradesh Government.

All of them were working in various offices located in the cities of Hyderabad and Secunderabad.

On January 19, 1969, leaders, of all political parties in the Legislature of the Andhra Pradesh State appeared to have met and reached the decision that to Implement what are called Telengana Safeguards ', the following measures should be taken : "All non domicile persons, who have been appointed either directly, by promotion or by transfer to posts reserved under the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 for domiciles of Telengana region will be immediately relieved from service.

The posts so rendered vacant will be filled by qualified candidates possessing domicile qualifications and in cases where such candidates are not available the posts shall be left unfilled till qualified domicile candidates become available Action on the above lines will be taken immediately.

All non domicile employees so relieved shall be provided employment in the Andhra region without break in service and by creating supernumerary posts, if necessary.

" 117 The Government of Andhra Pradesh then passed an order (G.O.Ms. 36, G.A. (SR) Dept.) on January 21, 1969 relieving before February 28, 1969 all non domicile persons appointed on or after November 1, 1956 to certain categories of posts reserved for domiciles of Telengana under the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959.

Names of such incumbents were to be shown in a proforma and they were to be employed in the Andhra region without break in service by creating supernumerary posts, if necessary.

These supernumerary posts were to be treated as temporary addition to the strength of the office concerned and were to be adjusted against future vacancies in corresponding posts as they arose.

The action was based upon section 3 of the Public Employment (Requirement as to Residence Act, 1957 (44 of 1957) which was an Act of Parliament made in pursuance of cl.

(3) of article 16 of the Constitution making special provision for requirement as to residence and brought into force on March 21, 1959.

Section 3 of the Act gave the power to make Rules in respect of certain classes of employment in certain areas.

It provided: "3.

Power to make rules in respect of certain classes of public employment in certain areas. (1)The Central Government may, by notification in the Official Gazette, make rules prescribing, in regard to appointments to (a)any subordinate service or post under the State Government of Andhra Pradesh, or any requirement as to residence within the Telengana area or the said Union territory as the case may be, prior to such appointment.

(2) In this section, (a). . . . . (b)"Telengana area" comprises all the territories specified in sub section (1) of section 3 of the ." Under section 4, the Rules had to be laid before each House of Parliament for a period of not less than 30 d s and Parliament could make such alterations as it liked.

Under section 5 the Rules had a life of 5 years but by subsequent legislation the period was extended to 10 years.

It is said that the period 118 is to be extended by another 5 years.

The Rules were made on March 21, 1959.

They are called the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959.

Rule 3 provides : "3.

Requirement as to residence Prior to Appointment : A person shall not be eligible for appointment to a post within the Telengana area under the State Government of Andhra Pradesh or to a post under a local authority (other than a cantonment board) in the said area unless (i)he has been continuously residing within the said area for a period of not less than fifteen years immediately preceeding the prescribed date; and (ii)he produces before the appointing authority ,concerned, if so required by it, a certificate of eligibility granted under these rules; Provided that in relation to posts in the Secretariat Departments and the Offices of the Heads of Departments of the State Government of Andhra Pradesh situated in the cities of Hyderabad and Secunderabad, the requirement as to residence laid down in this rule shall apply to the filling of only the second vacancy in every unit of three vacancies which are to be filled by direct requirement; Provided further that any period of temporary absence from Telengana area for the purpose of prosecuting his studies or for undergoing medical treatment or any period of such temporary absence not exceeding three months for any other reason shall not be deemed to constitute a break in the continuity of such residence, but for purpose of calculating the said period of fifteen years any such period of temporary absence shall be excluded.

" The petitioners were appointed between December 27, 1956 and July 4, 1968.

They challenge the Act, the Rules and the proposed action as ultra vires the Constitution.

Their case is that article 16(3) under which the Act and the Rules purport to be made has been misunderstood as conferring a power to make, a law prescribing requirement as to residence in a part of a State.

For this reason section 3 of the Act is challenged as ultra vires the Constitution.

119 Article 16 on which the Act, the Rules and the present action are all based, reads : "16.

Equality of opportunity in matters of public employment.

(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated 'against in respect of, any employment or office under the State.

(3)Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4). . . . (5). . . .

The question is one of construction of this article, particularly of the first three clauses, to find out the ambit of the law taking power of Parliament.

The first clause emphasises that ware shall be in India equality of opportunity for all citizens in matters of employment or appointment to any office under the late.

The word 'State ' here is to be understood in the extended use given to it by the definition of that word article 12.

The second clause then specifies a prohibition against discrimination only on the grounds of religion, race, sex, descent, place of birth, residence or any of them.

The intention here is make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part India open to citizens in all other parts of India.

The third pause then makes an exception.

This clause was amended by the Constitution (Seventh Amendment) Act, 1956.

For the original words of the clause 'under any State specified in the First schedule or any local or other authority within its territory any requirement as to residence within that State ', the present words from 'under the Government ' to 'Union territory ' have been substituted.

Nothing turns upon the amendment which seeks to apply of the exception in the clause to Union territory and to remove ambiguity in language.

120 The clause thus enables Parliament to make a law in a special case prescribing any requirement As to residence within a State or Union territory prior to appointment, as a condition of employment in the State or Union territory.

Under article 35(a) this power is conferred upon Parliament but is denied to the Legislatures of the States, notwithstanding anything in the Constitution, and under (b) any law in force immediately before the commencement of the Constitution in respect to the matter shall subject to the terms thereof and subject to such adaptations that may be made under article 372 is to continue in force until altered or repealed or amended by Parliament.

The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament.

Parliament can make any law which prescribes.

any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory.

Two questions arise here.

Firstly, whether Parliament ', while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State and, secondly, whether Par liament can delegate this function by making a declaration and leaving the details to be filled in by the rule making power of the Central or State Governments.

Mr. section V. Gupte, for the petitioners, points out that the ;Constitution is speaking of State and Union territory.

It has already made a declaration that no person shall be disqualified for any office in the territory of India because of his residence in any particular part of India.

The exception, therefore, must be viewed narrowly and not carried to excess by interpretation.

The article speaks of residence in a State and means only that.

If it chose to speak of residence in parts of State such as Districts, talauqas, cities, towns etc.

more appropriate and specific language could have been used such as 'any requirement as to residence within that State or Union territory or part of that State or Union territory '.

Having used the word State, the unit State is only meant and not any part thereof.

Reference is made to the history of the drafting of the Article and the debates in the Constituent Assembly which bear out this contention.

On the other hand, Mr. Setalvad bases his argument on two things.

He contends that the power is given to Parliament to make any law and, therefore, Parliament is supreme and can make any law on the subject as the article says.

He very ingeniously shifts the emphasis to the words 'any requirement ' and contends that the requirement may be also as to residence in the State or any particular part of state.

121 The claim for supremacy of Parliament is misconceived.

Par liament in this, as in other matters, is supreme only in so far as the Constitution makes it.

Where the Constitution does not concede supremacy, Parliament must, act within its appointed functions and not transgress them.

What the Constitution says is a matter for,construction of the language of the Constitution.

Which is the proper construction of the two suggested? By the first clause equality of opportunity in employment or appointment to an office is guaranteed.

By the second clause, there can be no discrimination, among other things, on the ground of residence.

Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made.

Even so,, that clause spoke of residence within the State.

The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning.

The words 'any requirement ' cannot be read to warrant something which could have been said more specifically.

These words bear upon the kind of residence or its duration rather than its location within the State.

We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages.

The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate.

We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law ' and 'any requirement '.

These words are obviously controlled by the words 'residence within the State or Union territory ' which words mean what they say, neither more nor less.

It follows, therefore, that section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.

In view of our conclusion on this point it is not necessary to express any opinion whether delegation to the Central and/or State Governments to provide by rules for the further implementing of the law made by Parliament is valid or not.

It was argued that the Mulki Rules existing in the former Hyderabad State must continue to operate by virtue of article 35(b) in this area.

This point is not raised by the petitions under consideration and no expression of opinion by us 'is desirable.

L12 Sup Cl/69 9 122 For the reasons given above we quash the orders passed and declare section 3 of the Public Employment (Requirement as to Residence) Act, 1957 as also Rule 3 of the Rules ultra vires the Constitution.

The petitions shall be allowed but there shall be no order about costs.

Y. P. Petitions allowed.

Summary: The Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 in pursuance of cl.

Summary: (3) of article 16 of the Constitution of India making special provision for requirement as to residence in public employment.

Summary: Section 3 of the Act gave the power to make rules in respect of certain classes of employment in certain areas, and accord ingly the Andhra Pradesh Public Employment (Requirement as to Residence) Rules were made prescribing the requirement , as to residence prior to appointment to certain posts, within the Telengana area of the State.

Summary: The petitioners who were non domicile persons appointed to the posts reserved for the domiciles of Telengana under the rules, were by an order relieved from their posts and employed in the other 'region of the State.

Summary: The petitioners, filed a petition under article 32 of the Constitution challenging the Act, the Rules and the order as ultra vires the Constitution.

Summary: Quashing the order, this Court, HELD : Section 3 of the Public Employment (Requirement as to Residence) Act, 1957 in so far as it related to, Telengana and Rule 3 of other Rules under it were ultra vires the Constitution.

Summary: [122 A] Clause (3) of article 16 of the Constitution enables Parliament to make a law in a special case prescribing any requirement as to residence within a State or Union Territory prior to appointment, in the State or Union Territory.

Summary: The provision speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Talukas, cities, towns or villages.

Summary: The fact that the clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to, indicate.

Summary: The words 'any law ' and 'any requirement ' cannot be given wide and liberal construction.

Summary: These words are controlled by the words .

Summary: residence within the State or Union Territory ' which words mean what they say neither more or less.

Summary: [121 D G] 116