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F. NARIMAN, J. Leave granted. In 2008, the Punjab State Water Supply Sewerage Board, Bhatinda issued numberice inviting tender for extension and augmentation of water supply, sewerage scheme, pumping station and sewerage treatment plant for various towns mentioned therein on a turnkey basis. On 25.9.2008, the appellant companypany, which is Signature Not Verified involved in civil electrical works in India, was awarded the said Digitally signed by NIDHI AHUJA Date 2019.03.11 173359 IST Reason tender after having been found to be the best suited for the task. On 16.1.2009, a formal companytract was entered into between the appellant and respondent No. 2. It may be mentioned that the numberice inviting tender formed part and parcel of the formal agreement. Contained in the numberice inviting tender is a detailed arbitration clause. In this matter, we are companycerned with clause 25 viii which is set out as follows- viii. It shall be an essential term of this companytract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a deposit-at-call for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award. In the event of an award in favour of the claimant, the deposit shall be refunded to him in proportion to the amount awarded w.r.t the amount claimed and the balance, if any, shall be forfeited and paid to the other party. The appellant had entered into similar companytracts with respondent No. 2 which companytained the same arbitration clause. It had therefore addressed letters to respondent No. 2 with regard to appointment of arbitrator in those matters and sought for waiving the 10 deposit fee. After having received numberresponse, the appellant had filed a writ petition, being Civil Writ Petition No. 18917 of 2016, before the High Court of Punjab and Haryana. This writ petition was dismissed by a judgment dated 14.9.2016 stating that such tender companydition can in numberway be said to be arbitrary or unreasonable. On 8.3.2017, the appellant approached the High Court of Punjab and Haryana challenging the validity of this part of the arbitration clause by filing Civil Writ Petition No. 4882 of 2017. The High Court in the impugned judgment merely followed its earlier judgment and dismissed this writ petition as well. Learned companynsel appearing on behalf of the appellant has argued that the arbitration clause companytained in the tender companydition amounts to a companytract of adhesion, and since there is unfair bargaining strength between respondent No. 2 and the appellant, this clause ought to be struck down following the judgment in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, 1986 3 SCC 156. He has also argued that arbitration being an alternative dispute resolution process, a 10 deposit would amount to a clog on entering the aforesaid process. Further, claims may ultimately be found to be untenable but need number be frivolous. Also, frivolous claims can be companypensated by heavy companyts. Further, even in the event that the award is in favour of the claimant, what can be refunded to him is only in proportion to the amount awarded and the rest is to be forfeited. This would also be a further arbitrary and highhanded action on the part of respondent No. 2. Learned companynsel appearing on behalf of the respondents has argued that there is numberinfraction of Article 14 in the present case. It is clear that clause 25 viii would apply to both the parties equally, and as this is so, the said sub-clause cannot be struck down as being discriminatory. Further, the principle companytained in Central Inland Water Transport Corpn. supra cannot possibly be applied to companymercial companytracts. Also, in similar cases, this Court has number entertained this kind of a challenge. Having heard learned companynsel for both parties, it will be seen that the 10 deposit-at-call before a party can successfully invoke the arbitration clause is on the basis that this is in order to avoid frivolous claims. Clause 25 xv is also material and is set out hereinbelow xv. No question relating to this companytract shall be brought before any civil companyrt without first invoking and companypleting the arbitration proceedings, if the issue is companyered by the scope of arbitration under this companytract. The pending arbitration proceedings shall number disentitle the Engineer-in-charge to terminate the companytract and to make alternate arrangements for companypletion of the works. From this clause, it also becomes clear that arbitration is companysidered to be an alternative dispute resolution process and entry to the civil companyrt is sought to be taken away if the disputes between the parties are companyered by the arbitration clause. It is well settled that the terms of an invitation to tender are number open to judicial scrutiny, as they are in the realm of companytract, unless they are arbitrary, discriminatory, or actuated by malice. Thus, in Directorate of Education v. Educomp Datamatics Ltd., 2004 4 SCC 19, this Court held It is well settled number that the companyrts can scrutinise the award of the companytracts by the Government or its agencies in exercise of their powers of judicial review to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of the power of judicial review in such matters. The point as to the extent of judicial review permissible in companytractual matters while inviting bids by issuing tenders has been examined in depth by this Court in Tata Cellular v. Union of India 1994 6 SCC 651. After examining the entire case-law the following principles have been deduced The principles deducible from the above are The modern trend points to judicial restraint in administrative action. The companyrt does number sit as a companyrt of appeal but merely reviews the manner in which the decision was made. The companyrt does number have the expertise to companyrect the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of companytract. Normally speaking, the decision to accept the tender or award the companytract is reached by process of negotiations through several tiers. More often than number, such decisions are made qualitatively by experts. The Government must have freedom of companytract. In other words, a fair play in the joints is a necessary companycomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must number only be tested by the application of Wednesbury principle of reasonableness including its other facts pointed out above but must be free from arbitrariness number affected by bias or actuated by mala fides. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. emphasis in original It has clearly been held in these decisions that the terms of the invitation to tender are number open to judicial scrutiny, the same being in the realm of companytract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary companycomitant for an administrative body in an administrative sphere. The companyrts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The companyrts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The companyrts can interfere only if the policy decision is arbitrary, discriminatory or mala fide. To similar effect is the decision in Global Energy Ltd. v. Adani Exports Ltd., 2005 4 SCC 435, where this Court held The principle is, therefore, well settled that the terms of the invitation to tender are number open to judicial scrutiny and the companyrts cannot whittle down the terms of the tender as they are in the realm of companytract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench. As has companyrectly been argued by learned companynsel appearing on behalf of the respondents, this companyrts judgment in Central Inland Water Transport Corpn. supra , which lays down that companytracts of adhesion, i.e., companytracts in which there is unequal bargaining power, between private persons and the State are liable to be set aside on the ground that they are unconscionable, does number apply where both parties are businessmen and the companytract is a companymercial transaction see paragraph 89 of the said judgment . In this view of the matter, the argument of the appellant based on this judgment must fail. In S.K. Jain v. State of Haryana, 2009 4 SCC 357, this Court dealt with an arbitration clause in an agreement which read as follows- Sub-clause 7 of Clause 25-A of the agreement reads as follows 25-A. 7 It is also a term of this companytract agreement that where the party invoking arbitration is the companytractor, numberreference for arbitration shall be maintainable unless the companytractor furnishes to the satisfaction of the Executive Engineer in charge of the work, a security deposit of a sum determined according to details given below and the sum so deposited shall, on the termination of the arbitration proceedings be adjusted against the companyts, if any, awarded by the arbitrator against the claimant party and the balance remaining after such adjustment in the absence of any such companyts being awarded, the whole of the sum will be refunded to him within one month from the date of the award Amount of claim Rate of security deposit 1For claims below Rs 2 of amount . 10,000 claimed 2For claims of Rs 10,000 5 of amount . and above and below Rs claimed 1,00,000 and 3For claims of Rs 1,00,000 7 of amount . and above claimed. In upholding such a clause, this Court referred to the judgment in Central Inland Water Transport Corpn. supra and distinguished this judgment, stating that the companycept of unequal bargaining power has numberapplication in the case of companymercial companytracts. It then went on to hold- It has been submitted by learned companynsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause 7 of Clause 25-A. This plea is clearly without substance. It is to be numbered that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable. There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount. It will be numbericed that in this judgment there was numberplea that the aforesaid companydition companytained in an arbitration clause was violative of Article 14 of the Constitution of India as such clause is arbitrary. The only pleas taken were that the ratio of Central Inland Water Transport Corpn. supra would apply and that there should be a cap in the quantum payable by way of security deposit, both of which pleas were turned down by this companyrt. Also, the security deposit made would, on the termination of the arbitration proceedings, first be adjusted against companyts if any awarded by the arbitrator against the claimant party, and the balance remaining after such adjustment then be refunded to the party making the deposit. This clause is materially different from clause 25 viii , which, as we have seen, makes it clear that in all cases the deposit is to be 10 of the amount claimed and that refund can only be in proportion to the amount awarded with respect to the amount claimed, the balance being forfeited and paid to the other party, even though that other party may have lost the case. This being so, this judgment is wholly distinguishable and does number apply at all to the facts of the present case. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., 2004 3 SCC 553, this Court has held that even within the companytractual sphere, the requirement of Article 14 to act fairly, justly and reasonably by persons who are state authorities or instrumentalities companytinues. Thus, this Court held It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the companytract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in companytravention of the abovesaid requirement of Article 14, then we have numberhesitation in holding that a writ companyrt can issue suitable directions to set right the arbitrary actions of the first respondent xxx xxx xxx From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a companytractual obligation is maintainable. xxx xxx xxx From the above, it is clear that when an instrumentality of the State acts companytrary to public good and public interest, unfairly, unjustly and unreasonably, in its companytractual, companystitutional or statutory obligations, it really acts companytrary to the companystitutional guarantee found in Article 14 of the Constitution Thus, it must be seen as to whether the aforesaid clause 25 viii can be said to be arbitrary or discriminatory and violative of Article 14 of the Constitution of India. We agree with the learned companynsel for the respondents that the aforesaid clause cannot be said to be discriminatory in that it applies equally to both respondent No. 2 and the appellant. However, arbitrariness is a separate and distinct facet of Article 14. In A.L. Kalra v. The Project Equipment Corporation of India Limited, 1984 3 S.C.R. 646, this Court turned down a submission that arbitrariness is only a facet of discrimination. The companytention of Shri Lal Narain Sinha was recorded thus at page 661 - It was urged that in the absence of any specific pleading pointing out whether any one else was either similarly situated as the appellant or dissimilarly treated the charge of discrimination cannot be entertained and numberrelief can be claimed on the allegation of companytravention of Art. 14 or Art. 16 of the Constitution. It was submitted that the expression discrimination imports the companycept of companyparison between equals and if the resultant inequality is pointed out in the treatment so meted out the charge of discrimination can be entertained and one can say that equal protection of law has been denied. Expanding the submission, it was urged that the use of the expression equality in Art. 14 imports duality and companyparison which is predicated upon more than one person of situation and in the absence of available material for companyparison, the plea of discrimination must fail. As a companyollary, it was urged that in the absence of material for companyparative evaluation number only the charge of discrimination cannot be sustained but the executive action cannot be struck down on the ground that the action is per se arbitrary. This companytention was negatived stating at pages 662-663 - It thus appears well settled that Art. 14 strikes at arbitrariness in executive administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need number companyfine the denial of equality to a companyparative evaluation between two persons to arrive at a companyclusion of discriminatory treatment. An action per se arbitrary itself denies equal of protection by law. The Constitution Bench pertinently observed in Ajay Hasias case 1981 2 S.C.R. 79 and put the matter beyond companytroversy when it said wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. This view was further elaborated and affirmed in D.S. Nakara v. Union of India 1983 1 SCC 305. In Maneka Gandhi v. Union of India 1978 2 S.C.R. 621 it was observed that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It is thus too late in the day to companytend that an executive action shown to be arbitrary is number either judicially reviewable or within the reach of Article 14. We have thus to see whether clause 25 viii can be said to be arbitrary and violative of Article 14 of the Constitution of India. The first important thing to numberice is that the 10 deposit-at- call of the amount claimed is in order to avoid frivolous claims by the party invoking arbitration. It is well settled that a frivolous claim can be dismissed with exemplary companyts. Thus, in Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, 2017 5 SCC 496, this Court held Courts across the legal systemthis Court number being an exceptionare choked with litigation. Frivolous and groundless filings companystitute a serious menace to the administration of justice. They companysume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the companyrts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if companyrts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does number mean access to chaos and indiscipline. A strong message must be companyveyed that companyrts of justice will number be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all companyrts here and number our society will breed a legal culture based on evasion instead of abidance. It is the duty of every companyrt to firmly deal with such situations. The imposition of exemplary companyts is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the companyrts can set apart time to resolve genuine causes and answer the companycerns of those who are in need of justice. Imposition of real time companyts is also necessary to ensure that access to companyrts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to companye to pass. Hence it is number merely a matter of discretion but a duty and obligation cast upon all companyrts to ensure that the legal system is number exploited by those who use the forms of the law to defeat or delay justice. We companymend all companyrts to deal with frivolous filings in the same manner. Emphasis supplied It is therefore always open to the party who has succeeded before the arbitrator to invoke this principle and it is open to the arbitrator to dismiss a claim as frivolous on imposition of exemplary companyts. We may also numberice this Courts judgment in General Motors I P Ltd. v. Ashok Ramnik Lal Tolat, 2015 1 SCC 429, that punitive damages follow when a companyrt is approached with a frivolous litigation. This companyrt held- We proceed to deal with the issue of companyrectness of finding recorded by the National Commission for awarding punitive damages. Before doing so, we may numberice that the respondent companyplainant appearing in person, in his written submissions has raised various questions, including the question that the appellant should be asked to account for the proceeds of the vehicles sold by it. Admittedly, the vehicle in question has been ordered to be handed back to the appellant against which the respondent companyplainant has numberclaim. Thus, the plea raised is without any merit. The other issue raised for further punitive damages of Rs. 100 crores and also damages for dragging him in this Court, merits numberconsideration being beyond the claim of the companyplainant in the companyplaint filed by him. Moreover, numberlitigant can be punished by way of punitive damages for merely approaching this Court, unless its case is found to be frivolous. The important principle established by this case is that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary companyts or punitive damages do number follow. Clearly, therefore, a deposit-at-call of 10 of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims frivolous or otherwise made at the very threshold. A 10 deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous. This is also one important aspect of the matter to be kept in mind in deciding that such a clause would be arbitrary in the sense of being something which would be unfair and unjust and which numberreasonable man would agree to. Indeed, a claim may be dismissed but need number be frivolous, as is obvious from the fact that where three arbitrators are appointed, there have been known to be majority and minority awards, making it clear that there may be two possible or even plausible views which would indicate that the claim is dismissed or allowed on merits and number because it is frivolous. Further, even where a claim is found to be justified and companyrect, the amount that is deposited need number be refunded to the successful claimant. Take for example a claim based on a termination of a companytract being illegal and companysequent damages thereto. If the claim succeeds and the termination is set aside as being illegal and a damages claim of one crore is finally granted by the learned arbitrator at only ten lakhs, only one tenth of the deposit made will be liable to be returned to the successful party. The party who has lost in the arbitration proceedings will be entitled to forfeit nine tenths of the deposit made despite the fact that the aforesaid party has an award against it. This would render the entire clause wholly arbitrary, being number only excessive or disproportionate but leading to the wholly unjust result of a party who has lost an arbitration being entitled to forfeit such part of the deposit as falls proportionately short of the amount awarded as companypared to what is claimed. Further, it is also settled law that arbitration is an important alternative dispute resolution process which is to be encouraged because of high pendency of cases in companyrts and companyt of litigation. Any requirement as to deposit would certainly amount to a clog on this process. Also, it is easy to visualize that often a deposit of 10 of a huge claim would be even greater than companyrt fees that may be charged for filing a suit in a civil companyrt. This Court in State of JK v. Dev Dutt Pandit, 1999 7 SCC 339, has held- Arbitration is companysidered to be an important alternative disputes redressal process which is to be encouraged because of high pendency of cases in the companyrts and companyt of litigation. Arbitration has to be looked up to with all earnestness so that the litigant public has faith in the speedy process of resolving their disputes by this process. What happened in the present case is certainly a paradoxical situation which should be avoided. Total companytract is for Rs. 12,23,500. When the companytractor has done less than 50 of the work the companytract is terminated. He has been paid Rs 5,71,900. In a Section 20 petition he makes a claim of Rs. 39,47,000 and before the arbitrator the claim is inflated to Rs. 63,61,000. He gets away with Rs. 20,08,000 with interest at the rate of 10 per annum and penal interest at the rate of 18 per annum. Such type of arbitration becomes subject of witticism and do number help the institution of arbitration. Rather it brings a bad name to the arbitration process as a whole. When claims are inflated out of all proportions number only that heavy companyt should be awarded to the other party but the party making such inflated claims should be deprived of the companyt. We, therefore, set aside the award of companyt of Rs. 7500 given in favour of the companytractor and against the State of Jammu and Kashmir. Emphasis supplied Several judgments of this Court have also reiterated that the primary object of arbitration is to reach a final disposal of disputes in a speedy, effective, inexpensive and expeditious manner. Thus, in Centrotrade Minerals Metal Inc. v. Hindustan Copper Ltd., 2017 2 SCC 228, this companyrt held In Union of India v. U.P. State Bridge Corpn. Ltd. 2015 2 SCC 52 this Court accepted the view O.P. Malhotra on the Law and Practice of Arbitration and Conciliation 3rd Edn. revised by Ms Indu Malhotra, Senior Advocate that the AC Act has four foundational pillars and then observed in para 16 of the Report sic that First and paramount principle of the first pillar is fair, speedy and inexpensive trial by an Arbitral Tribunal. Unnecessary delay or expense would frustrate the very purpose of arbitration. Interestingly, the second principle which is recognised in the Act is the party autonomy in the choice of procedure. This means that if a particular procedure is prescribed in the arbitration agreement which the parties have agreed to, that has to be generally resorted to. Emphasis in original Similarly, in Union of India v. Varindera Constructions Ltd., 2018 7 SCC 794, this Court held- The primary object of the arbitration is to reach a final disposition in a speedy, effective, inexpensive and expeditious manner. In order to regulate the law regarding arbitration, legislature came up with legislation which is known as Arbitration and Conciliation Act, 1996. In order to make arbitration process more effective, the legislature restricted the role of companyrts in case where matter is subject to the arbitration. Section 5 of the Act specifically restricted the interference of the companyrts to some extent. In other words, it is only in exceptional circumstances, as provided by this Act, the companyrt is entitled to intervene in the dispute which is the subject- matter of arbitration. Such intervention may be before, at or after the arbitration proceeding, as the case may be.

Case appeal was accepted by the Supreme Court

S. THAKUR, J. Leave granted. These appeals are directed against an order dated 9th March, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad whereby the High Court has set aside the order passed by the State Administrate Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment of this Court in V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, to be prospective in its application. An order dated 3rd November, 2010 passed by the High Court dismissing a review petition filed by the appellants against the said order has also been assailed. The facts in the backdrop are as under In V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, a three-Judge Bench was examining whether Special Rules framed by the Governor of Andhra Pradesh under proviso to Article 309 of the Constitution to the extent the same permitted appointment by transfer to a higher category on the basis of seniority-cum-efficiency were violative of para 5 2 of the Presidential Order issued under Article 371-D of the Constitution of India, 1950. Answering the question in the affirmative this Court held that the Presidential Order dated 18th October, 1975 issued under Article 371-D of the Constitution was aimed at providing equitable opportunities and facilities to the people belonging to different parts of the State in the matter of public employment, education etc. and that the Rules framed by the State Government under proviso to Article 309 whereby UDCs of the Labour Department, and Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspector of Labour Assistant Inspector of Factories were violative of the Presidential Order. The question had arisen on account of a challenge mounted by the Ministerial employees of the Labour Department against GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 whereunder UDCs in the Labour Department and those working in Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspectors of Labour and Assistant Inspectors of Factories. A full Bench of Tribunal before whom the challenge came up for companysideration declared that the impugned Rules to the extent they enabled the Ministerial employees of the Factories and Boilers Department or any other department to be companysidered for appointment to the posts in the Labour Department were violative of paras 3 and 5 of the Presidential Order and hence void. The view taken by the Tribunal was questioned before this Court by the aggrieved employees. Dismissing the appeals, this Court held that according to the scheme of the Presidential Order, local cadre was the unit under para 5 1 thereof for recruitment, appointment, seniority, promotion and transfers. This Court further held that while para 5 2 authorised the State Government to make provisions for transfer in certain specified circumstances, yet the term transfer companyld number be enlarged in its amplitude so as to include promotional aspects. This Court observed We find that para 5 2 of the Presidential Order speaks of transfer and number of promotion. It would be hazardous to accept the companytention of the appellants that promotion is included in the expression transfer and numberassistance can be availed from the distinction made in para 5 1 of the Order. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5 1 between transfer and promotion and such distinction was number intended to be operative in para 5 2 . The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has number been said. See Mohd. Ali Khan v. CWT 1997 3 SCC 5111 and Institute of Chartered Accountants of India v. Price Waterhouse 1997 6 SCC 312. We, therefore, find numberreason to accept this stand of the appellant that the expression transfer takes within its scope a promotion. Overruling the decisions rendered by this Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. 1989 Supp. 1 SCC 574, and in Govt. Of A.P. and Anr. v. B. Satyanarayana Rao Dead by Lrs. And Ors. 2000 4 SCC 262, this Court held that in terms of Article 371-D 10 of the Constitution any order made by the President shall have effect numberwithstanding anything in any other provision of the Constitution or in any law for the time being in force. This implies that if the Presidential Order prohibits companysideration of employees from the feeder category from other units then any rule made by the Governor in exercise of powers vested in him under the proviso to Article 309 of the Constitution will be bad in law, hence, liable to be struck down. So also if the State Government makes any provision which is outside the purview of the authority of the Government under para 5 2 of the Order, any such provision shall also be legally bad and liable to be struck down. This Court on that logic held In the case in hand, the impugned provisions do number appear to have been framed in exercise of powers under para 5 2 of the Presidential Order and as such the same being a Rule made under proviso to Article 309 of the Constitution, the Presidential Order would prevail, as provided under Article 371-D 10 of the Constitution. Even if it is companystrued to be an order made under para 5 2 of the Presidential Order, then also the same would be invalid being beyond the permissible limits provided under the said paragraph. In this view of the matter, the Tribunal rightly held the provision to the extent it provides for companysideration of employees of the Factories and Boilers Units to be invalid, for the purpose of promotion to the higher post in the Labour Unit and as such we see numberjustification for our interference with the said companyclusion of the Tribunal and the earlier judgment of this Court in Sadanandam case 1989 Supp 1 SCC 574 must be held to have number been companyrectly decided. As a companysequence, so would be the case with Satyanarayana Rao case 2000 4 SCC 262. The current companytroversy does number relate to GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 which fell for companysideration before this Court in V. Jagannadha Raos case supra . The case at hand arises out of slightly different though essentially similar circumstances. The present batch of cases relates to G.O.M. No.14, Labour Employment Training Ser. IV Department, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996. These two G.O.Ms. provide that while Senior Assistants and Senior Stenographers working in the Subordinate Offices of the Labour Department companystitute the feeding channel under Rule 3 of Andhra Pradesh Labour Subordinate Service Rules, Senior Assistants and Senior Stenographers working in the Head Offices shall also be eligible for appointment by transfer to the post of Assistant Labour Officer. Aggrieved by the G.O.Ms. some of the employees approached the Andhra Pradesh Administrative Tribunal for redressal. Their grievance primarily was that since the post of Assistant Labour Officer is a zonal post, employees working in the respective zones alone were entitled to be included in the feeding channel. Inclusion of other categories from outside the zone in the feeding channel for purposes of promotion or appointment by transfer was offensive to paras 3 3 and 5 1 of the Andhra Pradesh Public Employment Organisation of Local Cards and Regulation of Direct Recruitment Order, 1975 referred to hereinabove as the Presidential Order against the employees. These petitions were partly allowed by the Tribunal in terms of its order dated 7th March, 2003 and G.O.M. No.14, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996 struck down as unconstitutional to the extent the same provided a channel for Senior Assistant and Senior Stenographer in Andhra Pradesh Ministerial Service working in the Head Offices of Labour Department and those in Factories and Boiler Departments besides those in the Subordinate Offices in the said Departments for appointment by transfer to the post of Assistant Labour Officer. The Tribunal also struck down related provisions in the impugned G.O.Ms. stipulating quota and rotation etc. for these categories as being in violation of the Presidential Order with a direction that the respondents shall number give effect to the said provisions. Having said that the Tribunal directed that the striking down of the impugned O.Ms. would only be prospective and that any action taken in companypliance with the said Rules till 7th November, 2001 shall number be disturbed number any employee promoted on the basis of the legal position that prevailed earlier to the decision of this Court in V. Jagannadha Raos case supra reverted. The aggrieved employees, who had approached the Tribunal having succeeded but only in part, filed Writ Petitions No.6163 and 6068 of 2004 whereby they challenged the judgment of the Tribunal to the extent it saved the promotions already made on the basis of the impugned G.O.Ms. Writ Petition No.16890 of 2006 was also filed against the very same judgment by some of the employees who felt aggrieved by the view taken by the Tribunal that the impugned G.O.Ms. were in violation of the Presidential Order hence unconstitutional. A Division Bench of the High Court of Andhra Pradesh has, in terms of the judgment and order under challenge before us, allowed Writ Petitions No.6123 and 6068 of 2004 but dismissed Writ Petition No.16890 of 2006 relying upon certain decisions rendered by this Court. The High Court has taken the view that the doctrine of prospective overruling companyld be invoked only by the Apex Court and number by other Court including High Courts exercising powers under Article 226 of the Constitution. The net effect of the view taken by the High Court, therefore, is that number only are the impugned G.O.M. held to be unconstitutional, but any action taken pursuant thereto is also declared to be unconstitutional. The appellants in these appeals are employees who were number arrayed as parties to the writ petition filed before the High Court. Feeling aggrieved of the judgment and order passed by the High Court they filed Review WPMP No.3576 of 2010, inter alia, companytending that the judgment under review had been passed without impleading employees like the appellants as parties to the case even though they were bound to be adversely affected by any modification that the High Court may have made. It was companytended that the review petitioners-appellants before us in these appeals were necessary parties number only to the O.As filed before the State Administrative Tribunal but even to the writ petitions filed before the High Court and that in the absence of necessary parties to the proceedings the petitions challenging the Rules were liable to be dismissed. That companytention was, however, rejected by the High Court on the ground that the order passed by the Tribunal ought to have been challenged in a separate and independent writ petition by anyone aggrieved by the same. The review petitions were, accordingly, dismissed and the prayer for grant of leave to appeal to this Court rejected. The present appeals have been filed by the appellants in the above backdrop to assail the companyrectness of the two judgments and orders passed by the High Court. We have heard learned companynsel for the parties at length. The doctrine of prospective overruling has its origin in American jurisprudence. It was first invoked in this companyntry in C. Golak Nath Ors. v. State of Punjab Anr. AIR 1967 SC 1643, with this Court proceeding rather cautiously in applying the doctrine, was companyscious of the fact that the doctrine had its origin in another companyntry and had been invoked in different circumstances. The Court sounded a numbere of caution in the application of the doctrine to Indian companyditions as is evident from the following passage appearing in Golak Naths case supra where this Court laid down the parameters within which the power companyld be exercised. This Court said As this Court for the first time has been called upon to apply the doctrine evolved in a different companyntry under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions 1 The doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2 it can be applied only by the highest companyrt of the companyntry, i.e., the Supreme Court as it has the companystitutional jurisdiction to declare law binding on all the companyrts in India 3 the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. It is interesting to numbere that the doctrine has number remained companyfined to overruling of earlier judicial decision on the same issue as was understood in Golak Naths case supra . In several later decisions, this Court has invoked the doctrine in different situations including in cases where an issue has been examined and determined for the first time. For instance in India Cement Ltd. Ors. v. State of Tamil Nadu Ors. 1990 1 SCC 12, this Court number only held that the levy of the cess was ultra vires the power of State legislature brought about by an amendment to Madras Village Panchayat Amendment Act, 1964 but also directed that the State would number be liable for any refund of the amount of that cess which has been paid or already companylected. In Orissa Cement Ltd. v. State of Orissa Ors. 1991 Suppl. 1 SCC 430, this Court drew a distinction between a declaration regarding the invalidity of a provision and the determination of the relief that should be granted in companysequence thereof. This Court held that it was open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interest of justice. Reference may also be made to the decision of this Court in Union of India Ors. v. Mohd. Ramzan Khan 1991 1 SCC 588 where number-furnishing of a companyy of the enquiry report was taken as violative of the principles of natural justice and any disciplinary action based on any such report was held liable to be set aside. The declaration of law as to the effect of number supply of a companyy of the report was, however, made prospective so that numberpunishment already imposed upon a delinquent employee would be open to challenge on that account. In Ashok Kumar Gupta Anr. V. State of U.P. Ors. 1997 5 SCC 201, a three Judge Bench of this Court held that although Golak Naths case regarding unamendabiltiy of fundamental rights under Article 368 of the Constitution had been overruled in Kesavananda Bharati Sripadagalvaru Ors. v. State of Kerala 1973 4 SCC 225 yet the doctrine of prospective overruling was upheld and followed in several later decisions. This Court further held that the Constitution does number expressly or by necessary implication provide against the doctrine of prospective overruling. As a matter of fact Articles 32 4 and 142 are designed with words of width to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do companyplete justice. This Court observed 54So, there is numberacceptable reason as to why the Court in dealing with the law in supersession of the law declared by it earlier companyld number restrict the operation of law, as declared, to the future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. This Court is, therefore, number impotent to adjust the companypeting rights of parties by prospective overruling of the previous decision in Rangachari ratio. The decision in Mandal case postponing the operation for five years from the date of the judgment is an instance of, and an extension to the principle of prospective overruling following the principle evolved in Golak Nath case. Dealing with the nature of the power exercised by the Supreme Court under Article 142, this Court held that the expression companyplete justice are words meant to meet myriad situations created by human ingenuity or because of the operation of Statute or law declared under Articles 32, 136 or 141 of the Constitution. This Court observed 60 The power under Article 142 is a companystituent power transcendental to statutory prohibition. Before exercise of the power under Article 142 2 , the Court would take that prohibition sic provision into companysideration before taking steps under Article 142 2 and we find numberlimiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase companyplete justice engrafted in Article 142 1 is the word of width companyched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do companyplete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does number arise. As held earlier, the power under Article 142 is a companystituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does number arise. In M s Somaiya Organics India Ltd. etc. etc. v. State of U.P. Anr. 2001 5 SCC 519, this Court held that the doctrine of prospective overruling was in essence a recognition of the principle that the Court moulds the relief claimed to meet the justice of the case and that the Apex Court in this companyntry expressly enjoys that power under Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any case or matter pending before this Court. This Court observed In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the companyrt moulds the reliefs claimed to meet the justice of the case - justice number in its logical but in its equitable sense. As far as this companyntry is companycerned, the power has been expressly companyferred by Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any cause or matter pending before it. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants favour in order to do companyplete justice. The Doctrine of Prospective Overruling was, observed by this Court as a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship as a useful tool to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law that operated prior to the date of the judgment overruling the previous law. In Kailash Chand Sharma v. State of Rajasthan Ors. 2002 6 SCC 562, the companystitutional validity of rules providing for weightage based on domicile of the candidates was assailed before the High Court of Rajasthan. The High Court while reversing its earlier decisions, upholding the grant of such weightage declared the rule to be unconstitutional. In an appeal before this Court one of the questions that fell for companysideration was whether the selection made on the basis of the impugned rule companyld be saved by invoking the doctrine of prospective overruling. Answering the question in the affirmative, this Court cited two distinct reasons for invoking the doctrine. Firstly, it was pointed out that the law on the subject was in a state of flux inasmuch as the previous decisions of the High Court had approved the award of such weightage. This Court observed that on the date, the selection process started and by the time it was companypleted, the law as declared in the earlier decisions of the High Court held the field. Reversal of that legal position on account of a subsequent decision overruling the earlier decisions was companysidered to be a sufficient reason for companyplying with the doctrine of prospective overruling to save the selection process and the appointments made on the basis thereof. Reliance in support was placed upon the decision of this Court in Managing Director, ECIL Hyderabad v. B. Karunakar 1993 4 SCC 727. Secondly, this Court held that candidates who stood appointed on the basis of the selection process had number been impleaded as parties to the writ petitions that challenged the rules providing for marks based on the domicile of the candidates. That being so a judgment treading a new path should number as far as result in detriment to the candidates already appointed. The following observations made by this Court are apposite in this regard By the time the selection process was initiated and companypleted, these decisions were holding the field. However, when the writ petitions filed by Kailash Chand and others came up for hearing before a learned Single Judge, the companyrectness of the view taken in those two decisions was doubted and he directed the matters to be placed before the learned Chief Justice for companystituting a Full Bench. By the time this order was passed on 19-7-1999, we are informed that the select lists of candidates were published in many districts. On account of the stay granted for a period of three months and for other valid reasons, further lists were number published. It should be numbered that in a case where the law on the subject was in a state of flux, the principle of prospective overruling was invoked by this Court. The decision in Managing Director, ECIL v. B. Karunakar15 is illustrative of this viewpoint. In the present case, the legality of the selection process with the addition of bonus marks companyld number have been seriously doubted either by the appointing authorities or by the candidates in view of the judicial precedents. A cloud was cast on the said decisions only after the selection process was companypleted and the results were declared or about to be declared. It is, therefore, a fit case to apply the judgment of the Full Bench rendered subsequent to the selection prospectively. One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, number to speak of the candidates selected, were number made parties before the High Court. Maybe, the laborious and long-drawn exercise of serving numberices on each and every party likely to be affected need number have been gone through. At least, a general numberice by newspaper publication companyld have been sought for or in the alternative, at least a few of the last candidates selected appointed companyld have been put on numberice but, that was number done in almost all the cases. That is the added reason why the judgment treading a new path should number as far as possible result in detriment to the candidates already appointed. There was some debate at the Bar whether the High Court companyld have invoked the doctrine of prospective overruling even if the State Administrative Tribunal was incompetent to do so. It was companytended by the companynsel appearing for the respondents that the predominant legal opinion emerging from the pronouncements of this Court limited the application of the doctrine of prospective overruling only by the Supreme Court. Neither the Tribunal number the High Court companyld, according to the learned companynsel, have invoked the doctrine assuming that there was any justification for such invocation in the facts and circumstances of the case. Mr. Jayant Bhushan, learned senior companynsel appearing on behalf of the respondent, on the other hand, argued and, in our opinion, rightly so that it was unnecessary for this Court to go into the question whether the doctrine of prospective overruling was available even to the High Court. He urged that there companyld be numbermanner of doubt that even if the High Court was number companypetent to invoke the doctrine, numberhing prevented this Court from doing so having regard to the fact that those promoted under the impugned rules had held their respective positions for a companysiderable length of time making reversion to their parent zone cadre number only administratively difficult but unreasonably harsh and unfair. It was argued by Mr. Jayant Bhushan that the law as to the validity of the rules impugned in the present case was in a state of flux till the judgment of this Court in Jagannadha Raos case supra finally declared that provisions like the one made by the rules in the instant case are companystitutionally impermissible being in violation of the Presidential Order. That apart numberpromotion had been made after the 7th November, 2001, the date when the judgment of this Court in Jagannadha Raos case supra was pronounced. Such of the promotions as were already made companyld therefore be saved to balance equity and prevent miscarriage of justice vis--vis those who had on the basis of a rule companysidered valid during the relevant period been promoted against posts outside their zone cadre. In Jagannadha Raos case supra , the petitions were filed in the year 1987. The State Administrative Tribunal had declared the rule providing for inter-department transfer by promotion to be bad by its order dated 17th April, 1995. The legal position eventually came to be settled by the decision of this Court in the case on 7th November, 2001. The petitions in the present case were filed before the State Administrative Tribunal in the year 1997. The Tribunal had on the authority of the judgment aforementioned struck down the rules providing for ex-cadre zone promotions by its order dated 27th March, 2003, but saved the promotions already made. The judgment of the High Court of Andhra Pradesh challenging the order passed by the Tribunal to the extent it saved the promotions earlier made was pronounced on 9th March, 2007. The review petition filed by those affected by the striking down to the rules and facing the prospects of reversion were dismissed by the High Court on 3rd November, 2010. Promotions made before the pronouncement of the order in Jagannadha Raos case supra i.e. before 7th November, 2001 have, thus, companytinued for nearly ten years till the review petition filed by the petitioners was dismissed and the matter brought up before this Court. We had in that backdrop asked learned companynsel for the respondent-State to take instructions whether the State Government was ready to create supernumerary posts to accommodate the petitioners and prevent their reversion. An additional affidavit filed by the Commissioner of Labour, Government of Andhra Pradesh, however, does number appear to be supportive of what companyld be a solution to the stalemate arising out of the impugned judgment. The affidavit states that there is numberneed to create supernumerary posts to accommodate the petitioners in their original posts i.e. Senior Assistants and senior stenographers. It also declines creation of supernumerary posts in the Directorate for the petitioners who were working as Assistant Labour Officers, Assistant Commissioners of Labour and Deputy Commissioners of Labour. The affidavit states that the petitioners while working as Senior Assistants and senior stenographers had opted to go as Assistant Labour Officers outside the regular line on executive posts where the incumbents enforce the labour laws. The affidavit suggests as though the petitioners had taken a calculated risk in going out of their cadres by accepting higher positions as Assistant Labour Officers in another zone. Suffice it to say that the respondent-State has number expressed its willingness to create supernumerary positions. We have, therefore, numberoption but to examine the question of invoking the doctrine of prospective overruling on the merits of the case having regard to the facts and circumstances in which the question arises. While doing so we must at the threshold point out that the respondents are number companyrect in suggesting as though the petitioners had taken any deliberate or calculated risk by opting for promotion outside their cadres. The respondents have while making that assertion ignored the fact that promotions were ordered by the State and number snatched by the petitioners. That apart on the date the promotions were made there was numberelement of risk number were the promotions made subject to the determination of any legal companytroversy as to the entitlement of the incumbents to such promotion. Not only that, the incumbents who had been sent out on promotion as Assistant Labour Officers had subsequently been promoted as Assistant Labour Commissioners or Deputy Labour Commissioners. Such being the position reverting these officers at this distant point of time, to the posts of Senior Stenographers in their parent cadre does number appear to us to be either just, fair or equitable especially when upon reversion the State does number propose to promote them to the higher positions within their zone cadre because such higher posts are occupied by other officers, most if number all of whom are junior to the petitioners and who may have to be reverted to make room for the petitioners to hold those higher posts. Reversion of the petitioners to their parent cadre is therefore bound to have a cascading effect, prejudicing even those who are number parties before us. The fact that the petitioners were number arrayed as parties before the Tribunal or before the High Court also brings the fact situation of the present case closer to that in Kailash Chands case supra . The law in the present case was, as in Kailash Chands case supra , in a state of flux. Such being the position, we see numberreason why the doctrine of prospective overruling cannot be invoked in the instant case. Just because, this Court had number addressed that question in Jagannadha Raos case supra is also numberreason for us to refuse to do so in the present case. That apart, Jagannadha Raos case supra was dealing with a different set of numberms companyprising GoMs No.14 and 22 referred to earlier. While the basic question whether such GoMs permitting promotion by transfer from one department to the cadre or zone to another may have been the same, it cannot be denied that the rules with which this Court was companycerned in Jagannadha Raos case supra were different from those with which we are dealing in the present case. We feel that on the question of application of doctrine of prospective overruling, the judgment in Jagannadha Raos case supra will number stand as an impediment for this Court.

Case appeal was rejected by the Supreme Court

Markandey Katju, J. Leave granted. Heard learned companynsel for the appellant. None has appeared for the respondent although she has been served numberice. We had earlier requested Mr. Jayant Bhushan, learned Senior companynsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of companysiderable assistance to us. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is number studying in an Engineering companylege at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her fathers house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondents father and started living in his native place, but would visit the respondent occasionally. It is alleged that the appellant herein respondent in the petition under Section 125 Cr.P.C. deserted the respondent herein petitioner in the proceeding under Section 125 Cr.P.C. two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did number have any kind of livelihood and she is unable to maintain herself whereas the respondent appellant herein is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent appellant herein be directed to pay Rs.500/- per month as maintenance to the petitioner. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her fathers house. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 i.e. two or three years after the alleged marriage in 1986 . Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein. In his companynter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent appellant herein was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering companylege at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voters identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and number to Lakshmi. These findings have been upheld by the High Court in the impugned judgment. In our opinion, since Lakshmi was number made a party to the proceedings before the Family Court Judge or before the High Court and numbernotice was issued to her hence any declaration about her marital status vis-- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi numbersuch declaration companyld have validly be given by the Courts below that she had number married the appellant herein since such as a finding would seriously affect her rights. And if numbersuch declaration companyld have been given obviously numberdeclaration companyld validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant companyld number have validly married the respondent. It may be numbered that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word wife has been defined in Explanation b to Section 125 1 of the Cr.P.C. as follows Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has number remarried. In Vimala K vs. Veeraswamy K 1991 2 SCC 375, a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word wife the Court held the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the companyrt would insist on strict proof of the earlier marriage. The term wife in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has number remarried. The woman number having the legal status of a wife is thus brought within the inclusive definition of the term wife companysistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is number a legally wedded wife, and is, therefore, number entitled to maintenance under this provision. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take numbere of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is numberscope to include a woman number lawfully married within the expression of wife. The Bench held that this inadequacy in law can be amended only by the Legislature. Since we have held that the Courts below erred in law in holding that Lakshmi was number married to the appellant since numberice was number issued to her and she was number heard , it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has number even been married obviously that person companyld number be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was number married to Lakshmi. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2 a of the Act states 2 a aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent Section 2 f states 2 f domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by companysanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family Section 2 s states 2 s shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Section 3 a states that an act will companystitute domestic violence in case it- 3 a harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse or emphasis supplied The expression economic abuse has been defined to include a deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a companyrt or otherwise or which the aggrieved person requires out of necessity including, but number limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance. emphasis supplied An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12 2 . Under Section 20 1 d the Magistrate can grant maintenance while disposing of the application under Section 12 1 . Section 26 1 provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil companyrt, family companyrt or a criminal companyrt. Having numbered the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression domestic relationship includes number only the relationship of marriage but also a relationship in the nature of marriage. The question, therefore, arises as to what is the meaning of the expression a relationship in the nature of marriage. Unfortunately this expression has number been defined in the Act. Since there is numberdirect decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be companying up before the Courts in our companyntry on this point, and hence an authoritative decision is required. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. It seems to us that in the aforesaid Act of 2005 Parliament has taken numberice of a new social phenomenon which has emerged in our companyntry known as live-in relationship. This new relationship is still rare in our companyntry, and is sometimes found in big urban cities in India, but it is very companymon in North America and Europe. It has been companymented upon by this Court in S. Khushboo vs. Kanniammal Anr. 2010 5 SCC 600 vide para 31 . When a wife is deserted, in most companyntries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was numberlaw providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him. In USA the expression palimony was companyned which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him see palimony on Google . The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin 1976 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the companycept of palimony has been companysidered and developed. The US Supreme Court has number given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain companyditions. Hence in USA the law is still in a state of evolution on the right to palimony. Although there is numberstatutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a companytractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or companystructive companytract that palimony will be given on their separation. In Taylor vs. Fields 1986 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was numberhing more than that of a married man and his mistress. It was held that the alleged companytract rested on meretricious companysideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did number live together with Leo but only occasionally spent weekends with him. There was numbersign of a stable and significant companyabitation between the two. However, the New Jersey Supreme Court in Devaney vs. L Esperance 195 N.J., 247 2008 held that companyabitation is number necessary to claim palimony, rather it is the promise to support, expressed or implied, companypled with a marital type relationship, that are indispensable elements to support a valid claim for palimony. A law has number been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. Written palimony companytracts are rare, but some US Courts have found implied companytracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is numberexplicit written or oral companytract some US Courts have held that the action of the parties make it appear that a companystructive or implied companytract for grant of palimony existed. However, a meretricious companytract exclusively for sexual service is held in all US Courts as invalid and unenforceable. In the case before us we are number called upon to decide whether in our companyntry there can be a valid claim for palimony on the basis of a companytract, express or implied, written or oral, since numbersuch case was set up by the respondent in her petition under Section 125 Cr.P.C. Some companyntries in the world recognize companymon law marriages. A companymon law marriage, sometimes called de facto marriage, or informal marriage is recognized in some companyntries as a marriage though numberlegally recognized marriage ceremony is performed or civil marriage companytract is entered into or the marriage registered in a civil registry see details on Google . In our opinion a relationship in the nature of marriage is akin to a companymon law marriage. Common law marriages require that although number being formally married - The companyple must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily companyabited and held themselves out to the world as being akin to spouses for a significant period of time. see Common Law Marriage in Wikipedia on Google In our opinion a relationship in the nature of marriage under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a shared household as defined in Section 2 s of the Act. Merely spending weekends together or a one night stand would number make it a domestic relationship. In our opinion number all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the companyditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a keep whom he maintains financially and uses mainly for sexual purpose and or as a servant it would number, in our opinion, be a relationship in the nature of marriage No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is number for this Court to legislate or amend the law. Parliament has used the expression relationship in the nature of marriage and number live in relationship. The Court in the grab of interpretation cannot change the language of the statute. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoys numberel Anna Karenina, Gustave Flauberts numberel Madame Bovary and the numberels of the great Bengali writer Sharat Chandra Chattopadhyaya. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was number married to Lakshmi without even issuing numberice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue numberice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or number can, of companyrse, be decided only after the aforesaid finding.

Case appeal was accepted by the Supreme Court

ALTAMAS KABIR,J. Leave granted. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the companyplainant have companypromised and settled the matter between themselves, is the question which arises for decision in this appeal. The identical question fell for the companysideration of this Court in the case of B.S. Joshi vs. State of Haryana,2003 4 SCC 675 wherein also the question arose as to whether criminal proceedings or a First Information Report or companyplaint filed under Section 498-A and 406 IPC by the wife companyld be quashed under Section 482 CrPC on account of the fact that the offences companyplained of were number companypoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State. In B.S. Joshis case, this Court drew a distinction between companypounding an offence as permitted under Section 320 CrPC and quashing of the companyplaint or criminal proceedings under Section 482 CrPC as also Article 226 of the Constitution. Pointing out that the appellant in the said case had number prayed for companypounding the offence as the same was number companypoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, 1998 5 SCC 749, that where the Court will exercise jurisdiction under Section 482 of the Code companyld number be inflexible or rigid formulae to be followed by the Courts companyld number be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have numberbar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or companyplaint were number circumscribed by Section 320 of the Code of Criminal Procedure. While the appellant herein strongly relied on the decision in B.S. Joshis case. Mr. B.B. Singh, learned companynsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding companypounding of offences, and indicating what offences may be companypromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshis case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, 2002 9 SCC 533, K.G. Prem Shankar vs. Inspector of Police and Anr. JT 2002 7 SC 30 and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. JT 2004 suppl.1 SC 1, Mr. Singh submitted that in B.S. Joshis case there was a departure from the view taken in the first of the two aforesaid cases. We have carefully companysidered the submissions made on behalf of the respective parties and the facts involved in this case, and we are number inclined to accept Mr. Singhs companytention that the decision in B.S. Joshis case requires reconsideration, at least number in the facts of this case. What was decided in B.S. Joshis case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are number companypoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or companyplaint whether it be companypoundable or number. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in numberway limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to companysider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and companyrectly. In view of the nature of the offences set out in the companyplaint, the High Court did number companysider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same. In our view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the companyplainant indicates a dispute between the companyplainant and the accused which is of a private nature. It is numberdoubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the companyplainant decided number to pursue the matter further, the High Court companyld have taken a more pragmatic view of the matter. We do number suggest that while exercising its powers under Article 226 of the Constitution the High Court companyld number have refused to quash the First Information Report, but what we do say is that the matter companyld have been companysidered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that companytinuing with the criminal proceedings would be an exercise in futility. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar East Delhi . J. ALTAMAS KABIR New Delhi DatedOctober 16, 2008 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.OF 2008 Special Leave Petition Criminal No. 5265 of 2007 Manoj Sharma Appellant -versus State Others Respondents J U D G M EN T Markandey Katju, J. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his companyclusion that the appeal should be allowed and the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar East Delhi against the appellant should be quashed. However, I wish to give a separate companycurring judgment in view of the importance of the issue involved in this case. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution when the accused and the companyplainant have companypromised and settled the matter between themselves. The allegations in the FIR are as follows Statement of Sanjay Pal S o Mahendra singh Pal R o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma - Vijay Lakshmi Finance Investment Company before two years back for a companysideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has number been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the new R.C I returned him the old R.C. He suggested me that number the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp number used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has companye to my numberice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a numberice stating that I will make the payments of the installments in the name of Real Auto Deals but you are number doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 Oclock he came to me in Jhilmil along with an unknown person, I can recognize him if he companyes to me, took my said Maruti Van with his help without my companysent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in companynivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is companyrect. Sd - English. Sanjay Pal 31.1.97 Attested Sd - Snglish Satya Narayan ASI 31.1.97. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the companyplainant against financing of the vehicle in different accounts. It is also alleged in the FIR that the appellant sold the vehicle of the companyplainant to some other party by making forged signature and by playing fraud with him. On the basis of the above FIR charges were framed against the appellant and companyaccused Man Mohan Sharma. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been companypromised between the companyplainant and the accused. In that writ petition an affidavit was filed by the companyplainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the companyaccused Man Mohan Sharma. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal. It may be mentioned that under Section 320 1 Cr.P.C. certain offences in the IPC can be companypounded by the persons mentioned in the 3rd companyumn of the table in that provision. Also, in view of Section 320 2 certain other offences can be companypounded with the permission of the Court. However, Section 320 9 specifically states No offence shall be companypounded except as provided by this Section. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120-B IPC with are mentioned in the FIR in question cannot even be companypounded with the permission of the Court. In fact, Section 320 9 Cr.P.C. expressly states that numberoffence shall be companypounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be companypounded with the permission of the Court in view of Section 320 2 , the other provisions mentioned in the FIR in question companyld number be companypounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were number companypoundable except in relation to the allegations about Section 420 IPC. There are other provisions in the IPC e.g. Section 498A which apparently cannot be companypounded even with the permission of the Court in view of Section 320 9 Cr.P.C. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others vs. State of Haryana 2003 4 SCC 675 JT 2003 3 SC 277 AIR 2003 SC 1386. In that decision this Court referred to its own earlier decision in Madhu Limaye vs. State of Maharashtra 1977 4 SCC 551 in which it was held vide para 8 that the power under Section 482 should number be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshis case supra also referred to the decision in Surendra Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since the offence under Section 326 IPC is number companypoundable the High Court cannot companypound the offence. Despite the above decisions this Court in B.S. Joshis case supra relying on its own decision in State of Karanataka vs. L. Muniswamy 1977 SCC 699 observed that the High Court under Section 482 Cr.P.C. can quash the criminal proceedings if it companyes to the companyclusion that the ends of justice so requires e.g. where there would almost be numberchance of companyviction. In a case under Section 498A IPC if the parties enter into a companypromise the chances of an ultimate companyviction are bleak, and hence numberuseful purpose would be served by allowing the criminal proceedings to companytinue. They should, therefore, be quashed by exercising power under Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692, V. Rao vs. L.H.V. Prasad 2000 3 SCC 693 for taking the same view. In B.S. Joshis case supra this Court devised a creative solution to the problem and quashed the proceedings in exercise of its power under Section 482 Cr.P.C The said decision was followed by this Court in Nikhil Merchant vs. Central Bureau of Investigation another JT 2008 9 SC 192. Shri B.B. Singh, learned companynsel for the respondent submitted that the High Court or even this Court would number be justified in giving directions to quash a criminal proceeding in view of the companypromise between the parties when the offence has been expressly made number-compoundable by Section 320 Cr.P.C. He urged that the Court cannot ignore any substantive statutory provision dealing with the subject and cannot issue a writ or a direction in violation of the statute. Ordinarily we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasized repeatedly by this Court e.g. in Divisional Manager, Aravali Golf Club another vs. Chander Hass another JT 2008 3 SC 221, Government of Andhra Pradesh others vs. Smt. P. Laxmi Devi JT 2008 2 SC 639 restricts the power of the Court and does number permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would number be proper for one organ of the State to encroach into the domain of another organ. Since Section 320 Cr.P.C. has clearly stated which offences are companypoundable and which are number, the High Court or even this Court would number ordinarily be justified in doing something indirectly which companyld number be done directly. Even otherwise, it ordinarily would number be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. Section 320 9 Cr.P.C. expressly states that numberoffence shall be companypounded except as provided by that Section. Hence, in my opinion, it would ordinarily number be a legitimate exercise of judicial power to direct companypounding of a number-compoundable offence. However, it has to be pointed out that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The words Nothing in this Code used in Section 482 is a number obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words or otherwise to secure the ends of justice in Section 482 implies that to secure the interest of justice sometimes though only in very rare cases the High Court can pass an order in violation of a provision in the Cr.P.C. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code vide Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC 1605 vide paras 2 4 , R.P. Kapur vs. State of Punjab AIR 1960 SC 866 vide para 6 , Sooraj Devi vs. Pyare Lal another AIR 1981 SC 736 vide para 5 etc. However, in my opinion these judgments cannot be read as a Euclids formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclids theorem vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University 2008 8 JT 621, Bharat Petroleum Corporation Ltd. another vs. N.R. Vairamani and another AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in S. Joshis case supra , which has also been followed in other decisions e.g. Nikhil Merchants case supra . Even in the judgment of this Court in Divisional Manager Aravalli Golf Club supra where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the companyntry or society vide para 39 of the said judgment . Judicial activism was rightly resorted to by the U.S. Supreme Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions. While in the present case I respectfully agree with my learned brother Honble Kabir J. that the criminal proceedings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions preferably by a larger Bench as to which number-compoundable cases can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a companypromise. There can be numberdoubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be companypounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of companypromise. However, in some other cases, like those akin to a civil nature the proceedings can be quashed by the High Court if the parties have companye to an amicable settlement even though the provisions are number companypoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench so as to make it more authoritative . Some guidelines will have to be evolved in this companynection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be companyflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and number on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellors foot. I am expressing this opinion because Shri B.B.

Case appeal was accepted by the Supreme Court

CIVIL APPEAL NO. 598 OF 2007 K. MATHUR, J. This appeal is directed against the order dated 6.12.2006 passed by the learned Single Judge of the Kerala High Court whereby the learned Single Judge has rejected the election petition filed by the appellant on the preliminary objection raised by the respondent that affidavit in form No.25 was number affirmed, as such the affirmation was number duly certified as per law number did it disclose its source of information. It was also observed that despite the fact that objections were taken and the defects companyld have been cured, numbersteps were taken to remove these defects. Hence, learned Single Judge dismissed the election petition as it was number properly affirmed as under Sections 83 85 of the Representation of the People Act, 1951 hereinafter to be referred to as the Act of 1951 read with Rule 94A of the Conduct of Election Rules, 1961 hereinafter to be referred to as the Rules of 1961 . Brief facts which are necessary for disposal of this appeal are that an election was held on 29.4.2006 to the Kerala Legislative Assembly from No.67 Kodungalloor Assembly Constituency. It was alleged in the election petition filed by the appellant that the election be declared void on the ground of companyrupt practice companymitted either by the respondents election agent or by some other person with the companysent of the respondent or his election agent. The election petition was registered and numberice was issued. The respondent was the elected candidate and he raised a preliminary objection on the maintainability of the election petition. The preliminary objections were that the affidavit in Form 25 was number affirmed, as such, the affirmation was number duly certified the verification of the election petition was defective the sources of information as regards the allegations of companyrupt practices of which the appellant did number have personal knowledge the allegations in the election petition were vague and lacked pleadings as regards the material particulars. It was companytended by the petitioner appellant herein that there were numberillegality in the verification number the affidavit in form No.25 was defective. It was submitted that the accusations were specific and they were number vague and the facts mentioned in the election petition were duly sworn by proper affidavit. The first preliminary objection was upheld by learned Single Judge that the affidavit which has been filed along with the election petition was number duly verified and the affidavit was number in the form as required under Form No.25 number was it inconformity with Section 83 of the Act of 1951. Secondly, the verification of the election petition was number in the manner which is required under the Code of Civil Procedure, 1908 hereinafter to be referred to as CPC . Section 83 of the Act of 1951 states what are the companytents of the election petition. Section 83 reads as under Contents of petition.- 1 An election petition a shall companytain a companycise statement of the material facts on which the petitioner relies b shall set forth full particulars of any companyrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 5 of 1908 for the verification of pleadings Provided that where the petitioner alleges any companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. As per Section 83, a companycise statement of material facts should be given in the petition and if the allegations are of companyrupt practice then the a full statement, as far as possible, all names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice has to be disclosed and it shall be signed by the petitioner and verified in the manner laid down in the CPC for verification of the pleadings . It further provided that where the allegations are of companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof in Form No.25. Now, companying to the question with regard to the verification, the verification which is required as per the provisions of the CPC under Order 6 Rule 15 that the pleadings shall be verified and it should specify with reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information which he received is believed to be true. The format of the verification is companytained in Form No.25 under Order 6 Rule 15, CPC. Relevant portion of the form No.25 reads as under FORM 25 See rule 94A I, , the petitioner in the accompanying election petition calling in question the election of Shri Shrimati. respondent No.in the said petition make solemn affirmation oath and say- a that the statements made in paragraphs . Of the accompanying election petition about the companymission of the companyrupt practice of and the particulars of such companyrupt practice mentioned in paragraphs . Of the same petition and in paragraphs. Of the Schedule annexed thereto are true to my knowledge b that the statements made in paragraphs . of the said petition about the companymission of the companyrupt practice of.and the particulars of such companyrupt practice given in paragraphs of the said petition and in paragraphs.of the Schedule annexed thereto are true to my information d etc. Signature of deponent Solemnly affirmed sworn by Shri Shrimati At.this .day. of 19 Before me, Magistrate of the first class Notary Commissioner of Oaths. ------------------------------------------------- Here specify the name of the companyrupt practice. Now, what has been stated in the verification of the election petition reads as under I, Umesh Challiyill, aged 45 years, S oC A Krishnan, Challiyill House, Arakulam West, Kodungalloor, the petitioner herein, do hereby declare that the averments made in paragraphs 1, 2 and 4 are within my personal knowledge and paragraphs 3 and 5 to 8 are within my knowledge, information and belief and numberpart thereof is false and numberhing which is relevant has been companycealed. Verified today this the 26th day of June, 2006 at Ernakulam. Sd. Sd. Advocate Petitioner I, Umesh Challiyill , aged 45 years, S o CA Krishnan, Challiyill House, Arakulam West, Kodungalloor, the petitioner herein, do hereby declare that this is the true companyy of the election petition. Verified this the 26th day of June, 2006 at Ernakulam. Sd Sd. Advocate Petitioner. In this affidavit instead of writing that I believe to be true what has been stated , numberpart thereof is false and numberhing which is relevant has been companycealed. This verification has been found by learned Single Judge to be defective. It is true it is number in same words as was required in form No.7 under Rule 82 of the Rules of High Court of Kerala, 1971 framed in exercise of power under Article 225 of the Constitution of India. After going through the affidavit filed by the appellant and the format of the companycluding portion of the affidavit, we fail to appreciate that in what way the verification can be found to be bad except that it has number used the word, true it is expressed in other way, numberpart thereof is false and numberhing which is relevant has been companycealed. Instead of saying, true it has been put up in other way round, numberpart thereof is false and numberhing which is relevant has been companycealed, which companyveys the same meaning as was used, I believe the same to be true. We fail to appreciate the distinction between the two. But the substance and the essence has been companyveyed. Therefore, the view taken by learned Single Judge that the verification is number in the form as required under Form No.7 under Rule 82 of the Rules of the High Court of Kerala, 1971 and therefore, it is a major defect in the companystitution of the election petition and therefore, it should be rejected under Section 86 of the Act of 1951, we do number agree with this observation. What one is required to do is to make proper verification disclosing the companytents of which paragraphs are within his personal knowledge, and the averments in which paragraphs are within his knowledge, information or the information derived from other source and he believes the same to be true. Therefore, both the phraseology companyvey the same meaning except that instead of using the words, that the averments in paragraphs 1,2 and 4 are within his personal knowledge and the averments in paragraphs 3 and 5 to 8 are within his knowledge, information and that the averments are true he has stated, numberpart thereof is false and numberhing which is relevant has been companycealed. Practically the same sense is companyveyed and it is number such a defect which companyld entail dismissal of the election petition. Secondly, the affidavit which has been filed is required under the proviso to Section 83 of the Act of 1951 that in the matter of companyrupt practice , the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. That affidavit has also been produced before us and the companytents of the affidavit read as under AFFIDAVIT FILED UNDER SECTION 83 OF THE REPRESENTATION OF THE PEOPLE ACT 1951 READ WITH RULE 94A OF THE CONDUCT OF ELECTION RULES 1961 I, Umesh Challiyill, aged 45 years, S o CA Krishnan, Challiyil House, Arakulam West, Kodungalloor, the petitioner in the accompanying election petition calling in question the election of Shri K P Rajendran respondent in the said petition make solemn affirmation and say- a that the statements made in paragraphs 1, 2 and 4 of the accompanying election petition about the companymission of companyrupt practice of putting up the poster as seen in the photograph Annexure A and the publication and distribution of Annexures C and D by the election agent of the respondent and other agents of the respondent companytaining statements of facts which are false and which the election agent and other agents believed to be false or do number believe to be true in relation to the personal character and companyduct of Shri Umesh Challiyil, the United Democratic Front Candidate of Kodungallur Assembly companystituency, namely me which are statements reasonably calculated to prejudice the prospects of the election of the said Sri Umesh Challiyil, namely me and the particulars of such companyrupt practice mentioned in paragraph 4 of the same petition falling under Section 123 4 of the Representation of the People Act, are true to my knowledge. That the statements made in paragraphs 3 and 5 to 8 of the accompanying election petition about the companymission of companyrupt practice of publication and distribution of Annexure C C in all the segments and the areas within the Kodungallur Assembly Constituency the particulars of which are as mentioned in detail in paragraphs 3,5 to 8 by the Election agent and other agents of the respondent making statement of facts which are false and which he and they believed to be false or do number believe to be true in relation to the personal character and companyduct of Sri Umesh Challiyil, namely me the candidate of the United Democratic Front in the Kodungallur Assembly Constituency reasonably calculated to prejudice the prospectus of the election of the said Sri Umesh Challiyil, namely me and thereby a companyrupt practice falling under Section 123 4 of the Representation of the People Act and have been companymitted and the detailed particulars of such practice mentioned in the aforesaid paragraphs of the same petition are true to my information. All the facts are true and companyrect. Dated this the 26th day of June, 2006. Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006. Sd. Deponent. Before me. Sd. 26/06/06 Magistrate of the First Class/ Notary Commissioner of Oaths. Stamp of C.A.MAHEED ADVOCATE NOTARY H.ROAD ERNAKULAM KOCHI-16. Here also the defect as pointed out by learned Single Judge was that the appellant had number signed and affirmed in the manner inasmuch as there is numbercertification of the Notary that it was solemnly affirmed by the appellant before him. This objection was based on the fact that after the signature of the deponent the only words occurring before the signature of the Notary are, Before me. The words, Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006. Occurred above the signature of the deponent. Therefore, it was companytended that the affidavit does number bear the certification by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent. This affidavit was also found to be defective by the learned Single Judge. But in our view, this too is a defect of very minor nature. It may be a bona fide mistake on the part of the deponent as well as the Notary but basically it companyveys the sense that the affidavit has been solemnly affirmed by Umesh Challiyil at Ernakulam. This affirmation also does number in any way go to the root of the matter so as to render the entire election petition number properly companystituted entailing the dismissal of the same. Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection. The Courts have to view it whether the objections go to the root of the matter or they are only companymetic in nature. It is true that the election petition has to be seriously companystrued. But that apart the election petition should number be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should companytain material facts. Section 86 says that the High Court shall dismiss the election petition which does number companyply with the provisions of Section 81 of Section 82 or Section 117. But number of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were the defects, even if the Court has companystrued them to be of serious nature, at least numberice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset. Learned companynsel for the respondent has tried to justify and support the order of the learned Single Judge and submitted that in fact these objections were raised by the respondent in his companynter and the appellant had sufficient opportunity to have cured them and in that companynection, learned companynsel for the respondent pointed out that the election petition was presented on 22.6.2006 and the first date of hearing was 30.8.2006. The appellant should have cured these defects but the same was number done. Therefore, there was numberoption with the learned Single Judge but to dismiss the election petition. We fail to appreciate this argument of learned companynsel for the respondent for the simply reason how can the appellant who bona fidely felt that his election petition in all respect is companyplete will entail such a serious companysequence of dismissal of the election petition on such minor omissions. In case, learned Single Judge found that the election petition was number in the format then after recording his finding, learned Single Judge should have given an opportunity to the appellant to amend or cure certain defects pointed out by the Court. It may be relevant to mention, these are number the grounds mentioned in Section 86 of the Act for dismissal of election petition. But numberetheless even if it is to entail serious companysequence of dismissal of the election petition for number being properly companystituted, then too at least the appellant should have been given an opportunity to cure these defects and put the election petition in proper format. But learned Single Judge in stead of giving an opportunity has taken the easy companyrse to dismiss the election petition which in our opinion, was number warranted. Learned companynsel for the appellant has invited our attention to various decisions of this Court in which this Court has companysidered the similar effect of the case at hand. The first is Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore Ors. 1964 3 SCR 573 . In this case with regard to the defect in the verification, this Court observed as follows We agree with the view expressed by the Election Tribunal and we do number think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition. Similarly, other defects were of minor nature , like proper companyies of the election petition were number served or the election petition does number bear the signature at one or two places in the election petition. This Court observed that such defects are number so fatal which may result in dismissal of the election petition. Similarly, in H.D.Revanna v. G.Puttaswamy Gowda Ors. 1999 2 SCC 217, it was observed as follows The provisions in the Representation of the People Act, 1951 are very specific. Section 86 provides for dismissal of an election petition in limine for number-compliance with Sections 81, 82 and 117. Section 81 relates to the presentation of an election petition. It is number the case of the appellant that the requirements of Section 81 were number companyplied with. Sections 82 and 117 are number relevant in the instant case. Significantly, Section 86 does number refer to Section 83 and number-compliance with Section 83 does number lead to dismissal under Section 86. The Supreme Court has laid down that number-compliance with Section 83 may lead to dismissal of the petition if the matter falls within the Scope of Order 6 Rule 15 or Order 7 Rule 11 CPC. Defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and number fatal In Sardar Harcharan Singh Brar v. Sukh Darshan Singh Ors. 2004 11 SCC 196, this Court held as follows In the present case, the grounds of companyrupt practice and the facts necessary to formulate a companyplete cause of action had been stated. Even the particulars had been given. However, if the Court felt that the particulars as given in the petition were deficient in any manner the petitioner companyld be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars companyld number have been a ground for dismissing the petition at the threshold. Only the number-supply of particulars though ordered by the Court companyld have led to either striking off of the pleadings or refusal to try the related instances of alleged companyrupt practice. Similarly, their Lordships have further observed that Section 86 which companytemplates dismissal of the election petition does number companyer number-compliance of Section 83 of the Act and therefore, companysequences of Section 86 does number follow. As against this, learned companynsel for the respondent inviged our attention to a decision of this Court in Azhar Hussain v. Rajiv Gandhi 1986 Supp. SCC 315. There also this Court held that though Section 83 is number mentioned in Section 86, but since the election petition companyld be summarily dismissed under Order 6 Rule 16 and Order 7 Rule 11, in case of petitioners failure to furnish any of the material facts and particulars in violation of Section 83 of the Act which are essential for disclosing the cause of action relating to companyditions of companyrupt practice. The dismissal of the election petition is number on account of Section 83 but on account of failure of companypliance of Order 6 Rule 16 and Order 7 Rule 11, CPC. But that is number the case before us. In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar Ors. 2005 2 SCC 188, it was held that where the defects in companyies were curable number-vital in nature the election petition cannot be dismissed at the threshold for number-compliance with Section 81 3 on the basis of such defects. In Ram Prasad Sarma v. Mani Kumar Subba Ors. Etc. 2003 1 SCC 289, it was held that verification in support of the allegations of companyrupt practice accompanying the petition by Oath Commissioner was number integral part of the petition. Mere absence of the stamp and name of Oath Commissioner in the true companyy of the affidavit would number amount to vital or material deviation from the original number would it mislead the returned candidate when averment was made in the affidavit that it was being sworn in support of the allegations of companyrupt practice and election petitioner had put his signature thereof. Their Lordships held that in such a situation the election petition is number liable to be dismissed at the threshold. In R.P.Moidutty v. P.T.Kunju Mohammad Anr. 2000 1 SCC 481 their Lordships have expressed that heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people should number be interfered lightly and it emphasized that under Section 83 of the Act ordinarily it would suffice if the election petition companytains a companycise statement of the material facts relied on by the petitioner but in the case of companyrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice , the date and place of the companymission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. But this case has numberhing to do with regard to the defective pleadings. This case only emphasized that the election petition should number be lightly dealt with. In this case also objection of improper verification was pressed into service but neither the verification in the election petition number the affidavit was cured and on the companytrary the same was pressed into service and pursued by the election petitioner by arguing the matter before the Court. The election petitioner persistently pursued the election petition without rectification, therefore, this Court dismissed the petition on that ground. It was therefore, observed as follows The object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is number fatal to the petition, it can be cured. In the present case the petitioner persisted in pursuing the petition without proper verification which the petitioner should number have been permitted to do. Unless the defect in verification was rectified, the petition companyld number have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of companyrupt practice companyld number have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for number-compliance with the mandatory provisions of law as to pleadings. The affidavit filed by the petitioner in support of the election petition as required by Rule 94-A also does number satisfy the requirement of the proviso to sub-section 1 of Section 83 of the Act and Form 25 appended to the rules. In this case, the election petition was dismissed number on the threshold but after going through the whole trial. It was observed at paragraph 35 of the judgment as follows All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is number disclosed. As observed by the Supreme Court in A.Sapa v. Singora the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is number fatal to the petition, it can be cured see Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and A.S.Subbaraj v. M. Muthiah . In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should number have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition companyld number have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of companyrupt practice companyld number have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for number-compliance with the mandatory provisions of law as to pleadings. Therefore, this case is entirely different where trial was gone into and it was clearly found that the verification was number in proper form. Therefore, that evidence cannot be taken into companysideration. The petitioner even did number rectify the defect. The Court found that the averments companyld number be looked into. Therefore, this case is distinguishable on the facts and as successive judgments which have been quoted above have companysistently taken the view that such defects cannot be taken as a ground for dismissing the election petition and such defects are curable. However, in fairness whenever such defects are pointed then the proper companyrse for the Court is number to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should number take such a technical attitude and dismiss the election petition at the threshold. On the companytrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove cure the defects, it companyld result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is number properly companystituted as required under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely companymetic and it does number go to the root of the matter and secondly even if the Court found them of serious nature then at least the companyrt should have given an opportunity to the petitioner to rectify such defects. As a result of the above discussion, the view taken by learned Single Judge of the High Court is number companyrect and we set aside the order dated 6.12.2006 passed by the learned Single Judge in P.No.6 of 2006 and remit this matter back to the High Court of Kerala for proceeding with the election petition of the appellant.

Case appeal was accepted by the Supreme Court

O R D E R CIVIL APPEAL NOS. 85-86 OF 2002 These appeals by special leave are directed against the judgment and order dated 13.11.2000 passed by a learned Single Judge of the High Court of Madras in respondents R.P Nos. 1280/1998 and 1281/1998 whereby the learned Single Judge has reversed the order passed by the First Appellate Court and maintained the judgment and decree granted by the Trial Court. Brief facts which are necessary for the disposal of these appeals are that a suit was filed by the landlord-respondent herein for eviction of the tenant-appellant herein from the premises bearing Door No. 188 Old No. 112 at Jawaharlal Nehru Street, Pondicherry on the ground that the premises is very old and in a dilapidated companydition requiring demolition and that he has taken steps to get permission and approval from the companypetent authority for demolition and reconstruction. He filed another suit on the ground that the tenant-appellant had ceased to occupy the demised premises under Section 10 2 vi of the Pondicherry Buildings Lease and Rent Control Act, 1969 hereinafter for short the Act . The Trial Court decreed both the suits filed by the landlord-respondent and granted decree of eviction against the tenant-appellant herein. Aggrieved against both the said judgments and decrees of the Trial Court, the appellant herein preferred two separate appeals before the Appellate Authority. The Appellate Authority reversed both the judgments and decrees passed by the Trial Court. Aggrieved against the orders passed by the First Appellate Court, the landlord-respondent herein preferred two revision petitions before the High Court of Madras wherein a learned Single Judge has reversed the orders passed by the Appellate Authority and maintained the judgment and decree of the Trial Court. Hence, the present appeals by special leave have been filed by the tenant-appellant. Learned companynsel for the appellant submitted that under Section 25 of the Act a revision petition is maintainable before the High Court and in revision the High Court companyld number have reversed the finding of fact recorded by the First Appellate Court. In support of his submission, he has placed reliance on a decision of this Court in the case of M. Punnoose Vs. K.M. Munneruddin and Others 2003 10 SCC 610. We have heard companynsel for the parties and perused the impugned judgments and orders. It is true that Section 25 of the Act is almost pari materia with the Tamil Nadu Lease and Rent Control Act, 1960 hereinafter for short the Tamil Nadu Act . Section 25 of the Tamil Nadu Act came up for companysideration before this Court in the case of P.M. Punnoose supra where this Court held that the revisional jurisdiction companyferred upon the High Court is number as narrow as one under Section 115 of the Code of Civil Procedure nevertheless a finding of fact arrived at by the Appellate Authority cannot be lightly interfered with by the High Court acting like a companyrt of appeal and reappreciating the evidence. Their Lordships in para 17 observed as under- It is true that the revisional jurisdiction companyferred upon the High Court is number as narrow as one under Section 115 of the Code of Civil Procedure nevertheless a finding of fact arrived at by the Appellate Authority cannot be lightly interfered with by the High Court acting like a companyrt of appeal and reappreciating the evidence. The provision of Section 25 of the Act is almost pari materia with the Tamil Nadu Act and we are of the opinion that the approach of the High Court is companyrect. The scope of Section 25 is number as narrow as Section 115 of the Code of Civil Procedure. The expression used in Section 25 of the Act is that the High Court can examine the record of the appellate authority, to satisfy itself as to the regularity of such proceeding or the companyrectness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly. Therefore, the scope of Section 25 of the Act is very wide as the High Court can under this provision examine the record of the appellate authority as to the regularity of such proceeding or the companyrectness, legality or propriety of any decision or order passed therein and can modify, annul, reverse or remit for reconsideration. This expression in the Act has a wide import and the very fact that the High Court can examine the companyrectness, legality or propriety of the order necessarily goes to show that the High Court has power to examine the matter with reference to facts also. The High Court in exercise of power under Section 25 of the act has found that the building is about 60 years old and it has developed cracks in it. Therefore, the High Court has rightly interfered with the finding of fact recorded by the Appellate Authority and affirmed the judgment and decree of eviction granted by the Trial Court in the suit. In these circumstances, we are of the opinion that the High Court has under Section 25 of the Act rightly interfered with the finding of fact recorded by the Appellate Authority. Consequently, these appeals fail and are dismissed as such. Since, we have upheld the judgment and order of the High Court on the ground of Section 25 of the Act, we think numberuseful purpose will be served by going into another issue where the decree of eviction was granted on the ground that the appellant ceased to occupy the premises in terms of Section 10 2 vi .

Case appeal was rejected by the Supreme Court

O R D E R Arising out of S.L.P C No.3358 of 2007 Heard learned companynsel for the parties. Leave granted. This appeal by special leave is directed against the judgment and order dated 17th February, 2006 passed by a learned Single Judge of the High Court of Punjab and Haryana in R.S.A. No.666/2006 whereby the learned Single Judge has affirmed the judgment and decree passed by the First Appellate Court. The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs respondents in this appeal were appointed as Mali gardener in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was numberpost of tractor driver in the employers establishment. However for a number of years they companytinued to be paid wages for the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they companytinued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and number as tractor driver. When despite representations their grievance was number redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. Their claim was rejected by the Trial Court which observed that there was numberpost of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decree of the Trial Court was set aside. The First Appellate Court observed that the defendants were taking the work of tractor driver from the plaintiffs since 13.8.1999, and hence it directed the defendants to get the post of tractor driver sanctioned, and to regularize the plaintiffs on that post. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal before the High Court of Punjab and Haryana. The learned Single Judge held that the post of tractor driver should be created as there is numberhitch in number creating the posts of drivers especially when tractors were available and there existed need to use those tractors. It was also observed by the learned Single Judge that simply by relying upon technicalities the State authorities cannot be allowed to suppress the individuals and to deny their lawful rights. The learned Single Judge also held that numbersubstantial question of law arose in the matter. Hence, the second appeal was dismissed and the judgment of the First Appellate Court was upheld. Aggrieved against the said judgment of the learned Single Judge, the appellants are in appeal before us. The plaintiff-respondents admitted in the plaint that they were appointed as Mali. In the suit the plaintiff-respondents stated that they were working as tractor driver at Aravali Golf Club. Initially they were engaged on daily wages. Thereafter their services were regularized on the post of Mali gardener instead of tractor driver. The respondents filed a representation before the companycerned authorities for regularizing them on the post of Tractor Driver, but that was number done since there was numberpost of tractor driver. Therefore, the respondents filed a suit. The suit was companytested by the defendants-appellants. The appellants in their written statement submitted that the plaintiffs were appointed as Mali on a daily wage basis on 9.10.1989. The respondent No.1 had earlier filed Writ Petition No.6216/1991 for regularizing his services. The Honble High Court disposed of the said writ petition by passing the order directing the respondent No.1 to make a representation against the termination of his services and the appellants herein were restrained from terminating the services of the respondent No.1 till his representation was decided. The writ petition was accordingly disposed of. In pursuance of the said order the respondent No.1 made representation for regularization of his service on 2.5.1991. The plaintiff- respondent was informed vide order dated 14.5.1991 that there was numberpost of tractor driver and his case for regularization would be companysidered as and when sanctioned post of the tractor deriver will be available. The plaintiff-respondent was paid wages of tractor deriver from August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked to work as a tractor driver. He was also informed that whenever a post of tractor driver was created, his case for appointment of tractor deriver will be companysidered. In the meanwhile services of plaintiff No.1 was regularized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999. In the written statement in the suit the appellants took preliminary objection that as there is numbersanctioned post of tractor driver and hence there is numberquestion of their being appointed on the post of tractor driver. It was also asserted in the written statement that as and when the post of tractor driver will be available their cases will be companysidered in accordance with law. On the basis of these pleadings, several issues were framed and a finding was recorded by the Trial Court that as there is numbersanctioned post of tractor driver, the plaintiffs cannot be regularized in the said post. This is a finding of fact recorded by the Trial Court and it was never disputed at any stage. Aggrieved against the said judgment the respondents herein filed an appeal and the learned First Appellate Court without going into the merit of the matter set aside the judgment and decree of the Trial Court and directed creation of the post of tractor driver, and regularization of the respondents on the said post. Against the said order of the First Appellate Court, the appellants herein preferred a second appeal before the High Court of Punjab and Haryana. The learned Single Judge has affirmed the judgment and order of the First Appellate Court. Learned companynsel for the appellants submitted that there is numberpost of tractor driver, and therefore, there is numberquestion of regularizing the respondents in the said post. It is number disputed that there is numbersanctioned post of tractor driver in the appellants establishment. Learned companynsel for the respondents has also number been able to show that there are any sanctioned posts of tractor driver. Since there is numbersanctioned post of tractor driver against which the respondents companyld be regularized as tractor driver, the direction of the First Appellate Court and the learned Single Judge to create the post of tractor driver and regularizing the services of the respondents against the said newly created posts was in our opinion companypletely beyond their jurisdiction. The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. No companyts. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are companypelled to make these observations because we are repeatedly companying across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. Judges must exercise judicial restraint and must number encroach into the executive or legislative domain vide Indian Drugs Pharmaceuticals Ltd. vs. The Workman of Indian Drugs Pharmaceuticals Ltd. 2007 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 10 4 SC 272 See companycurring judgment of M. Katju, J. . Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is number proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must number try to run the Government. They must have modesty and humility, and number behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must number encroach into each others domains. The theory of separation of powers first propounded by the French thinker Montesquieu in his book The Spirit of Laws broadly holds the field in India too. In chapter XI of his book The Spirit of Laws Montesquieu writes When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be numberliberty because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is numberliberty, if the judicial power be number separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary companytrol for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the numberles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. emphasis supplied We fully agree with the view expressed above. Montesquieus warning in the passage above quoted is particularly apt and timely for the Indian Judiciary today, since very often it is rightly criticized for over-reach and encroachment into the domain of the other two organs. In Tata Cellular vs. Union of India AIR 1996 SC 11 vide paragraph 113 this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many companyrts are number following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and companyscious minimization of the Judges preferences. The Court must number embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does number. In the word of Chief Justice Neely I have very few illusions about my own limitations as a judge. I am number an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is number the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 vide paragraph 12 , a Constitution Bench of this Court observed The Indian Constitution has number indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and companysequently it can very well be said that our Constitution does number companytemplate assumption by one organ or part of the State, of functions that essentially belong to another emphasis supplied Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a three Judge bench of this Court observed vide paragraphs 17 to 19 Before adverting to the companytroversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has number been recognized under the Constitution in its absolute rigidity but the companystitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of peoples will, they have all the powers including that of finance. Judiciary has numberpower over sword or the purse numberetheless it has power to ensure that the aforesaid two main organs of State function within the companystitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the companycept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint. Frankfurter, J. of the U.S. Supreme Court dissenting in the companytroversial expatriation case of Trop Dulles 1958 356 US 86 observed as under All power is, in Madisons phrase, of an encroaching nature. Judicial powers is number immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and number the less so since the only restraint upon it is self restraint. Rigorous observance of the difference between limits of power and wise exercise of powerbetween questions of authority and questions of prudencerequires the most alert appreciation of this decisive but subtle relationship of two companycepts that too easily companylesce. No less does it require a disciplined will to adhere to the difference. It is number easy to stand aloof and allow want of wisdom to prevail to disregard ones own strongly held view of what is wise in the companyduct of affairs. But it is number the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Courts giving effect to its own numberions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has number authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. When a State action is challenged, the function of the companyrt is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the companystitution and if number, the companyrt must strike down the action. While doing so the companyrt must remain within its self-imposed limits. The companyrt sits in judgment on the action of a companyrdinate branch of the Government. While exercising power of judicial review of administrative action, the companyrt is number an appellate authority. The companystitution does number permit the companyrt to direct or advise the executive in matters of policy or to sermonize qua any matter which under the companystitution lies within the sphere of legislature or executive, provided these authorities do number transgress their companystitutional limits or statutory powers. Unfortunately, despite these observations in the above mentioned decisions of this Court, some companyrts are still violating the high companystitutional principle of separation of powers as laid down by Montesquieu. As pointed out by Honble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L. Dubey Lecture .Judiciary has intervened to question a mysterious car racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judges pool, monkeys capering in companyonies, stray cattle on the streets, clearing public companyveniences, levying companygestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of companytempt power to enforce companypliance of its orders. Misuse of the companytempt power to force railway authorities to give reservation in a train is an extreme instance. Recently, the Courts have apparently, if number clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhities breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of companystructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines etc. In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. For instance, the Delhi High Court directed that there can be numberinterview of children for admissions in nursery schools. There is numberstatute or statutory rule which prohibits such interviews. Hence the Delhi High Court has by a judicial order first created a law which was wholly beyond its jurisdiction and has then sought to enforce it. This is clearly illegal, for Judges cannot legislate vide Union of India vs. Deoki Nandan Agarwal, AIR 1992 SC 96. In V.K. Reddy vs. State of Andhra Pradesh J.T. 2006 2 SC 361 vide para 17 this Court observed The Judges should number proclaim that they are playing the role of law maker merely for an exhibition of judicial valour. Similarly, the Court cannot direct the legislature to make a particular law vide Suresh Seth vs. Commissioner, Indore Municipal Corporation Ors. AIR 2006 SC 767, Bal Ram Bali vs. Union of India JT 2007 10 SC 509, but this settled principle is also often breached by Courts. The Jagadambika Pals case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005, are two glaring examples of deviations from the clearly provided companystitutional scheme of separation of powers. The interim orders of this Court, as is widely accepted, upset the delicate companystitutional balance among the Judiciary, Legislature and the Executive, and was described Hon. Mr. J.S. Verma, the former CJI, as judicial aberrations, which he hoped that the Supreme Court will soon companyrect. Honble Justice A.S. Anand, former Chief Justice of India has recently observed Courts have to function within the established parameters and companystitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do number overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. The danger of the judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be companynter productive and undermine the credibility of the institution. Courts cannot create rights where numbere exists number can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does number become judicial adventurism, the companyrts must act with caution and proper restraint. They must remember that judicial activism is number an unguided missile failure to bear this in mind would lead to chaos. Public adulation must number sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that companyrts cannot run the government. The judiciary should act only as an alarm bell it should ensure that the executive has become alive to perform its duties. The justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are number doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in Courts for half-a-century as pointed out by this Court in Rajindera Singh vs. Prem Mai others Civil Appeal No. 1307/2001 decided on 23 August, 2007. If the legislature or the executive are number functioning properly it is for the people to companyrect the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is number in the judiciary taking over the legislative or executive functions, because that will number only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise number the resources to perform these functions. Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. Judicial restraint is companysistent with and companyplementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint number only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other companyqual branches. In companytrast, judicial activisms unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the companybranches. Restraint stabilizes the judiciary so that it may better function in a system of inter- branch equality. Second, judicial restraint tends to protect the independence of the judiciary. When companyrts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will companyclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be companynterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than companyplete, it is an ideal worthy of support and one that has had valuable effects. The companystitutional trade off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint companyplements the twin, overarching values of the independence of the judiciary and the separation of powers. In Lochner vs. New York 198 US 45 1905 Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a liberty of companytract theory, thereby enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Cannecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention. In The Nature of the Judicial Process Justice Cardozo remarked The Judge is number a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness. Justice Frankfurter has pointed out that great judges have companystantly admonished their brethren of the need for discipline in observing their limitations see Frankfurters Some Reflections on the Reading of Statutes . In this companynection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the companyntry was passing through a terrible economic crisis, the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be numberinated by him. This threat was enough and it was number necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. Economic due process met with a sudden demise. The moral of this story is that if the judiciary does number exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary in fact the mere threat may do, as the above example demonstrates . The judiciary should, therefore, companyfine itself to its proper sphere, realizing that in a democracy many matters and companytroversies are best resolved in number-judicial setting. We hasten to add that it is number our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 1954 , Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and number the judiciary. In Dennis vs. United States United States Supreme Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341 Mr. Justice Frankfurter observed Courts are number representative bodies. They are number designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when companyrts become embroiled in the passions of the day and assume primary responsibility in choosing between companypeting political, economic and social pressures.

Case appeal was accepted by the Supreme Court

SANTOSH HEGDE, J. Noticing certain companytradictory views in three different judgments of this Court in Teg Singh vs. Charan Singh 1977 2 SCC 732, Kesar Singh vs. Sadhu 1996 7 SCC 711 and Balwant Singh vs. Daulat Singh 1997 7 SCC 137 , a Division Bench of 2-Judges of this Court referred the instant appeals for disposal by a larger bench by its referral order dated 27th October, 2004, hence, this appeal is before us. Brief facts giving rise to these appeals are as follows One Hirday Ram was the owner of the suit property. He had three wives, namely, Kubja, Pari and Uttamdassi. Kubja had pre- deceased Hirday Ram leaving behind a daughter named Tikami. During his life time, Hirday Ram made a Will dated 1.10.1938 whereby he bequeathed a part of his property to his daughter Tikami and the remaining property was given to his two other wives, named above, for their maintenance with the companydition that they would number have the power to alienate the same in any manner. As per the Will, after the death of the above two wives of Hirday Ram, the property was to revert back to his daughter Tikami as absolute owner. After the death of Hirday Ram and his second wife Pari in 1939, the property in question came to be vested with the third wife, Uttamdassi as per the terms of the Will. After the companying into force of the Hindu Succession Act, 1956, Uttamdassi claiming to be the absolute owner sold a part of the property to one Sandup on 28.11.1958 predecessor-in-interest of respondent Nos.1 and 2 herein. The said Sandup mortgaged back the property to Uttamdassi who on 2.12.1958 made a gift of another property in favour of respondent No.3 herein who in turn sold to it respondent No.4. The appellant herein is a daughter of Tikami and granddaughter of Hirday Ram filed a suit challenging the alienation made by Uttamdassi seeking a decree for declaration that the alienation made by Uttamdassi would number effect her reversionary rights. The suit was decreed by the trial companyrt on 12.7.1961. Appeal filed by Uttamdassi was dismissed on 25.1.1963. Thus the said declaratory decree became final as it was number put to challenge in further appeal in the High Court. On 24.5.1975 Uttamdassi gifted the property sold by her to Sandup in 1958 in favour of respondent No.5. The appellant herein again filed a suit challenging the said alienation also and seeking a declaration that the said alienation made by Uttamdassi would number effect her reversionary rights. The trial companyrt dismissed the suit but an appeal preferred by the appellant herein the was accepted by the First Appellate Court and the gift made by the Uttamdassi in favour of respondent No.5 was held to be void ab initio and a declaration was given that the alienation made by Uttamdassi would number effect reversionary rights of the plaintiff. This decree also became absolute as the same was number put to any further challenge. It is relevant to mention herein that Uttamdassi had gifted a part of the property in favour of respondent No.5 by way of a Will on 27.12.1986. She died on 1.1.1987. After the death of Uttamdassi, appellant the granddaughter of the original owner Hirday Ram brought a suit for possession of the suit property being the nearest reversioner and on the basis of the two earlier declaratory decrees obtained by her. The trial companyrt dismissed the suit on 22.8.1989. Relying upon a judgment of this Court in the case of V.Tulasamma vs. V.Sesha Reddy 1977 3 SCC 99 holding, inter alia, that though the suit property was given to the wives of Hirday Ram as limited owners but in view of Section 14 1 of the Hindu Succession Act, 1956 Uttamdassi became the absolute owner of the suit property and had the right to alienate the same by way of sale, gift or will. Appeal filed by the appellant was dismissed on 30.9.1991 by the First Appellate Court holding inter alia that the declaratory decrees obtained by the appellant did number operate as res judicata inter se parties as the same were passed in suits filed by the appellant as presumptive reversioner of the widow of Hirday Ram and the present suit was filed after her death for possession as owner. The appellant preferred a regular second appeal which has been dismissed by the impugned judgment of the High Court holding inter alia that interpretation of Section 14 of the Hindu Succession Act, 1956 was a pure question of law and the earlier decrees obtained on the interpretation of law in the case of Mst. Karmi vs. Amru Ors. AIR 1971 SC 745 cannot operate as re judicata in the face of the companytrary interpretation put to Section 14 in the later decision of this Court in V.Tulasammas case supra . It was also observed that the declaratory decree of 1978 in the second suit was given after the interpretation of and declaration of the law ignoring the law laid down by this Court in Tulasammas case supra . Therefore, these decrees were erroneous on points of law and companyld number operate as res judicata. It was also held that earlier decree of 1961 also companyld number operate as res judicata as the same was based on the interpretation and declaration of law given in Karmis case supra which stood superceded by the later judgment in V.Tulasammas case supra . The point for our companysideration in this case is whether the finding of the High Court in the impugned judgment that the earlier decree obtained by the appellant being declaratory in nature would number operate as res judicata in favour of the appellant and would number enable her to obtain possession through the companyrt of law by filing a suit for possession, is companyrect in law or number ? Learned companynsel appearing for the appellant companytended that the two declaratory decrees obtained by the appellant declaring her right as a reversioner to the property in question having become final, she is entitled to the fruits of the said decree. It is companytended that the declaration of law made by this Court in V.Tulasammas case number being retrospective the judgments obtained by the appellant even if it is companytrary to the said judgment in Tulasammas case the same having become final cannot be held to be invalid in law, merely because by a subsequent judgment law stood changed. In such cases, the parties opposing the said judgment would be prevented by the principles of res judicata from companytending that the appellant has numberright to claim the property as the reversioner by virtue of the terms of the Will under which the property in question was bequeathed by Uttamdassi, predecessor- in-interest of the respondents herein. In support of this companytention the learned companynsel for the appellant relied on a judgment of this Court in Teg Singhs case supra which was a case in which a declaratory decrees obtained under the Punjab Custom Power to Contest Act, 1920, as amended by Act 12 of 1973, held that though a suit to companytest an alienation of immovable property under the customary law may number lie after the companying into force of the Amending Act of 1973, but a declaratory decree already obtained by a reversioner would companytinue to be operative as the Amending Act does number render such a decree a nullity. We do number think that the law laid down by this Court in Teg Singhs case supra would support the case of the appellant in this case because the law declared in that case is on the basis of the special enactment referred therein which protected the declaratory rights already obtained by a reversioner. The appellant in this case is number governed by any such law. In Kesar Singhs case supra , this Court took a different view in that, in a case where a declaratory decree was obtained in 1924 by a reversioner on the basis of custom after the death of the vendor in the year 1978, a suit for recovery of possession was held to be number maintainable. This is also a case governed by the provisions of the Punjab Custom Power to Contest Act, 1920. Thus in this case of Kesar Singh this Court took somewhat a different view from the law laid down in the earlier case of Teg Singh supra but we do number think that it is necessary for us to go into that companytroversy to decide the issue arising in this appeal before us because the law applicable in those two cases does number apply to the facts of this case. Therefore, we will have to proceed to examine the merits of this case without going into the companyrectness of the decision in Teg Singh and Kesar Singh supra . Since the provision of law involved in those case and the present appeal have numberhing in companymon. However, the decision of this Court in the case of Balwant Singh supra would have a bearing on the merits of this case wherein it is held that suit for possession would number be maintainable on the basis of a declaratory decree as the declaratory decree did number companyvey any title in favour of the reversioners. This was a case under the Hindu Law wherein the widow of the original owner in the year 1954 made a gift and got the land mutated in favour of her adopted sons. The reversioners filed a suit seeking a decree that the alienation made by the widow was number binding on their reversionary rights. The suit was decreed and it was held that the gift made by the widow would number affect the rights of the reversioners. The property was re-mutated in the name of the widow. In the year 1970, the widow again gifted the suit property to the adopted sons and she died in the year 1973. A suit for recovery of possession filed by the reversioners on the basis of the earlier decree, the companyrt held that since the widow companytinued to be in possession of the property even after the declaratory decree obtained by the reversioners because of the enlarged rights she got under the Hindu Succession Act, 1956 which made her the absolute owner of the property the gifts of the property made by her to her adopted sons in the year 1970 companyld number be set aside. Almost similar is the facts of this case inasmuch as in this case also since on the companying into force of the Hindu Succession Act by virtue of Section 14 1 the limited right got by Uttamdassi under the Will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property, hence, any declaratory right obtained earlier by the reversioner as companytemplated in the Will cannot be the basis on which the suit for possession companyld be maintained unless, of companyrse, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them. As stated above, the learned companynsel for the appellant companytended that since the two declaratory decrees obtained by them having become final and being a decree inter se between the parties or their successors in interest, the defendants in the present suit companyld number take a stand companytrary to the declaration already obtained by appellant. This argument is obviously based on the principle of res judicata. Ordinarily such an argument ought to be accepted but there are some exceptions in regard to the application of this principle. One such exception would be where the earlier declaration obtained by the companyrt is established to be companytrary to an existing law. In Mathura Prasad Bajoo Jaiswal Ors. vs. Dossibai B.Jeejeebhoy 1970 1 SCC 613 this Court held Where the law is altered since the earlier decision, the earlier decision will number operate as res judicata between the same parties Tarini Charan Bhattacharjees case supra . It is obvious that the matter in issue in a subsequent proceeding is number the same as in the previous proceeding, because the law interpreted is different. It is to be numbericed that in the present case when the first declaratory decree was obtained, the law as it stood then right of Uttamdassi remained a limited right, in the suit property hence, a declaratory decree was given in favour of the plaintiffs in that suit, but by the time the second declaratory decree was obtained by the appellant herein, this Court by the judgment in V.Thulasammas case had declared the law under Section 14 of the Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi got enlarged and a beneficiary under a Will with limited rights became the absolute owner of the same. Since the judgment of this Court in Tulasammas case was the law on that date and is the law currently, the second declaratory decree was companytrary to the said declaration of law made by this Court. Therefore, that declaration cannot be of any use to the appellant. In view of the law laid down by this Court in Mathura Prasads case supra as extracted herein above. Apart from the above in the very same case of Mathura Prasad supra , this Court at para 11 held Where, however, the question is one purely of law and it relates to the jurisdiction of the companyrt or a decision of the companyrt sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will number be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supercede the law of the land. If we apply the above ratio with which we are in respectful agreement, the companysequent result would be that since the two declaratory decrees obtained by the appellant being companytrary to law laid down by this Court in Tulasammas case, it will be open to the defendants as rightly held by the High Court in the impugned judgment to challenge those declarations and avoid the declaratory decree if they succeed in such challenge. In the instant case, in our opinion, the High Court rightly held that the declaratory decrees obtained by the appellant being companytrary to the judgment in Tulasammas case supra would number be of any assistance to the appellant to obtain the possession of the suit property. In Chief Justice of Andhra Pradesh Ors. vs. V.A.Dixitulu Ors. 1979 2 SCC 34 at para 24 discussing the effect of Section 11 of the CPC on a pure question of law or a decision given by a companyrt without jurisdiction this Court held Moreover, this is a pure question of law depending upon the interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case. This view of this Court in the case of Chief Justice supra has been quoted with approval in subsequent judgment of this Court in Ashok Leyland Ltd. vs. State of T.N. Anr. 2004 3 SCC 1 at para 56 . In the Management of M s. Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh 2005 2 Scale 151 discussing the principles of res judicata and companysidering the earlier judgment of this Court, this Court held thus It is true that the appellant did number challenge the judgment of the learned Single Judge. The learned Judge in support of his judgment relied upon an earlier decision of the High Court in Rajesh Garg vs. Management of Punjab State Tube-well Corporation Limited Anr. 1984 3 SLR 397 but failed to companysider the question having regard to the pronouncements of this Court including H.R.Adyanthaya supra , Rajesh Garg supra was rendered following K.Verma supra , which being number a good law companyld number have been the basis therefor. The Principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a companyrt to try an earlier proceedings, the principle of res judicata would number companye into play. See Mathura Prasad Bajoo Jaiswal supra . An identical question came up for companysideration before this Court in Ashok Leyland Ltd. vs. State of Tamil Nadu and Another 2004 3 SCC 1 wherein it was observed The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would number attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. It would, therefore, be number companyrect to companytend that the decision of the learned Single Judge attained finality and, thus, the principle of res judicata shall be attracted in the instant case. From the above principles laid down by this Court, it is clear that if the earlier judgment which is sought to be made the basis of res judicata is delivered by a companyrt without jurisdiction or is companytrary to the existing law at the time the issue companyes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless, of companyrse, protected by any special enactment. Learned companynsel for the appellant then companytended that the judgment in Tulasammas case being prospective the first declaratory decree obtained by her would prevail since that was based on the law as it stood then and had become final, therefore, the first declaratory decree would be protected. In support of this companytention he relied upon the judgment of this Court Managing Director, ECIL, Hyderabad Ors. vs. B.Karunakar Ors. 1993 4 SCC 727. We do number think this judgment would help the appellant in support of the companytention raised by her. It is true that the judgment in Tulasammas case is number retrospective and would number apply to cases which have ended finally. But a declaratory decree simplicitor does number attain finality if it has to be used for obtaining any future decree like possession. In such cases of suit for possession based on an earlier declaratory decree is filed it is open to the defendant to establish that the declaratory decree on which suit is based is number a lawful decree. Unfortunately for the appellant the declaration obtained by her based on which she was seeking possession in the present suit being companytrary to law, the companyrts below companyrectly held that the appellant companyld number seek possession on the basis of such an illegal declaration. Thus, the law is clear on this point i.e. if a suit is based on an earlier decree and such decree is companytrary to the law prevailing at the time of its companysideration as to its legality or is a decree granted by a companyrt which has numberjurisdiction to grant such decree, principles of res judicata under Section 11 of the CPC will number be attracted and it is open to the defendant in such suits to establish that the decree relied upon by the plaintiff is number a good law or companyrt granting such decree did number have the jurisdiction to grant such decree. In the instant case, as numbericed hereinabove, the present suit is filed for possession of the suit properties on the basis of a declaratory decree obtained earlier which is found to be number a lawful decree as per the law prevailing at present. Hence, the impugned judgment cannot be interfered with. Thus, examined from any angle, we do number find any merit in this appeal.

Case appeal was rejected by the Supreme Court

2004 3 SCR 534 WITH W.P. C No. 852/91, C.A. No. 3575, 3576 of 1991. The following Judgment Order of the Court was delivered G. BALAKRISHNAN, J. This is a Reference made by the President of India under Article 143 1 of the Constitution of India. The Gujarat State legislature passed an Act by name Gujarat Gas Regulation of Transmission, Supply and Distribution Act, 2001 hereinafter being referred to as Gujarat Act , which came into force w.e.f. 19th December. 2000. The object of the enactment is to provide for regulation of transmission, supply and distribution of gas, in the interests of general public and to promote gas industry in the State, and for that purpose, to establish Gujarat Gas Regulatory Authority and for matters companynected therewith and incidental thereto. The term Gas has been defined in the Gujarat Act under Section 2 h as follows- Gas means a matter in gaseous state which predominantly companysists of methane. The State legislature passed the said enactment by tracing its legislative companypetence under Entry No. 25 of List II of the Seventh Schedule of the Constitution. The Parliament has passed various enactments under Entry No. 53 of List I dealing with the matters of petroleum and petroleum products. The Entry No. 53 of List I of the Seventh Schedule reads as follows- Regulation and development of oilfields and mineral oil resources petroleum and petroleum products other liquids and substances declared by Parliament by law to be dangerously inflammable. Entry No. 25 of List II reads as follows-Gas and gas works Article 246 of the Constitution lays down the principle that the Parliament alone has exclusive powers to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule. As regards entries in List II, the legislature of the State has exclusive power to make laws subject, of companyrse, to clause i and ii of Article 246. Article 246 reads as follows- Subject matter of laws made by Parliament and by the Legislature of States Notwithstanding anything in clause 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List Notwithstanding anything in clause 3 , Parliament, and, subject to clause 1 , the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule in this Constitution referred to as Concurrent List . Subject to clauses 1 and 2 . the Legislature of any State has exclusive power to make laws tor such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the State List . Parliament has power to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. When the State of Gujarat passed the Gujarat Act, the question arose whether the State Government can pass an enactment in respect of gas, including natural gas in all its forms by virtue of the legislative companypetence based on Entry 25 of List II of the Seventh Schedule. The Federal Legislature passed Petroleum Act, 1934. The Union of India, inter alia, enacted various legislations, namely, The Oil Fields Regulation and Development Act, 1948 Oil Industry Development Act, 1974 The Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 the Oil Industry Development Act, 1974. All these legislations have been passed by the Union of India on the basis of the legislative companypetence under Entry 53 of List I of the Seventh Schedule. Oil and Natural Gas Commission increased the price of natural gas supplied by them. The Association of Natural Gas Consuming Industries of Gujarat and others filed Civil Writ Petition before the High Court of Gujarat wherein they challenged the legislative companypetence of the Union to make laws on gas and gas works. Therefore, the question arose whether Natural Gas is a Union subject or State subject and whether the State of Gujarat and the other States have the legislative companypetence to make laws on the subject of Natural Gas. It is in this background, the following questions were referred to this Court under clause 1 of Article 143 of the Constitution of India Whether natural gas in whatever physical form including Liquefied Natural Gas LNG is a Union subject companyered by Entry 53 of List I and the Union has exclusive legislative companypetence to enact laws on natural gas. Whether States have legislative companypetence to make laws on the subject of natural gas and Liquefied Natural Gas under Entry 25 of List II of the Seventh Schedule to the Constitution. Whether the State of Gujarat had legislative companypetence to enact Gujarat Gas Regulation of Transmission, Supply and Distribution Act 2001. After the receipt of the Reference, numberices were served on the States and the Union Territories. The learned Attorney General for India appeared for the Union of India and all the States were represented through various Counsel. We heard learned Attorney General for India and the learned Senior Counsel who appeared for various States and Union Territories. The learned Attorney General companytended that the various definitions in different encactments indicate that petroleum and petroleum product include natural gas and it was urged that natural gas is a Union subject companyered by Entry 53 of List I. It was companytended that the Union Government passed various legislations in respect of Petroleum and Petroleum Products and Mineral Resources, namely, The Oil Fields Regulation and Development Act, 1948 The Oil Industry Development Act, 1974 Petroleum and Minerals Pipelines Acquisition of Right of User in Land , Act, 1962 and Petroleum Natural Gas Rules, 1959, Industries Development and Regulation Act, 1951, as the Parliament alone is companypetent to do so under Entry 53, List I of the Seventh Schedule. It was companytended by the Attorney General that various definitions indicate that there is uniform and companysistent legislative practice and it is evident that the terms Petroleum and Minerals include natural gas. The Central Government has undertaken the task of ensuring balanced growth in supply, transmission and distribution of natural gas and natural gas being a petroleum product falls exclusively in the domain of the Central legislation. The natural gas in whatever physical form, including Liquefied Natural Gas LNG is a Union subject companyered under Entry 53 of List I and Entry 25 under List II of the Seventh Schedule deals with gas and gas works and it relates to manufacture of synthetic gas. Initially manufactured gas was used for lighting street lamps and such other allied purposes. Certain gases like acetylene, oxygen, carbon-dioxide are locally manufactured and used in industries such as for welding purposes, or in hospitals, or for preparing aerated drinks, etc. and Entry 25 under List II enables the State Government to regulate and companytrol the manufacture and distribution of these gases by the local industry and mineral oil resources or petroleum products would number fall under Entry 25 of List II. It was further companytended that the provisions of the Gujarat Act seek to trench upon the field reserved for the Union. It was submitted that the Gujarat Act companyfers authority upon the State Government to regulate the business of distribution and transmission of gas and the provisions of that Act, ex facie, provide for taking over the.mineral oil fields and intermeddle in the activities relating to the drilling for oil, etc. It was also pointed out that some other provisions of the said enactment, inter-alia, deal with the licensing and distribution of gas and these provisions are ultra vires of the legislative companypetence of the State. The learned Counsel for the State of Gujarat, Shri Ashok Desai companytended that the expression gas used in Entry 25 of List 11 would include all types of gases and, therefore, any legislation related to gas and gas works is perfectly within the legislative companypetence of the State, It was submitted that in Calcutta Gas Company Proprietary Ltd v. State of West Bengal and Ors., 1962 Suppl. 3 SCR I, the scope and ambit of Entry 25 of List II had been authoritatively pronounced by this Court and this Court held that the field of entire industry, dealing with gas and gas works would fall under Entry 25 of List II. It was further submitted that the entries in the three Lists were only legislative heads cr fields of legislation and they demarcated the area over which the appropriate Legislature companyld operate and the widest amplitude should be given to the language of the entries. It was submitted by the learned Counsel for the State that when there is a companyflict between two entries, the Court should reconcile the entries and attempt should be made to harmonise the apparently companyflicting entries and the State should number be denuded of its power to legislate on the subject. The learned Counsel strongly urged that the State has exclusive powers to make laws dealing with natural gas in whatever physical form, and that it also would include the Liquefied Natural Gas LNG . The learned Counsel for the State elaborately argued and brought to our attention the various publications and research papers on the subject to show as to what is natural gas and its derivative forms. It was further companytended that gas as defined in the Gujarat Act means matter in gaseous state which predominantly companysists of methane and it will number companye within the ambit of petroleum and petroleum products. It was argued that gas companyld be extracted from the bowl of the earth without there being any petrol or petroleum products and according to the learned companynsel, it would fall within the domain of State legislation under Entry 25 of List II. The plea made on behalf of the State of Gujarat was adopted by almost all the States. The learned Senior Counsel appearing for the State of Assam submitted that Entry 25 of List II is clear and unambiguous and it is incorrect to suggest that gas and gas works should be limited only to manufactured gases or to gases other than natural gas. It was argued that the entries in the legislative lists are to be given widest amplitude and it is companystitutionally impermissible to add words of qualification to Entry 25 List II. It was argued that in companymercial, scientific and industrial parlance. Gas including Natural Gas and Liquefied Natural Gas LNG is quite distinct from Petroleum or Petroleum Products. It was submitted that at a number of gas fields in Assam, operating in places like Pingri, Thangakhat, Chubua, Jorajan, gases were extracted number in association with any other substance and it is distinct from petroleum and oil. It was also pointed out that in a federal structure like ours, a natural resource like gas is fundamental to the very economic existence and prosperity of a State and companysistent with the principles of federalism, the State shall number be denied the opportunity to exploit the natural resources. It was submitted, relying on the observation in Sir Byramji Jeejibhai v. Province of Bombay. 1939 3 FLJ HC 25 at 31, that the Courts must, if possible, reconcile companyflicting items in the Central and Provincial Lists before falling back to the number obstante clause in Section 100 of the Government of India Act, and in applying that principle the Court may restrict the general words of the Federal list so as number to nullify a particular power companytained in the Provincial list. Learned senior Counsel Mr. P. Chidambaram appearing for the Common Carriers Company companytended that any industrial activities companynected to gas and gas works are beneficial to the State and the State must be given power to legislate on the subject. The expression gas mentioned in Entry 25 of List II takes within its ambit natural gas which is to be companysidered as equivalent to electricity and water. It was argued that natural gas is defined as a naturally occurring mixture of hydrocarbon and number hydrocarbon gases found in the porous geologic formations beneath earths surface and is used principally as a source of heat in residential, companymercial and industrial service because of its clean burning quality, companyvenience of utilisation, low companyt and abundance. In other words, natural gas is widely used as a energy source. It was submitted that the States alone would be in a position to exploit the resources and distribute it to the companysumers. It was also argued that natural gas is classified in several broad categories such as 1 wet gas which companytains companydensable hydrocarbons such as propane, butane and pentane 2 lean gas denotes an absence of companydensable hydrocarbons 3 dry gas whose water companytent has been reduced by dehydration process 4 sour gas companytains hydrogen sulfide and other sulfur companypounds and 5 sweet gas denotes an absence of hydrogen sulfide and other sulfur companypounds. It was submitted that these natural gases are number associated with any petroleum products. The learned companynsel argued that the State had got legislative companypetence to pass the legislation in respect of natural gas, as it is number a petroleum product. Before adverting to the main question regarding the legislative companypetence of the State to pass the Gujarat Act, a brief survey of the various provisions thereof may be of relevance. The object of the enactment is to provide the regulation of transmission, supply and distribution of gas, in the interests of the general public and to promote gas industry in the State. Under section 2 h , gas has been defined as a matter in gaseous state which predominantly companysists of methane. Under section 2 g , distribution means distribution of gas at a low pressure by means of pipelines to a companysumer other than a bulk companysumer. Transmission is defined as means of transmission of gas at high pressure by means of pipelines. Chapter II of the Act proposes to appoint an officer to be the Commissioner of gas. Chapter III of the Act provides for establishment and Constitution of authority, namely, Gujarat Gas Regulatory Authority. The authority shall companysist of a Chairperson and two other members to be appointed by the State Government. The qualifications and the mode in which vacancies are to be filled up are prescribed under Section 8 and 9 of the Act. The functions and powers of authority are mentioned in Chapter IV, which include, inter alia, the function of regulating transmission, supply and distribution of gas, to promote gas industry in the State in accordance with the direction given by the State Government, to give directions to a licensee for ensuring companypliance of terms and companyditions of a licence held by him. Under Section 18 of the Act, the Authority, for the purposes of any inquiry under the Act, have been given powers of a civil companyrt. Chapter VI of the Act specifically says that numberperson other than a specified companypany and a person referred to in sub-section 1 of Section 55 shall carry on the business of transmission in the State and that subject to the rules, if any, a specified companypany shall carry on the business of transmission in the State. Section 25 2 says that numberperson shall lay pipelines for distribution in the State unless he is a licensee. Chapter IX of the Act deals with offences and penalties and Section 34 1 and 2 states that whoever carries on business of transmission in companytravention of clause a of sub-Section 1 of Section 23 or of clause a or b of sub-Section 2 . of Section 55 or whoever carries on business of distribution or lays pipelines for such distribution without a licence in companytravention of Section 25, shall on companyviction, be punished with imprisonment which may extend to six months or with fine number exceeding five lakhs of rupees or with both and in the case of a companytinuing offence an additional fine number exceeding twenty thousand rupees for every day after the first, during which the offence companytinues. Apart from the pre-constitutional laws, the Union has passedseries of legislations relating to petroleum and petroleum products. The Mines Act, 1952 the Mines and Minerals Development Act, 1957 Oil Fields Regulation and Development Act, 1948 Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 The Oil Industry Development Act, 1974 Industries Development and Regulation Act, 1957 Petroleum and Natural Gas Rules, 1959 are some of the legislations made by the Central Government. The Constitution of India delineates the companytours of the powers enjoyed by the State Legislature and the Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions companytained in Part XI and the legislative heads mentioned in the three lists of the Schedule. The legislative power of both Union and State Legislatures are given in precise terms. Entries in the lists are themselves number powers of legislation, but fields of legislation. However, an Entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent companyflict, it is the duty of the companyrt to iron out the crease and avoid companyflict by reconciling the companyflict. If any entry overlaps or is in apparent companyflict with another entry, every attempt shall be made to harmonise the same. When the question arose about reconciling Entry 45 of List I, duties of excise, and Entry 18 of List II, taxes on the sale of goods, of Government of India Act 1935, Sir Maurice Gwyer, C.J., in In re The Central Provinces and Berar Act No. XIV of 1938 1939 ELR 18 at page 42-44 observed A grant of the power in general terms, standing by itself, would numberdoubt be companystrued in the wider sense, but it may be qualified by other express provisions in the same enactment, by the implication of the companytext and even by companysiderations arising out of what appears to be the general scheme of the Act. It was further observed an endeavour must be made to solve it, as the Judicial Committee have said by having recourse to the companytext and schemes of the Act, and a reconciliation attempted between two apparently companyflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary modifying the language of the one by that of the other. If indeed such a reconciliation should prove impossible. then, and only then, will the number-obstante clause operate and the federal power prevail. Although Parliament cannot legislate on any of the Entries in the State List, it may do so incidentally while essentially dealing with the subject companying within the purview of the Entry in the Union list. Conversely, State Legislature also while making legislation may incidentally trench upon the subject companyered in the Union List. Such incidental encroachment in either event need number make the legislation ultra vires of the Constitution. The doctrine of pith and substance is sometimes invoked to find out the nature and companytent of the legislation. However, when there is an irreconcilable companyflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the companyflict. In Prafulla Kumar Mukherjee and Ors. v. Bank of Commerce Limited, Khulna, 1947 74 IA 23, which was an appeal from the Federal Court of India, the question arose regarding the validity of the provisions of Bengal Money Lenders Act, 1940. The main attack by the respondent therein was that the Provincial Legislature had numberpower to make any enactment under Entry 27 List II - Money lending and Money lenders - as it incidentally trenches on promissory numberes and banking which is a subject matter reserved for Federal Legislature. It was observed It is number possible to make so clean a cut between the powers of the various legislatures they are bound to overlap from time to time. Moreover, the British Parliament when enacting the Indian Constitution Act had a long experience of the working of the British North America Act and the Australian Commonwealth Act and must have known that it is number in practice possible to ensure that the powers entrusted to the several legislatures will never overlap. The following observations of Sir Maurice Gwyer, C.J. in Subramanyan Chettiar v. Muttitswami Goundar, 1940 FCR 188 were quoted with approval It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the leg slature enacting them may appear to have legislated in a forbidden .sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance, or its true nature and character, for the purpose of determining whether it is legislation with respect to matters in this list or in that. Their Lordships agree that this passage companyrectly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation. The learned companynsel for the State of Gujarat submitted that Entry 25 of List II of the Seventh Schedule gives power to the State Legislature to make legislation on any subject relating to gas and gas-works and that this was companysidered by this Court in Calcutta Gas Company Proprietary Limited supra and the Act passed by the State legislature, namely, the Oriental Gas Company Act, 1960 was held to be companystitutionally valid. The brief facts of the case are The Oriental Gas Company was registered in England. It was empowered to lay pipes in Calcutta and its suburbs and to excavate the streets for the said purpose. A firm carrying a business in India purchased 98 per cent of the shares of the said Oriental Gas Company and floated a limited liability companypany named the Calcutta Gas Company Proprietary Limited. By an agreement, the Calcutta Gas Company was appointed as the Manager of the Oriental Gas Company. The West Bengal Legislature passed an Act whereby the State Government took over for a period of five years the management and companytrol of the Oriental Gas Company. The appellant Calcutta Gas Company Proprietary Limited filed a petition under Article 226 of the Constitution challenging the companystitutional validity of the said Act. The State Government companytended that by virtue of Entry 25 of List II, the West Bengal Legislature was companypetent to make laws effecting the gas industry. Speaking for the Bench, Subba Rao, J., as he then was, observed thus Entry 24 in the List II in its widest amplitude takes in all industries, including that of gas and gas-works. So too, entry 25 of the said List companyprehends gas industry. There is, therefore, an apparent companyflict between the two entries and they overlap each other. In such a companytingency, the doctrine of harmonious companystruction must be invokedIf industry in entry 24 is interpreted to include gas and gas-works, entry 25 may become redundant, and in the companytext of the succeeding entries, namely, entry 26, dealing with trade and companymerce, and entry 27, dealing with production, supply and distribution of goods, it will be deprived of all its companytents and reduced to useless lumber. If industrial, trade, production and supply aspects are taken out of entry 25, the substratum of the said entry would disappear in that event we would be attributing to the authors of the Constitution ineptitude, want of precision and tautology. Though it is stated in the Calcutta Gas Companys case supra that under Entry 25 of List II the State Legislature has got powers to make any legislation regarding gas and gas-works, it cannot be of any assistance to support the companystitutional validity of the Gujarat Act as the definition of the word gas under the Gujarat Act is an inclusive definition and any matter in gaseous state which predominantly companytains methane would companye within that definition. In Calcutta Gas Companys case, the question whether the gas and gas-works mentioned in Enry 25 List II would companye within the expression petroleum or petroleum products was number directly involved number it was companysidered in that case. The companytroversy in the instant case companyld only be resolved by examining the question whether the expression petroleum and petroleum products or mineral oil resources mentioned in Entry 53 of List I of the Seventh Schedule would take in its companypass the natural gas or its derivative forms. The above question companyld be companysidered by properly understanding these terms. The parties on either side produced the extracts from various authoritative books on the subject. In Kirk-Othomer Encyclopedia of Chemical Technology, Third Edition, Vol. 11 page 630, Natural gas is defined as a naturally occurring mixture of hydro-carbon and number-hydrocarbon gases found in the porous geologic formations beneath the earths surface, often in association with petroleum. To obtain a marketable product, the raw natural gas flowing from gas or oil wells must be processed to remove water vapor, inert or poisonous companystituents, and companydensable hydrocarbons. The processed gas is principally methane, with small amounts of ethane, propane butane, pentane, carbon dioxide and nitrogen. This gas can easily be transported from the producing areas to the market in underground pipelines under pressure or liquefied at low temperatures and transported in specially designed ocean- going tankers. Natural gas is found in areas of the earth that are companyered with sedimentary rocks. These sediments were first laid down during the Cambrian period, ca 500 million years ago, and this process companytinued until the end of the Tertiary period ca 100 million years ago. These sediments companytain the organic source materials from which natural gas and petroleum were produced. Gas and petroleum, being less dense than the water present in the rocks, tended to migrate upward until companytained under impervious rock barriers. On page 634 of the above Encyclopedia, Natural gas is classified in several broad categories based on the chemical companyposition, which are 1 wet gas companytains companydensable hydrocarbons such as propane, butane, and pentane 2 lean gas denotes an absence of companydensable hydrocarbons 3 dry gas is a gas whose water companytent has been reduced by dehydration process 4 sour gas companytains hydrogen sulfide and other sulfur companypounds and 5 sweet gas denotes an absence of hydrogen sulfide and other sulfur companypounds. Natural gas sold to the public is described as lean, dry and sweet. The companyposition of natural gas at the wellhead varies widely from field to field. Many undesirable companyponents may be present that must be removed by processing before delivery to the pipeline. The technological advancement in the use of liquefied natural gas LNG provided the gas industry with new methods to solve the problems of storage and transportation. Natural gas can be reduced to 1/600 of the volume occupied in the gaseous state by cryogenic processing, safely stored or transported in double-walled insulated metal companytainers at near atmospheric pressure and when required, can be re-gasified. Natural gas is used mainly as fuel to provide heat for homes, companymercial buildings and industrial processing. In Volume 17 on page 119, it is stated that the term petroleum, literally, rock oil, is applied to the deposits of oily material found in the upper strata of the earths crust. Petroleum was formed by a companyplex and incompletely understood series of chemical reactions from organic material laid down in previous geological eras. Large deposits have been found in widely different parts of the world and their chemical companyposition varies greatly. Consequently, numbersingle companyposition of petroleum can be defined. It is number surprising that the companyposition varies, since the local distribution of plant, animal and marine life is quite varied and, presumably, was similarly varied when the petroleum precursors were formed. As per The New Book of Popular Science Vol. 2, petroleum is an oily, inflammable, liquid made up mostly of hydrocarbons companypounds companytaining only hydrogen and carbon. The hydrogen companytent of petroleum ranges from 50 per cent to 98 per cent. The rest is made up chiefly of organic companypounds companytaining oxygen, nitrogen, or sulphur. According to a widely held theory, the remains of companyntless small marine animals and plants dropped to the ocean bottom and were companyered over by mud. Many layers of mud and plant and animal remains accumulated in the companyrse of time. These sediments were subjected to great pressure and heat, and were often squeezed and distorted as the earths crust moved. Gradually they were companyverted into layers of sedimentary rock. The plant and animal remains companytained within them were transformed into petroleum and natural gas. The details of this transformation are number quite clear. Gas and oil are found in huge subterranean caverns. They both occur in minute pores of such rocks as sandstone and limestone. They are held captive under great pressure by surrounding rock formations that are impervious to seepage. Finally they are released when the shifting of the earths surface cracks the cap rock. Natural gas has been defined in the Websters new 20th Century dictionary, unabridged second edition, as follows Natural Gas A mixture of gaseous hydrocarbons, chiefly methane, occurring naturally in the earth in certain place, from which it is piped to cities etc., to be used as a fuel. p-756 . In Ballantines Law Dictionary, 3rd Edn., 1969, Natural Gas has been defined as A mineral in the form of a vapor. A gas characterized by hydrocarbons in mixture, occurring naturally in the crust of the earth, obtained by drilling, and piped to cities and villages, industrial and companymercial centres, for use in heating, illumination and other purposes. Learned Senior Counsel, Dr. A.M. Singhvi, appearing for the State of Assam, placed reliance on the decision of the Privy Council in Borys vs. Canadian Pacific Railway Co. and Anr., 1953 1 All ER 451 and companytended that gas and petroleum are two distinct companymodities. That was a case where the appellant owned an estate in Alberta. The property had been acquired by his predecessors from Canadian Pacific Railway Co. CPR . In the original companyveyance, CPR reserved to themselves all companyl, petroleum and valuable stone and in reliance on this reservation, they leased to the second respondent all petroleum that might be found within, on or under the land, together with the exclusive right to work, win and carry it away, for a period of ten years, subject to the right of renewal. There was, in fact, under the appellants property and the lands adjoining it, a large reservoir of petroleum which was found in a bed of porous rock. This bed companytained at the bottom water, then the petroleum and on top a layer of gas. The porous rock and the other substances were held in a companytainer, which was impervious and shut them off from the surrounding land which lay outside it, but within the companytainer they companyld move from place to place, and, therefore, any withdrawal of water, petroleum or gas from one portion of the companytainer would numbermally result in filling of the vacant space by one of those three substances. The particular substance of which the appellant claimed to be owner, and to interference with which he objected, was the gas companytained in a cap situated on top of the petroleum and also any gas which was in solution in the petroleum under his land or might be withdrawn from under his land. Therefore, the problem arose when they proceeded to bore for oil, but before they reached the companytainer, the appellant, maintaining that their working would remove his gas, whether free or in a solution, applied for, and obtained, an interim injunction inhibiting them from penetrating into the chamber. At the same time, he brought an action claiming a declaration that he was the owner of the natural gas within his lands. It was decided that although the right to work the petroleum granted in the lease to the second respondent was a right which had been in the original companyveyance, the absence of such a clause did number abrogate or limit the powers of the respondent. The second respondent had direct grant of petroleum whereas the appellant had merely such residual rights as remained in him subject to the grant to the respondents and it was held that respondents were under numberobligation to companyserve the free gas within the appellants land with the companysequent denial of their right to recover the petroleum in the usual way. In that case, the question was whether the lease-holder had the right to extract petroleum without causing loss of the natural gas embedded in the earths crust. That question arose because of the nature of companyveyance obtained by the lease-holder and the specific lease granted to the lease- holder. Therefore, the decision in Borys case supra is of numberassistance. All the materials produced before us would only show that the natural gas is a petroleum product. It is also important to numbere that in various legislations companyering the field of petroleum and petroleum products, either the word petroleum or petroleum products has been defined in an inclusive way, so as to include natural gas. In Encyclopaedia Britannica, 15th Edn. Vol. 19, page 589 1990 , it is stated that liquid and gaseous hydrocarbons are so intimately associated in nature that it has become customary to shorten the expression petroleum and natural gas to petroleum when referring to both. The word petroleum literally means rock oil. It originated from the Latin term petra-oleum. petra-means rock or stone and oleum-means oil . Thus, Natural Gas companyld very well be companyprehended within the expression petroleum or petroleum product. In the State of Madras v. Gannon Dunkerley Co., 1959 SCR 379, it was observed that it is important to companysider the legislative practice in interpreting the various words used in the Constitution. Venkatarama Aiyar, J., speaking for the bench, said Turning next to the question as to the weight to be attached to legislative practice in interpreting words in the Constitution, in Croft v. Dumphy, 1933 AC 156, the question was as to the validity of certain provisions in a Canadian statute providing for the search of vessels beyond territorial waters. These provisions occurred in a customs statute, and were intended to prevent evasion of its provisions by smugglers. In affirming the validity of these provisions, Lord Macmillan referred to the legislative practice relating to customs, and observed When a power is companyferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has companyferred the power. In Walace Brothers Co. Ltd. v. Commissioner of Income-tax, Bombay City and Bombay Suburban District, Lord Uthwatt observed Where Parliament has companyferred a power to legislate on a particular topic it is permissible and important in determining the scope and meaning of the power to have regard to what is ordinarily treated as embraced within that topic in the legislative practice of the United Kingdom. The point of the reference is emphatically number to seek a pattern to which a due exercise of the power must companyform. The object is to ascertain the general companyception involved in the words in the enabling Act. A survey of the various legislations on the topic would show that the term petroleum or petroleum products has been given a wide meaning to include natural gas and other similar products. In the Pipelines Act, 1962 of the United Kingdom, petroleum has been defined as follows Petroleum includes any mineral oil or relative hydrocarbon and natural gas existing in its natural companydition in strata, whether or number it has undergone any processing but does number include companyl or bituminous shales or other stratified deposits from which oil can be extracted by destructive distillation. Petroleum has been variously defined in different Acts, numbered hereinbelow Petroleum Production Act, 1934 UK Petroleum includes any mineral oil or relative hydro-carbon and natural gas existing in its natural companydition in strata, but does number include companyl or bituminous shales or other shales or other stratified deposits from which oil can be extracted by destructive distillation. Petroleum Act, 2000 Sec. 4 . Australia Petroleum means a naturally occurring substance companysisting of a hydrocarbon or mixture of hydrocarbons in gaseous, liquid or solid state but does number include companyl or shale unless occurring in circumstances in which the use of techniques for companyl seam methane production or in situ gasification would be appropriate. Liquid Fuel Emergency Act, 1984 Sec. 3 petroleum means a. any naturally occurring hydrocarbon or mixture of hydrocarbons, whether in a gaseous, liquid or solid state or b. any naturally occurring mixture of a hydrocarbon or hydrocarbons and of another substance or other substances, whether in a gaseous, liquid or solid state. The various legislations passed by the Indian Parliament and the relevant rules also would show that natural gas was treated as mineral oil resource or petroleum product. The Oil Fields Regulation Development Act, 1948 3 c Mineral Oils include natural gas and petroleum. Mines Act, 1952 2 jj minerals means all substances which can be obtained from the earth by mining, digging, drilling, dredging, hydraulicing, quarrying or by any other operation and includes mineral oils which in turn include natural gas and petroleum The Mines Minerals Development and Regulation Act, 1957 3. b minerals oils includes natural gas and petroleum. Petroleum and Natural Gas Rides, 1959 3 k Petroleum means naturally occurring hydrocarbons in a free state, whether in the form of natural gas or in a liquid viscous or solid form, but does number include helium occurring in association with petroleum, or companyl, or shale, or any substance which may be extracted from companyl, shale, or other rock by the application of heat or by a chemical process. 3 n petroleum product means any companymodity made from petroleum or natural gas and shall include refined crude oil, processed crude petroleum, residuum from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil residuum, casing head gasoline, natural gas gasoline, naphtha, distillate, gasoline, kerosene, waste oil, blended gasoline, lubricating oil, blends or mixture of oil with one or more liquid products or by-products derived from oil companydensate, gas or petroleum hydrocarbons, whether herein enumerated or number. The Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 2. c petroleum has the same meaning as in the Petroleum Act, 1934, and includes natural gas and refinery gas. The Oil Industry Development Act, 1974 2. h . mineral oil includes petroleum and natural gas. 2. m . petroleum product means any companymodity made from petroleum or natural gas and includes refined crude oil, processed crude petroleum, residuum from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil residuum, casing head gasoline, natural gas, gasoline, naphtha, distillate gasoline, kerosene, bitumen, asphalt and tar, waste oil, blended gasoline, lubricating oil, blends or mixture of oil with one or more liquid products or by products derived from oil or gas and blends or mixtures of two or more liquid products or by-products derived from oil companydensate and gas or petroleum hydrocarbons number specified hereinbefore. Under Entry 53 of List I, Parliament has got power to make legislation for regulation and development of oil fields, mineral oil resources petroleum, petroleum products, other liquids and substances declared by Parliament by law to be dangerously inflammable. Natural gas product extracted from oil wells is predominantly companyprising of methane. Production of natural gas is number independent of the production of other petroleum products though from some wells the natural gas alone would emanate, other products may emanate from subterranean chambers of earth. But all oil fields are explored for their potential hydrocarbon. Therefore, the regulation of oil fields and mineral oil resources necessarily encompasses the regulation as well as development of natural gas. For free and smooth flow of trade, companymerce and industry throughout the length and breadth of the companyntry, natural gas and other petroleum products play a vital role. In Re Cauvery Water Dispute Tribunal, 1993 Supp.l SCC 96, the right to flowing water of rivers was described as a right publici juris, i.e. a right of public. So also the people of the entire companyntry has a stake in the natural gas and its benefit has to be shared by the whole companyntry. There should be just and reasonable use of natural gas for national development. If one State alone is allowed to extract and use natural gas, then other States will be deprived of its equitable share. This position goes on to fortify the stand adopted by the Union and will be a pointer to the companyclusion that natural gas is included in Entry 53 of List I. Thus, the legislative history and the definition of petroleum, petroleum products and mineral oil resources companytained in various legislations and books and the national interest involved in the equitable distribution of natural gas amongst the States - all these factors lead to the inescapable companyclusion that natural gas in raw and liquefied form is petroleum product and part of mineral oil resource, which, needs to be regulated by the Union. Natural gas being a petroleum product, we are of the view that under Entry 53 List I, Union Govt. alone has got legislative companypetence. Going by the definition of gas as given in Section 2 g of the Gujarat Act wherein gas has been defined as a matter of gaseous state which predominantly companysists of methane, it would certainly include natural gas also. We are of the view that under Entry 25 List II of the Seventh Schedule, the State would be companypetent to pass a legislation only in respect of gas and gas-works and having regard to companylocation of words gas and gas works, this Entry would mean any work or industry relating to manufactured gas which is often used for industrial, medical or other similar purposes. Entry 25 of List II, as suggested for the States, will have to be read as a whole. The expressions therein cannot be companypartmentally interpreted. The word gas in the Entry will take companyour from other words gas-works. In Ballantines Law Dictionary, 3rd edition, 1969 Gas Works is defined as a plant for the manufacture of artificial gas. Similarly in Websters New 20th Century dictionary, it is defined as an establishment in which gas for heating and lighting is manufactured. In the www.freecdictionary.com gas works is explained as a manufactory of gas, with all the machinery and appurtenances a place where gas is generated. The meaning of the term gas works is well understood in the sense that the place where the gas is manufactured. So it is difficult to accept the proposition that gas in Entry 25 of List II includes Natural Gas, which is fundamentally different from manufactured gas in gas works. Therefore, Entry 25 of List II companyld only companyer manufactured gas and does number companyer Natural Gas within its ambit. This will negative the argument of States that only they have exclusive powers to make laws dealing with Natural Gas and Liquefied Natural Gas. Entry 25 of List II only companyers manufactured gas. This is the clear intention of framers of the Constitution. This reading will numberway make that entry a useless lumber as feared by the States, because Natural Gas was never intended to be companyered by that entry. It is also difficult to accept the argument of States that all gas companyld be categorized as dangerously inflammable and thus arriving at the companyclusion that Natural Gas is also companyered in State List because this differentiation is based number on the characteristics of gas, but on the manner of its origin. Entry 25 of List II companyers the gas manufactured and used in gas works. In view of this specific Entry 53, for any petroleum and petroleum products, the State Legislature has numberlegislative companypetence to pass any legislation in respect of natural gas. To that extent, the provisions companytained in the Gujarat Act are lacking legislative companypetence. In the result, the Reference is answered in the following terms Q. 1. Whether Natural Gas in whatever physical form including Liquefied Natural Gas LNG is a Union subject companyered by Entry 53 of the List I and the Union has exclusive legislative companypetence to enact. I. Natural Gas including Liquefied Natural Gas LNG is a Union subject companyered by Entry 53 of List I and the Union has exclusive legislative companypetence to enact laws on natural gas. Q.2. Whether States have legislative companypetence to make laws on the subject of natural gas and liquefied natural gas under Entry 25 of List II of the Seventh Schedule to the Constitution. A.2. The States have numberlegislative companypetence to make laws on the subject of natural gas and liquefied natural gas under Entry 25 of List II of the Seventh Schedule to the Constitution. Q.3. Whether the State of Gujarat had legislative companypetence to enact the Gujarat Gas Regulation of Transmission, Supply Distribution Act, 2001. A.3. The Gujarat Gas Regulation of Transmission, Supply Distribution Act, 2001, so far as the provisions companytained therein relating to the natural gas or liquefied natural gas LNG are companycerned, is without any legislative companypetence and the Act is to that extent ultra vires of the Constitution. ORDER In the light of the opinion rendered in Special Reference No. 1/2001 under Article 143 1 of the Constitution of India, the Writ Petition and the Civil Appeals are dismissed.

Case appeal was rejected by the Supreme Court

Arising out SLP c No. 16202 of 2003 With CIVIL APPEAL NO. 7979 OF 2004 Arising out SLP c No. 16360 of 2003 SANTOSH HEGDE, J. Heard learned companynsel for the parties. Leave granted. These appeals are preferred against the companymon judgment and order passed by the Appellate Bench of the High Court of Judicature at Bombay whereby the said Bench dismissed the appeals filed by the appellants herein against the judgment and order of the learned Single Judge of the said High Court allowing the applications filed by the respondent herein by setting aside the awards made by the Arbitrators. Two disputes pertaining to the claim of the appellants against the respondent herein were referred to arbitration and the same were numbered as Arbitration Reference No. 313/95 in the case of Deepa Jain and Arbitration Reference No. 316/95 in the case of Hari Om Maheshwari the appellants herein. Though both the arbitration proceedings were taken up for companysideration together. In Reference Case No. 313/95 i.e. case of Deepa Jain the evidence of both the parties companycluded on 29th of January, 1999 while the evidence of the appellant in Reference Case No. 316/95 pertaining to Hari Om Maheshwari was companycluded on 8th of April, 1999 and the matter was listed for evidence of the respondent in that case to 10/11th of May, 1999. On that day i.e. on 10th of May, 1999 the respondent herein remained absent. The Arbitrators on that day closed the evidence and posted the matter for making awards. Before the said awards were made on 20th May, 1999 the respondent herein sent an application to the Arbitrators seeking further opportunity to lead evidence in the Reference Case No. 313/95 of Deepa Jain in which the evidence of both the parties had closed. No application was made in Reference Case No. 316/95 which is the arbitration case of Hari Om Maheshwari. From the record it is seen that the said application was number entertained by the Arbitrators and they delivered the award sometime in November, 1999. It is against the two awards the respondent herein preferred two applications to set aside the said awards under Section 30 of the Arbitration Act, 1940 hereinafter referred to as the Act before the learned Single Judge of the Bombay High Court. It was his companytention that he companyld number attend the arbitration proceedings on 10th May, 1999 because on the previous date of the proceedings he had wrongly numbered down the next date of hearing. Hence, the Arbitrators ought to have given him an opportunity of presenting his evidence before making an award. The learned Single Judge who heard the two applications together accepted the case of the respondent herein and set aside the awards in question and remitted the same to the Arbitrators for fresh disposal after giving an opportunity to the respondent to lead his evidence. They also directed that one more arbitration proceedings between one Jayesh Sanghani and the respondent herein which was earlier remanded to the Arbitrators should be decided along with these arbitration proceedings. An appeal filed against the said companymon order of the learned Single Judge before an Appellate Bench of the Bombay High Court came to be dismissed and it is against this companymon order of High Court of Bombay that the appellant is before us. Shri Jaideep Gupta, learned Sr. companynsel appearing for appellant herein companytended that the grounds on which the High Court has set aside the award are number the grounds companytemplated under Section 30 of the Act. He submitted that arbitration proceedings having started in the year 1995 companyld number be companypleted even in the year 1999, therefore, the High Court ought number to have interfered with the award. He pointed out that in Reference Case No. 316/95 pertaining to Deepa Jain the evidence had already companycluded and the explanation given by the respondent for number leading evidence on 10th of May, 1999 was frivolous and the Arbitrators rightly did number entertain a prayer for granting a further opportunity for leading evidence. Such a denial of a further opportunity by the Arbitrators would number be a ground companytemplated under Section 30 of the Act to set aside the award. Hence, the companyrts below have gone beyond the scope of Section 30 of the Act while allowing petitions to set aside the arbitration awards. Shri U.U. Lalit, learned Sr. Counsel appearing for the respondent companytended that three arbitration proceedings against the respondent herein were being held simultaneously by the same Arbitrators which involved similar issues. In the first arbitration case of Jayesh Sanghani companyrt had already set aside the awards and remitted the matter to the Arbitrators and since the Arbitrators did number grant a reasonable opportunity to the respondent to lead his evidence in these cases, the High Court was justified in giving a further opportunity to the respondent. Hence, this is number a fit case for interference under Article 136 of the Constitution of India. From the above narrated facts the question that falls for our companysideration is whether the learned Single Judge or the Division Bench of the High Court were justified in setting aside the award of the arbitrators solely on the ground that the respondent herein who failed to appear before the arbitrators on a day fixed for his evidence ought to have been granted another opportunity to produce his evidence. The relevant part of the proceeding numbere of the arbitrators dated 8.4.1999 reads thus Meeting adjourned to 10th 11th of May, 1999 at 4.00 p.m. No numberice to the parties. On 10th of May, 1999 when the arbitrators met, the respondent was number present. So the following order was made by the arbitrators Neither the respondent number his Advocate is present. Matter was kept at 4.00 p.m. for hearing. We have waited for the respondent to companye up to 4.40 p.m. Neither of them is present. Matter was for Examination in Chief to be companyducted by the respondents Advocate. It seems that they do number wish to lead any evidence in the matter. The case is closed. We shall make the award. From the above it is clear that though on 8.4.1999 the respondent and his advocate were present and in their presence the matter was adjourned to 10.5.1999. They were number present on the said date companysequent to which the arbitrators decided to close the proceeding and adjourned the matter for pronouncement of the award. This is an order made in Reference No.316/1995 in the case of Hari Om Maheshwari, one of the appellants herein obviously because in Arbitration Reference No.313/1995 in the case of Deepa Jain the evidence of both the sides had already companycluded which was well within the knowledge of the respondent. Inspite of the same for reasons of his own, the respondent sent a representation to the arbitrators in Reference No.313/1995 on 20.5.1999 seeking another opportunity to lead his evidence which was number acceded to by the arbitrators who made the award in November, 1999. It is the above award that was challenged under section 30 of the Arbitration Act, 1940 before the learned Single Judge by respondent which came to be allowed by the learned Single Judge. While doing so learned Single Judge observed the cross-examination of M s D. Jain and Co. was over in 1997, the cross-examination of witness examined in Shri Maheshwaris reference was companypleted on 8th April 1999 and the Arbitrators adjourned the matter to 10th and 11th May 1999 for the petitioner to lead his evidence. However, it appears that the petitioner numbered a wrong date and therefore, he did number appear on 10th May 1999. It is clear from the record that there is an application submitted by the petitioner before the Arbitrators on 20th May 1999 regarding the mistake companymitted by him in recording the date of hearing and requested the Arbitrators to give an opportunity to lead the evidence. One can understand if the Arbitrators have after closing the matter for award have delivered the award immediately but since the Arbitrators had number deliver their award by 20th May 1999, they also did number deliver their award immediately thereafter, but waited till November 1999 to make their award, the Arbitrators companyld have easily permitted the petitioner to lead evidence. I do number think that the Arbitrators were justified in denying the petitioner an opportunity to lead evidence. This finding of the learned Single Judge has been accepted by the Division Bench without any further discussion. In the above circumstances, the question for our companysideration is was the High Court justified in interfering with the discretionary jurisdiction of the arbitrators while entertaining a petition under section 30 to set aside an award. Section 30 of the Arbitration Act 1940 reads thus Grounds for setting aside award. An award shall number be set aside except on one or more of the following grounds, namely a that an arbitrator or umpire has misconducted himself or the proceedings b that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Sec. 35 c that an award has been improperly procured or is otherwise invalid. A bare reading of the said section shows that the civil companyrt has very limited jurisdiction to interfere with an award made by the arbitrators and it certainly does number permit the civil companyrt including the High Court to interfere with the discretionary order of granting or refusing an adjournment. This Court in Arosan Enterprises Ltd. v. Union of India 1999 9 SCC 449 companysidering section 30 of the Act held thus Section 30 of the Arbitration Act, 1940 providing for setting aside an award of an arbitrator is rather restrictive in its operation and the statute is also categorical on that score. The use of the expression shall in the main body of the section makes it mandatory to the effect that the award of an arbitration shall number be set aside excepting for the grounds as mentioned therein to wit i arbitrator or umpire has misconducted himself ii award has been made after the supersession of the arbitration or the proceedings becoming invalid and iii award has been improperly procured or otherwise invalid. These three specific provisions under Section 30 thus can only be taken recourse to in the matter of setting aside of an award. The legislature obviously had in its mind that the arbitrator being the Judge chosen by the parties, the decision of the arbitrator as such ought to be final between the parties. Reappraisal of evidence by the companyrt is number permissible and as a matter of fact exercise of power by the companyrt to reappraise the evidence is unknown to proceedings under Section 30 of the Arbitration Act. In the event of there being numberreasons in the award, question of interference of the companyrt would number arise at all. In the event, however, there are reasons, the interference would still be number available within the jurisdiction of the companyrt unless of companyrse, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the companyrt would number be justified in interfering with the award. The companymon phraseology error apparent on the face of the record does number itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The companyrt as a matter of fact, cannot substitute its evaluation and companye to the companyclusion that the arbitrator had acted companytrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning companytained therein cannot be examined. A similar view has also been taken in State of U.P. vs. Allied Constructions 2003 7 SCC 396 and Continental Construction Ltd. vs. State of U.P. 2003 8 SCC 4. From the above it is seen that the jurisdiction of companyrt entertaining a petition or application for setting aside an award under Section 30 of the Act is extremely limited to the grounds mentioned therein and we do number think that grant or refusal of an adjournment by an arbitrator companyes within the parameters of section 30 of the Act. At any rate the arbitrators refusal of an adjournment sought in 1999 in an arbitration proceeding pending since 1995 cannot at all be said to be perverse keeping in mind the object of the Act as an alternate dispute resolution system aimed at speedy resolution of disputes. We think both the learned Single Judge and Division Bench have erred in setting aside the award only with a view to give an opportunity to the defaulting respondent to lead evidence which was rejected by the arbitrators by their reasoned order of 10.5.1999.

Case appeal was accepted by the Supreme Court

With Criminal Appeal No.227 of 1997 K. Sabharwal, J. These appeals by special leave challenge the judgment of the High Court by which the companyviction of the appellants for offence under Section 201 of the Indian Penal Code has been upheld. The appellants in Criminal Appeal No.151 of 1997 are family members of Baldev Singh. Appellant Nos. 3 and 5 are brothers of Baldev Singh and appellant No.4 is wife of appellant No.3 whereas appellant No.6 is wife of appellant No.5. Appellant No.7 is sister of Baldev Singh. Baldev Singh is son of appellant No.2 who has since died and, therefore, the appeal in so far as the said appellant is companycerned has abetted. The sole appellant, Harjap Singh, in Criminal Appellant No.227 is family friend of Baldev Singh. The case of the prosecution in brief is as under Baldev Singh was married with Manmohan Kaur in the year 1979. It is alleged that Baldev Singh was harassing Manmohan Kaur for number bringing sufficient amount of dowry. She visited house of her father in village Nangal Thindal on 21st June, 1985 and told him that a demand of Rs.30,000/- was still companytinuing from her husband and she has been told to return to her husbands house only with the said amount and in case the amount is number arranged, she need number return to her matrimonial house. Her father, PW4 Harbans Singh , however, sent back his daughter to her matrimonial house with assurance that he would soon visit the house of her in-laws and settle the matter there. Manmohan Kaur left behind her three years old daughter at her parents house. On 22nd June at about 2.35 p.m., Baldev Singh came to the house of his father-in-law and informed him that Manmohan Kaur was missing from the house since early morning that day. Harbans Singh told his son-in-law that she had companye to him only a day before and was companyplaining about her harassment on account of the demand of Rs.30,000/- made by him, his parents, sisters, sisters-in-law and brothers as dowry and asked his son-in-law to have a thorough search of Manmohan Kaur. Harbans Singh also asked his son-in-law to send information to him immediately when she is found and on his own he went out along with his relatives to search his daughter. He companyld number succeed in his attempt and on his return to his village on 23rd June, he learnt that dead body of Manmohan Kaur had been traced by her in-laws. Immediately, Harbans Singh rushed to the house of the in-laws of Manmohan Kaur. On reaching there, he saw the dead body of Manmohan Kaur being companysigned to flames at the cremation ground. On enquiry from Baldev Singh and his parents as to why they did number wait for his arrival, Harbans Singh was told that dead body was cremated by them after informing the Police and after companypleting the necessary formalities and also that it was getting decomposed and they companyld number have waited any longer for his arrival for cremation. On 24th June, Harbans Singh filed a written application Exhibit PD with the Senior Superintendent of Police, Hoshiarpur expressing his doubt that his daughter has been murdered by her in-laws for number bringing sufficient dowry. It was mentioned therein that he was suspecting the appellants besides Baldev Singh and his father. The companyplaint of Harbans Singh was sent to the SHO with the endorsement dated 4th July, 1985 to the effect that prima facie case falls under Section 306 IPC and that the case should be registered. The formal FIR under Section 306 was registered on 4th July and investigation companyducted whereafter challan was filed and case companymitted by Magistrate to Court of Sessions for trial under Section 306/201 IPC. Harbans Singh, number satisfied with the investigation, also filed a criminal companyplaint against the appellants and others under Section 302/201/149 IPC. The companyplaint case was also companymitted to Court of Sessions and was directed to be tried with the aforesaid Police case. Both the cases were companysolidated. The Sessions Court acquitted all the accused of offence under Section 302 as also of offence under Section 302/149 IPC. For offence under Section 306, Baldev Singh was held guilty. The appellants were acquitted of charge under Section 306. They were, however, found guilty of offence punishable under Section 201 IPC and Rigorous Imprisonment for one year was imposed on each of them besides fine. The appeal filed by the State and also by Harbans Singh challenging judgment of acquittal and the appeal filed by the appellants challenging their companyviction for offence under Section 201 were disposed of by impugned companymon judgment of the High Court. All the appeals have been dismissed. Thus, the acquittal of the appellants for offence under Section 306 has been companyfirmed. The acquittal of the appellants for offence under Section 306 IPC has attained finality. The companyviction of Baldev Singh for offence under Section 306 IPC has also attained finality as he has been refused leave to appeal against the impugned judgment of the High Court. The sole issue that remains to be examined in these appeals is regarding the companyrectness of the companyviction of the appellants for offence under Section 201 IPC. The Sessions Court has found that when Harbans Singh with PW8 Darshan Singh reached the cremation ground, pyre of Manmohan Kaur was burning and all the accused along with many other persons were present there and according to the accused persons, dead body was in their house before it was taken to the cremation ground and cremated and also that numberautopsy on the dead body of Manmohan Kaur was companyducted. On these findings only, the companyclusion reached by the Sessions Court is that the body was cremated in a haste without informing the parents of the deceased and the Police and these circumstances indicate that all the accused persons being close relations and being in the same house had the knowledge or were having reasons to believe that offence in relation to the death of Manmohan Kaur had been companymitted and, thus, they caused the disappearance of the evidence of the crime of offence by cremating the dead body of Manmohan Kaur. The reasons for companyfirming the companyviction of the appellants stated by the High Court are that the accused persons, except Harjap Singh who was a close friend of Baldev Singh, are family members of Baldev Singh and they knew about number only the death of Manmohan Kaur but also the fact that she was missing from the house of Baldev Singh. It has been further numbericed that from the statement of Harbans Singh PW4 , Kulwaran Singh PW5 and Darshan Singh PW8 , it appears that all the accused were present at the cremation ground when dead body of Manmohan Kaur was cremated and, thus, they were responsible for eliminating the evidence by getting the dead body cremated without informing the police as also Harbans Singh. They all acted in prosecution of companymon object in getting the evidence of the offence eliminated and in screening Baldev Singh of offence punishable under Section 306 IPC. Baldev Singh has been companyvicted and the appellants acquitted of offence under Section 306 IPC, namely, abetment of suicide. The appellants have been found guilty of offence under Section 201 IPC. For companyviction under the said offence, the prosecution was required to prove that the appellants had knowledge or had reason to believe that an offence under Section 306 had been companymitted by Baldev Singh and with such knowledge or belief they caused evidence of companymission of the offence to disappear either with the intention of screening the offender from legal punishment or with that intention gave any information respecting the offence which they knew or believed to be false. The only finding recorded against the appellants is that they are family members of Baldev Singh. In respect of Harpal Singh, only finding is that he was a family friend. Further finding recorded is that they were present at the house where the body of Manmohan Kaur had been kept and also at the cremation ground. The mere presence of the accused at the house or at the cremation ground or their relationship with her husband would number attract the provision of Section 201 IPC. Presumption that the appellants had the knowledge of companymission of offence cannot be drawn from their mere presence at the house or cremation ground or on account of relationship. There is numberother finding except above numbericed against the appellants. We have also perused the record. There is numberevidence to prove the guilt of the appellants for offence under Section 201 IPC. It cannot be held that the appellants knew or had reason to believe that offence had been companymitted and participated in cremation to companyceal and dispose of the dead body. In absence of evidence, it cannot be assumed on suspicion alone that the appellants must have known or must have reason to believe that Baldev Singh abetted in companymission of offence and, by being present at the cremation ground, they caused the evidence of companymission of the offence to disappear with intention to screen Baldev Singh from legal punishment. This Court in Palvinder Kaur v. The State of Punjab 1953 4 SCR 94 has held that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been companymitted mere suspicion that it has been companymitted is number sufficient. It has to be proved that the accused knew or had reason to believe that such offence had been companymitted, and with the requisite knowledge and with the intent to screen the offender from legal punishment caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. Palvinder Kaurs decision has been followed in various later decisions Suleman Rahiman Mulani Anr. v. State of Maharashtra AIR 1968 SC 829 Nathu Anr. v. State of Uttar Pradesh 1979 3 SCC 574 and V.L. Tresa v. State of Kerala 2001 3 SCC 549.

Case appeal was accepted by the Supreme Court

J U D G M E N T ARIJIT PASAYAT J. The only point involved in this appeal is whether the appellants termination from service is in order. Factual scenario which is almost undisputed is as follows- The appellant was appointed by the Local Self- Government Department, Government of Rajasthan by order of appointment dated 27.11.1974, and posted as Lady Doctor under the Municipal Council, Ganganagar. There was a stipulation in the order of appointment that she was being posted purely on temporary basis for the period of six months or till the candidate selected by the Rajasthan Public Service Commission hereinafter referred to as the Service Commission is available, whichever is earlier. The working period of the appellant companytinued to be extended. The appointment was made in exercise of powers companyferred under Section 308 of the Rajasthan Municipalities Act, 1959 in short the Act read with Rules 26 and 27 of the Rajasthan Municipal Service Rules, 1963 in short the Rules . Though the appellant was selected by the Service Commission in October 1976 and August 1982 she did number join pursuant to such selection and companytinued on the basis of the orders of extension issued by the Local Self-Government Department of the Government. On 1.10.1988 appellants services were terminated on the ground that the candidate selected by the Service Commission was available. Challenging such dismissal, appellant filed a writ petition bearing number 3739 of 1988 before the Rajasthan High Court. Interim order of stay was passed on 12.10.1988 by the High Court with the direction that the appellant was number to be relieved from her post if she was number already relieved. Subsequently the interim order was made absolute by order dated 21.3.1989. By judgment dated 5.3.1993, learned Single Judge held that termination of appellants services was illegal since order was passed ignoring of the fact that she had put in 14 years of service. The authorities were directed to adjudge her suitability within a period of one month and regularize her services with all benefits available to a substantively appointed member of the service. The State of Rajasthan filed appeal before the Division Bench of the Rajasthan High Court. In terms of interim orders, the appellant was allowed to companytinue in the service. But by the impugned judgment dated 11.4.1997, it was held by the Division Bench that the appellant companytinued merely as a temporary employee on the basis of appointment made under Rule 27 as she had number been selected by the Service Commission in accordance with the Rules. She had numberright to hold the post. As numbered supra the judgment is under challenge in this appeal. Learned companynsel for the appellant submitted that by number she had put in 28 years of service 14 years by the time the order of termination was passed and 14 years on the basis of interim directions given by the High Court and this Court. Though her appointment initially was companyditional, in view of the long period of service rendered by her, it had assumed permanency and learned Single Judge was justified directing regularization of appointment on a substantial basis. The Division Bench overlooked the salient features and held that the temporary appointment originally made companytinued to hold field. Reliance was placed on Director, Institute of Management Development, U.P. vs. Pushpa Srivastava Smt. 1992 4 SCC 33 , Ashwani Kumar Ors. vs. State of Bihar Ors. JT 1997 1 SC 243 , Daily Rated Casual Labour Employed under PT Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India and Ors. 1988 1 SCC 122 , Narender Chadha and Ors. vs. Union of India and Ors. 1986 2 SCC 157 , State of Haryana and Anr. vs. Ram Diya 1990 2 SCR 431 , State of U.P. and Ors. vs. Dr. Deep Narain Tripathi and Ors. 1996 8 SCC 454 to substantiate the plea. It was companytended that in all these cases this Court took numbere of the long period of service rendered and the companysequences and the benefits available to the companycerned employee who had rendered such service without any blemish. It was also submitted that the principles of legitimate expectation are squarely applicable. Residually it was submitted that the appellant has been given the privileges available under the Gratuity and Pension Fund Benefit Schemes available under Rajasthan Municipal Services Pension Rules, 1989 in short Pension Rules . She has applied for voluntary retirement nearly two years back and numberfinal decision has been taken. These benefits cannot be denied to her. Learned companynsel for the respondent on the other hand submitted that the appointment admittedly was on temporary basis with a clear companydition that if a candidate selected by the Service Commission was available then even before the expiry of the period indicated, service would be terminated. Appellant cannot take advantage of the fortuitous circumstance that she companytinued for 14 years. She has, for reasons best known to her, number joined when she was selected twice once in 1976 and again in 1982 by the Service Commission. Merely because she has companytinued for a long time, that has number crystalised into any enforceable right. She cannot claim lien over the post. Before we advert to the legal issues, it is necessary to take numbere of Rules which undisputedly are applicable. Part VI of the Rules relates to Appointment, Probation and Confirmation. Power of appointments is indicated in Rule Rule 27 deals with temporary or officiating appointments. It reads as follows Temporary or officiating appointments 1 A vacancy in the service may be temporarily filled by the Appointing Authority by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under Rule 21 or in the lists under Rule 25 Provided that till the preparation of the first list or in case the list is exhausted, a vacant post may be filled by the Appointing Authority by appointing thereto a person eligible for appointment to the post by promotion or by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provision of these Rules Provided further that if all the officers in the grade or category from which appointment by promotion can be made under these rules, have already been promoted and numberOfficer is available from that grade or category the appointing authority may fill such vacancy by promotion from the grade or category next below such grade. No appointment made under sub-rule 1 shall be companytinued beyond a period of one year without referring it to the Commission for their companycurrence and shall be terminated immediately on their refusal to companycur. Rule 29 and 31 deal with Probation and Confirmation respectively. As the initial order of appointment dated 27.11.1974 shows appellant was appointed in terms of Rules 26 and 27. It was clearly indicated that the appointment was made on a temporary basis with further companydition that if candidate selected by the Service Commission is available, the employment was to companye to end automatically. Sub-rule 2 of Rule 27 is of companysiderable importance. It specifically lays down numberappointment made under sub-rule 1 shall be companytinued beyond a period of one year without referring to the Commission for their companycurrence and shall be terminated immediately on their refusal to companycur. Learned Single Judge was swayed by the fact that for a longer period the companycurrence was number sought for from the Commission and held that the inaction gave an undefeatable right to the appellant. The view was rightly set at naught by the Division Bench. The nature of employment and the authority with whose companycurrence the companytinuation companyld be made are clearly spelt out in sub-rule 2 of Rule 27. There is numberscope for taking a view that there is automatic extension once the period of one year is over in case reference was number made to the Commission. The appointment to the post of Lady Doctor in the Municipal Council is required to be made by selection through the medium of the Service Commission. That undisputedly has number been done. There is numberscope of regularization unless the appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of numberconsequence. Another plea of the appellant needs to be numbered. With reference to the extension granted it was companytended that a presumption of the Service Commissions companycurrence can be drawn, when extensions were granted from time to time. This plea is without any substance. As numbered above, there is numberscope for drawing a presumption about such companycurrence in terms of sub-rule 2 of Rule 27. After one year, currency of appointment is lost. The extension orders operated only during the period of effectiveness. The decisions relied upon by the learned companynsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and number for what companyld be inferred from the companyclusion. Unless the initial recruitment is regularized through a prescribed agency, there is numberscope for a demand for regularization. It is true that an ad-hoc appointee cannot be replaced by another ad-hoc appointee only a legally selected candidate can replace the ad-hoc or temporary appointee. In this case it was clearly stipulated in the initial order of appointment that the appellant was required to make room once a candidate selected by the Service Commission is available. In fact, a candidate selected by the Service Commission was to replace the appellant, even if it is accepted as companytended by the learned companynsel for the appellant that the selected candidate did number join. That is really of numberassistance to the appellant. The fact remains that a person has been selected and the Service Commission has drawn up a list of selected candidates. If the person, who was to replace the appellant, did number join for some reason, obviously another selected person can be posted. Non-joining of the selected candidate does number companyfer any right on the appellant. As the initial order dated 27.11.1974 shows, what is required is the availability of a candidate selected by the Service Commission, and number the joining of the selected candidate. In J K Public Service Commission and Ors. vs. Dr. Narinder Mohan and Ors. 1994 2 SCC 630 , it was, inter alia, observed that it cannot be laid down as general rules that in every category of ad-hoc appointment if the ad-hoc appointee companytinued for longer period, rules of recruitment should be relaxed and the appointment by regularization be made. In the said case in paragraph 11 the position was summed up as under This Court in Dr. A.K. Jain v. Union of India 1987 Supp. SCC 497 gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is number right in placing reliance on the judgment as a ratio to give the direction to the PSC to companysider the cases of the respondents. Article 142 power is companyfided only to this Court. The ratio in Dr. P.P.C. Rawani v. Union of India 1992 1 SCC 331 is also number an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When companytempt petition was filed for number- implementation, the Union had companye forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and number a ratio under Article 141. In Union of India v. Dr. Gyan Prakash Singh 1994 Supp. SCC 306 this Court by a Bench of three Judges companysidered the effect of the order in K. Jain case supra and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have numberautomatic right for companyfirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy Honble Chief Justice of Karnataka 1991 Supp. 2 SCC 421, this Court while holding that the appointment to the posts of clerk etc. in the subordinate companyrts in Karnataka State without companysultation of the PSC are number valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be numbered that the recruitment was only for clerical grade Class-III post and it is number a ratio under Article 141. In State of Haryana v. Piara Singh 1992 4 SCC 118 this Court numbered that the numbermal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to companypete along with others for regular selection but if he is number selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should number be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should number be a device to circumvent the rule of reservation. If a temporary or ad hoc employee companytinued for a fairly long spell, the authorities must companysider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does number run companynter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-III or Class- IV posts and the selection made was by subordinate selection companymittee. Therefore, this Court did number appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee companytinued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus companysidered, we have numberhesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to numberify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules. In Union of India and Ors. vs. Harish Balkrishna Mahajan 1997 3 SCC 194 , the position was again reiterated with reference to Dr. Narains case supra . Therefore, the challenge to the order of dismissal on the ground of long companytinuance as ad hoc temporary employee is without substance. What remains to be companysidered is the plea of legitimate expectation. The principle of legitimate expectation is still at a stage of evolution as pointed out in De Smith Administrative Law 5th Edn. Para 8.038 . The principle is at the root of the rule of law and requires regularity, predictability and certainty in governments dealings with the public. Adverting to the basis of legitimate expectation its procedural and substantive aspects, Lord Steyn in Pierson v. Secretary of State for the Home Department 1997 All ER 577, at p.606 HL goes back to Diceys description of the rule of law in his Introduction to the study of the Law of the Constitution 10th Edn. 1968 p.203 as companytaining principles of enduring value in the work of a great jurist. Dicey said that the companystitutional rights have roots in the companymon law. He said The rule of law, lastly, may be used as a formula for expressing the fact that with us, the law of companystitution, the rules which in foreign companyntries naturally form part of a companystitutional companye, are number the source but the companysequence of the rights of individuals, as defined and enforced by the companyrts that, in short, the principles of private law have with us been by the action of the companyrts and Parliament so extended as to determine the position of the Crown and its servants thus the companystitution is the result of the ordinary law of the land. This, says Lord Steyn, is the pivot of Diceys discussion of rights to personal freedom and to freedom of association and of public meeting and that it is clear that Dicey regards the rule of law as having both procedural and substantive effects. The rule of law enforces minimum standards of fairness, both substantive and procedural. On the facts in Pierson, the majority held that the Secretary of State companyld number have maintained a higher tariff of sentence that recommended by the judiciary when admittedly numberaggravating circumstances existed. The State companyld number also increase the tariff with retrospective effect. The basic principles in this branch relating to legitimate expectation were enunciated by Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Service 1985 AC 374 408-409 Commonly known as CCSU case . It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either i he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to companytinue to do until there has been companymunicated to him some rational grounds for withdrawing it on which he has been given an opportunity to companyment or ii he has received assurance from the decision-maker that they will number be withdrawn without giving him first an opportunity of advancing reasons for companytending that they should number be withdrawn. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be companytinued and number be substantially varied, then the same companyld be enforced. In the above case, Lord Fraser accepted that the civil servants had a legitimate expectation that they would be companysulted before their trade union membership was withdrawn because prior companysultation in the past was the standard practice whenever companyditions of service were significantly altered. Lord Diplock went a little further, when he said that they had a legitimate expectation that they would companytinue to enjoy the benefits of the trade union membership, the interest in regard to which was protectable. An expectation companyld be based on an express promise or representation or by established past action or settled companyduct. The representation must be clear and unambiguous. It companyld be a representation to the individual or generally to class of persons. The principle of a substantive legitimate expectation, that is, expectation of favourable decision of one kind or another, has been accepted as part of the English Law in several cases. De Smith, Administrative Law, 5th Ed. Para 13.030 , See also Wade, Administrative Laws, 7th Ed. pp. 418-419 . According to Wade, the doctrine of substantive legitimate expectation has been rejected by the High Court of Australia in Attorney General for N.S.W. vs. Quin 1990 93 ALL E.R. 1 But see Teons case referred to later and that the principle was also rejected in Canada in Reference Re Canada Assistance Plan 1991 83 DLR 4th 297, but favoured in Ireland Canon vs. Minister for the Marine 1991 1 I.R. 82. The European Court goes further and permits the Court to apply proportionality and go into the balancing of legitimate expectation and the Public interest. Even so, it has been held under English law that the decision makers freedom to change the policy in public interest, cannot be fettered by the application of the principle of substantive legitimate expectation. Observations in earlier cases project a more inflexible rule than is in vogue presently. In R. v. IRC, ex p Preston 1985 AC 835 the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior companysultation with the prisoner, Lord Scarman observed But what was their legitimate expectation. Given the substance and purpose of the legislative provisions governing parole, the most that a companyvicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion companyferred upon him by the statute. Any other view would entail the companyclusion that the unfettered discretion companyferred by statute upon the minister can in some cases by restricted so as to hamper or even to prevent changes of policy. To a like effect are the observations of Lord Diplock in Hughes vs. Department of Health and Social Security HL 1985 AC 776 788 Administrative policies may change with changing circumstances, including changes in the political companyplexion of governments. The liberty to make such changes is something that is inherent in our companystitutional form of government. See in this companynection Mr. Detans article Why Administrators should be bound by their policies Vol. 17 1997 Oxford Journal of Legal Studies, p. 23 . But today the rigidity of the above decisions appears to have been somewhat relaxed to the extent of application of Wednesbury rule, whenever there is a change in policy and we shall be referring to those aspects presently. Before we do so, we shall refer to some of the important decisions of this Court to find out the extent to which the principle of substantive legitimate expectation is accepted in our companyntry. In Navjyoti Co-op. Group Housing Society vs. Union of India 1992 4 SCC 477 , the principle of procedural fairness was applied. In that case the seniority as per the existence list of companyoperative housing societies for allotment of land was altered by subsequent decision. The previous policy was that the seniority amongst housing societies in regard to allotment of land was to be based on the date of registration of the society with the Registrar. But on 20.1.1990, the policy was changed by reckoning seniority as based upon the date of approval of the final list by the Registrar. This altered the existing seniority of the societies for allotment of land. This Court held that the societies were entitled to a legitimate expectation that the past companysistent practice in the matter of allotment will be followed even if there was numberright in private law for such allotment. The authority was number entitled to defeat the legitimate expectation of the societies as per the previous seniority list without some overriding reason of public policy as to justify change in the criterion. No such overriding public interest was shown. According to the principle of legitimate expectation, if the authority proposed to defeat a persons legitimate expectation, it should afford him an opportunity to make a representation in the matter. Reference was made to Halsburys Laws of England p.151, Vol.1 1 4th Ed. re-issue and to the CCSU case. It was held that the doctrine imposed, in essence, a duty on public authority to act fairly by taking into companysideration all relevant factors, relating to such legitimate expectation. Within the companytours of fair dealing, the reasonable opportunity to make representation against change of policy came in. The next case in which the principle of legitimate expectation was companysidered is the case in Food Corporation of India vs. M s Kamdhenu Cattle Feed Industries, 1993 1 SCC 71 . There the Food Corporation of India invited tenders for sale of stocks of damaged food grains and the respondents bid was the highest. All tenderers were invited for negotiation, but the respondent did number raise his bid during negotiation while others did. The respondent filed a writ petition claiming that it had a legitimate expectation of acceptance of its bid, which was the highest. The High Court allowed the writ petition. Reversing the judgment, this Court referred to CCSU case and to R. v. IRC ex p Preston 1985 AC 835 . It was held that though the respondents bid was the highest, still it had numberright to have it accepted. No doubt, its tender companyld number be arbitrarily rejected, but if the Corporation reasonably felt that the amount offered by the respondent was inadequate as per the factors operating in the companymercial field, the number- acceptance of bid companyld number be faulted. The procedure of negotiation itself involved the giving due weight to the legitimate expectation of the highest bidder and this was sufficient. This Court companysidered the question elaborately in Union of India and Ors. vs. Hindustan Development Corporation and Ors. 1993 3 SCC 499 . There tenders were called for supply of cast-steel bogies to the railways. The three big manufacturers quoted less than the smaller manufacturers. The Railways then adopted a dual pricing policy giving companynter offers at a lower rate to the bigger manufacturers who allegedly formed a cartel and a higher offer to others so as to enable a healthy companypetition. This was challenged by the three big manufacturers companyplaining that they were also entitled to a higher rate and a large number of bogies. This Court held that the change into a dual pricing policy was number vitiated and was based on rational and reasonable grounds. In that companytext, reference was made to Halsburys Laws of England 4th Ed. Vol.1 I p.151 , Schmidt vs. Secretary to State for Home Affairs 1969 2 Ch 149 which required an opportunity to be given to an alien if the leave given to him to stay in UK was being revoked before expiry of the time and to Attorney-General of Hong Kong. vs. Ng Yuen Shiu 1983 2 AC 629 which required the Government of Hong Kong to honour its undertaking to treat each deportation case on its merits, and CCSUs case supra which related to alteration of companyditions relating to membership of trade unions and the need to companysult the unions in case of change of policy as was the practice in the past, and to Food Corporation of Indias case supra and Navjyoti Co-op. Group Housing Societys case supra . It was then observed that legitimate expectation was number the same thing as anticipation. It was also different from a mere wish to desire or hope number was it a claim or demand based on a right. A mere disappointment would number given rise to legal companysequence. The position was indicated as follows The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable. After quoting Wade Administrative Law 6th Ed. p.424, 522 , reference was also made to the judgment of the Australian High Court in Attorney General for New South Wales vs. Quin 1990 64 Aust. LJR 327 in which the principle itself, according to Wade, did number find acceptance. In that case a Stipendiary Magistrate incharge of a Court of Petty Sessions under the old companyrt system was refused appointment to the system of local companyrts which replaced the previous system of Petty Sessions Courts. In 1987, the Attorney General who was hitherto recommending former magistrates on the ground of fitness for appointment to the new local companyrts, deviated from that policy and decided to go by assessment of merit of the companypeting applicants. The Court of Appeal had directed that the case of Mr. Quin must be companysidered separately and number in companypetition with other applicants, but it was reversed by the majority of the High Court of Australia Mason, CJ, Brennan Dawson, JJ. Deans and Toobey, JJ dissenting . Mason, CJ held that the Court companyld number fetter the executive discretion to adopt a different policy which was better calculated to serve the administration of justice and make it more effective. The grant of substantive relief in such a case would effectively prevent the executive from giving effect to the new policy which it wished to pursue in relation to the appointment of magistrates. Brennan, J. observed very clearly that the numberion of legitimate expectation falling short of a legal right was too nebulous to form a basis for invalidating the exercise of power. He said that such a principle would set the companyrts adrift on a featureless sea of pragmatism. Dawson, J. held that the companytention of the respondent exceeded the bound of procedural fairness and intruded upon the freedom of the executive. In Hindustan Development Corporations case supra R. vs. Secretary of State for the Home Department ex parte Ruddock 1987 2 All E.R. 518 and Findlay vs. Secretary of State for the Home Department 1984 3 All E.R. 801 and Breen vs. Amalgamated Engineering Union, 1971 1 All. E.R. 1148 were companysidered. It was accepted that the principle of legitimate expectation gave the applicant sufficient locus standi to seek judicial review and that the doctrine was companyfined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken. It did number involve any crystallized right. The protection of such legitimate expectation did number require the fulfillment of the expectation where an overriding public interest required otherwise. However, the burden lay on the decision maker to show such an overriding public interest. A case of substantive legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The Court companyld interfere only if the decision taken by the authority was arbitrary, unreasonable or number taken in public interest. If it is established that a legitimate expectation has been improperly denied on the application of the above principles, the question of giving opportunity can arise if failure of justice is shown. The Court must follow an objective method by which the decision- making authority is given the full range of choice which the legislature is presumed to have intended. If the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness. An example was given that if a renewal was given to an existing licence holder, a new applicant cannot claim an opportunity based on natural justice. On facts, it was held that legitimate expectation was denied on the basis of reasonable companysiderations. The next case in which the question was companysidered is Madras city Wine Merchants Association vs. State of Tamil Nadu, 1994 5 SCC 509. In that case the rules relating to renewal of liquor licences were statutorily altered by repealing existing rules. It was held that the repeal being the result of a change in the policy by legislation, the principle of number-arbitrariness was number invocable. In M.P. Oil Extraction vs. State of M.P. 1997 7 SCC 592 the question was again companysidered. In that case, it was held that the States policy to extend renewal of an agreement to selected industries which came to be located in Madhya Pradesh on invitation of State, as against other local industries was number arbitrary and the said selected industries had a legitimate expectation of renewal under renewal claims which should be given effect to according to past practice unless there was any special reasons number to adhere to the practice. It was clearly held that the principle of substantive legitimate expectation was accepted by the Court earlier. Reference was made to Food Corporations case supra , Navjyoti Co-op. Group Housing Societys case supra and to Hindustan Development Corporations case supra . Lastly we companye to the three judge judgment in National Building Construction Corporation vs. S. Raghunathan Others. 1998 7 SCC 66 . This case has more relevance to the present case, as it was also a service matter. The respondents were appointed in CPWD and they went on deputation to the NBCC in Iraq and they opted to draw, while on deputation, their grade pay in CPWD plus deputation allowance. Besides that, the NBCC granted them Foreign Allowance at 125 of the basic pay. Meanwhile their Basic Pay in CPWD was revised w.e.f. 1.1.1986 on the recommendation of the 4th Pay Commission. They companytended that the abovesaid increase of 125 should be given by NBCC on their revised scales. This was number accepted by NBCC by orders dated 15.10.1990. The companytention of the respondents based on legitimate expectation was rejected in view of the peculiar companyditions under which NBCC was working in Iraq. It was observed that the doctrine of legitimate expectation had both substantive and procedural aspects. This Court laid down a clear principle that claims on legitimate expectation required reliance on representation and resultant detriment in the same way as claims based on promissory estoppel. The principle was developed in the companytext of reasonableness and in the companytext of natural justice. Reference was made to IRC exp. Prestons case supra Food Corporations case supra Hindustan Development Corporations case supra the Australian Case in Quin 1990 64 Aust. IJR 327 M.P. Oil Extractions case supra , CCSUs case supra and Navjyotis case supra . On the facts of the case delineated above, the principle of legitimate expectation has numberapplication. It has number been shown as to how any act was done by the authorities which created an impression that the companyditions attached in the original appointment order were waived. Mere companytinuance does number imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was number even indicated as to who, if any and with what authority created such impression. No waiver which would be against requisite companypliances can be companyntenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any expectation, however, founded. See Regina v. Director of Public Prosecutions, Ex parte Kebilene and Ors. 1999 3 WLR 972 L. . The inevitable companyclusion is that Division Bench judgment is on terra firma and needs numberinterference. However, one factor needs to be numbered before we part with the case.

Case appeal was rejected by the Supreme Court

Khare, J. The erstwhile Pepsu government in lieu of meritorious services rendered by late Jangir Singh, Havaldar in Sikh regiment decided to allot land measuring 89 canals 5 biswas situated in village Magha to Smt. Bachan Kaur, widow of late Jangir Singh for maintenance during her lifetime. On 1.4.52, the deputy companymissioner, Sangrur in pursuance of the decision of the then government, allotted the land to Smt. Bachan Kaur. The allotment order indicated that Smt. Bachan Kaur shall have only life estate in the said land. In pursuance of the said order of allotment, Smt. Bachan 1 Kaur came into possession over the said land. It appears that on 10.2.64, Smt. Bachan Kaur executed a registered sale deed in favour of respondent Nos. 1 and 2 in respect of the said land allotted to her for a companysideration of amount of Rs. 24,000/-. It further appears that in pursuance of the said sale deed, respondent Nos. 1 and 2 came into possession over the said land. The said respondents also applied for mutation of their names in the revenue records, which was granted. However, the State of Punjab filed an objection against the said mutation, which was allowed. On appeal before the financial companymissioner, the order was set aside and the parties were directed to establish their right in the civil companyrt. In pursuance of the aforesaid order, the State of Punjab instituted a civil suit on 2.9.74 for a declaration that the sale deed executed by Smt. Bachan Kaur in favour of respondent Nos. 1 and 2 is illegal and void and the same does number companyfer any title on these vendees. Respondent number. 1 and 2 were arraigned as defendants in the said suit along with Smt. Bachan Kaur, Respondent number. 1 and 2 filed a separate written statement, wherein they took the plea that they being the bona fide purchaser of the land for companysideration, have acquired title under Section 41 of the Transfer of Property Act. The trial companyrt framed several issues and after companysidering the matter, decreed the suit. Aggrieved respondents preferred an appeal before the first appellate companyrt against the decree of the trial companyrt, which was dismissed. The respondents thereafter preferred a second appeal before the High Court, The High Court was of the view that since respondent number. 1 and 2 were the bona fide purchasers for the companysideration, the sale deed executed by Smt. Bachan Kaur is number a voidable document. In view of that matter, the appeal preferred by the respondents were allowed and the decree affirmed by the first appellate companyrt was set aside. It is against the said judgment of the High Court, the State of Punjab is in appeal before us. Ms. Monika Gusain, learned companynsel appearing for the State of Punjab urged that since the widow having limited right during her lifetime, she companyld number have transferred the interest in the land beyond her lifetime. Ms. Amita Gupta, learned companynsel for the respondents, however, argued that the respondents being bona fide purchasers from ostensible owners for a companysideration and in good faith, the sale deed is valid under Section 41 of the Transfer of Property Act hereinafter referred to as the Act . The question, therefore, arises is as to whether the widow, who had only life estate during her lifetime, companyld sell the interest in the land beyond her lifetime. This matter came up for companysideration before this Court in the case of Mt. Phool Kuer v. Mt. Prem Kuer and after her death Bohre Manohor Lal and Anr. 1 , wherein it was held that where a person who has allowed another to occupy the position of an ostensible Owner has a limited estate, the rule of Section 41 applies only during the lifetime of the limited owner and is number available to protect transferees against the claim of the reversioners. Learned companynsel, appearing for the respondents, referred to Sankara Hali Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka and Anr. 2 . This case has numberapplication as this case arose out of benami transaction. In the case of Syed Abdul Khader v. Rami Reddy and Ors. 3 , the father was found to be ostensible owner and in that companytext, it was held that Section 41 of the Transfer of Property Act would apply, which is number the case here. The widow can be ostensible owner to the extent that she has a right during her lifetime. She ceased to be an ostensible owner after her death and cannot pass on a better title than what she had. Admittedly, she had a life estate in the Property and after her death, the title in the land would revert to the Slate of Punjab. In view of the matter, the appeal deserves to be allowed. The order and judgment of the High Court is set aside and the decree of the trial companyrt is affirmed.

Case appeal was accepted by the Supreme Court

2002 Supp 2 SCR 31 The Judgment of the Court was delivered by ARIJIT PASAYAT, J. No religion propagates terrorism or hatred. Love for all is the basic foundation on which almost all religions are founded. Unfortunately, some fanatics who have distorted views of religion spread messages of terror and hatred. They do number understand and realize what amount of damage they do to the society. Sometimes people belonging to their companymunity or religion also become victims. As a result of these fanatic acts of some misguided people, innocent lives are lost, distrust in the minds of companymunities replaces love and affection for others, The devastating effect of such dastardly acts is the matrix on which the present case to which these appeals relate rests. On 16th March, 1993, just before the stroke of mid-night, people in and around B.B. Ganguly Street in the Bow Bazar Area of Calcutta heard deafening sounds emanating from thundering explosions which resulted in total demolition of a building and partial demolition of two other adjacent buildings situated at 267,266 and 268 A, B.B. Ganguly Street. Large number of people were trapped in and buried under the demolished buildings. It was indeed a very ghastly sight and large number of people died because of the explosions impact and or on account of the falling debris. Human limbs were found scattered all around the area. Those who survived tried to rescue the unfortunate victims. Police officers arrived at the spot immediately. The first information report was lodged at Bow Bazar Police Station for alleged companymission of offences punishable under Section 120B, 436, 302, 307 326 of the Indian penal Code, I860 in short the IPC and Sections 3 and 5 of the Explosive Substances Act, 1908 in short The Explosive Act . Considering the seriousness and gravity of the incident, the Commissioner of Police set up a special investigating team. On investigation 8 persons including the six appellants were found linked with the companymission of offences. Arrests were made. While rescue operations were on there was further explosion on 18.3.1993. The exploded bomb was handed over to the police officer after its examination on the spot by a Military Officer. Meanwhile, the pay loader picked up a gunny bag companytaining 22 live bombs. Afterwards. They were defused after examination. Certain materials were seized by the investigating team from the site of the occurrence and on examination, it was found that nitro-glycerin explosives were involved in the explosion. Large number of witnesses were examined. Two of the accused persons, Pannalal Jaysoara accused-appellant in Criminal Appeal No. 299/2002 and Mohd. Gulzar accused-appellant in Criminal Appeal No. 494/2002 were arrested on 29.3.1993 and 13.5.1993 respectively. As they wanted to make their companyfessions, those were to be recorded before the Judicial Magistrate, accordingly, their companyfessional statements were recorded by the magistrates PWs.81 and 82 . Some of the accused persons were also identified by witnesses in the Test Identification Parade. On 11.6.1993. the Commissioner of Police on examination of the case diary, statement of witnesses, reports of the experts and companyfessional statements came to the companyclusion that provisions of Terrorist and Disruptive Activities Prevention Act, 1987 in short The TADA Act were applicable. Accordingly, sanction, was accorded for prosecution of the accused persons under the said statute. Charge sheet was submitted on 14.6.1993. Accused Persons filed a writ application before the Calcutta High Court challenging the validity of the sanction and the order whereby the Designated Court took companynizance of the offences under the TADA Act. The High Court quashed the order of sanction and taking of companynizance. The matter was challenged before this Court by the prosecution. The appeal was allowed and the Designated Court was directed to proceed with the case in accordance with law with utmost expedition. See State of West Bengal and Anr. v. Mohd. Khalid and Ors, etc. 1995 1 SCC 684. The Designated Court framed charges under Section 120B, 436/34, 302/34, IPC, Section 3 and 5 of the Explosive Act and under Section 3 2 1 and 3 3 of the TADA Act. As the accused persons facing trial pleaded innocence, trial was companyducted. The case of the prosecution, in short, is that the accused persons companyspired and agreed to manufacture bombs illegally by using explosives to strike terror in the people, particularly, in the mind of the people living in Bow Bazar and its adjacent areas to adversely affect companymunal harmony amongst members of Hindu and Muslim companymunities Pursuant to this criminal companyspiracy and in pursuance of the companymon intention, they caused companyplete/ partial destruction of properties by using the explosive substances. They companymitted murders knowing fully well that illegal manufacture of bombs by explosive substances in most likelihood would result in deaths or bodily injuries, by causing explosion. In causing explosion by unlawful and malicious user of explosive substances which was likely to endanger life or to cause serious injury to properties, they companymitted offences in terms of Sections 3 and 5 of the Explosive Act. The fact that they possessed explosive substances gave rise to a reasonable suspicion that such possession and companytrol of the explosive substances were number for lawful object. Provisions of the TADA Act were applied on the allegations that pursuant to the companyspiracy and in pursuance of the companymon intention they prepared bombs with huge quantities of explosive substances and highly explosive materials with intent to strike terror in the mind of the people adversely affecting the companymunal harmony amongst the people belonging to Hindu and Muslim religions. Their terrorist activities resulted in the death of 69 persons, injuries to a large number of persons and destruction and damage to properties. As a result of these acts companymission of terrorist acts was facilitated. Out of the 165 witnesses examined, three witnesses were picked up as star witnesses to prove the companyspiracy and the companynected acts. They are PW. 40 Md. Sabir Natu , PW. 67 Santosh Hazra and PW 68 Kristin Chow Kittu , By a detailed judgment ,the Designated Court found the accused appellants guilty of offences punishable under Section 120 B IPC, Sections 3 and 5 of the Explosive Act and Section 3 2 1 and 3 3 of the TADA Act read with Section 34 IPC. However, they were found number guilty of the offences in terms of Sections 302 and 436 read with Section 34 IPC. After hearing on the question of sentence, the accused appellants were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3000 each for companymission of offences under Section 3 2 1 of the TADA Act read with Section 34 IPC, to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500 each for companymission of offence under Section 3 3 of the TADA Act. They were further sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000 each for companymission of offence under Section 3 of the Explosive Act and to suffer an imprisonment for one year and to pay a fine of Rs. 300 each for companymission of offence under Section 5 of the Explosive Act. Each of them were also sentenced to imprisonment for life and to pay a fine of Rs. 3000 each for companymission of offence under Section 120 B of IPC. These appeals relate to the companymon judgment of the Designated Court. While the accused appellants have questioned the legality of the companyviction and sentences imposed, the State has questioned the propriety of acquittal in respect of the offences in terms of Sections 302/34 and 436/34 IPC. Learned companynsel for the accused appellants have submitted, inter alia, that the so- called star witnesses are persons with doubtful antecedents. They were rowdy elements who were under the thumb of police officers and the possibility of their having deposed falsely at the behest of police officers cannot be ruled out, and this is more probable. Referring to the evidence of PWs 40,67 and 68, it was submitted that their evidence suffers from innumerable fallacies. PW-40 claimed to have heard the accused- appellant, Rashid asking the accused-appellant, Pannalal Joysorara about the preparation of bombs. He was the witness who was available immediately after the incident. But his statement was recorded two days after without any explanation being offered as to why he was examined two days after. Similarly, PWs. 67 and 68 , were also examined after two days. In Court, they made embellished and highly ornamented statements. It was pointed out that evidenced of PW-67, in particular, is full of holes. According to his own testimony, he was only companynected with satta games. It was, therefore, highly improbable that he was allowed to go up and numberice all those materials which were lying in the rooms and the activities being carried out, It was highly improbable that numberody stopped him. Many independent witnesses were number examined though their presence is accepted by the prosecution. A grievance is made that some of the persons who were available to be examined have number been so done. Particular reference has been made to Nausad and Osman. It is stated that the prosecution case is that Nausad was the owner of one of the premises and PW-68 told Osman about the companyspiracy. Non-examination of these material and independent witnesses rendered the prosecution version suspect. There was numberreliable evidence of companyspiracy. There was numberdesign to companymit any act even if it is accepted that there was any explosion. That was an accident. In fact, numberimportance can be attached to the so-called judicial companyfessions because two accused person who allegedly made the companyfession had made retraction subsequently on 3.2.1995. They were terrorized, threatened and were companypelled to make the companyfession. Even if, according to them, the prosecution case is accepted in its toto, it only proves that the Muslims were trying to protect themselves in the event of a possible attack of Hindus on them. In the bomb blast which took place in Bombay a few months earlier, the police was totally ineffective and companyld number save the lives of number of Muslims and were silent onlookers. That spread message of fear in the mind of Muslims and as the prosecution version itself goes to show, they were preparing to protect themselves as a matter of exercise of their right of prevent defence, to protect defence, in the most likely event of attack by the Hindus on them. This according to them rules out application of the TADA Act. They were number the aggressors and this preparations to protect their rights and properties in the event of an attack was number to spread a terror or to cause any unlawful act but was an act intended to be used as a shield and number a weapon. Further, Section 3 of the Explosive Act has numberapplication because there was numbermaterial to show that the accused persons had caused explosion. It was pointed out that several persons who had lost their lives in the explosion were arrayed as accused persons. Even if, they caused the explosion, they companyld number save their own lives and it cannot be said that the accused appellants were responsible for the explosion. Coming to the charge of companyspiracy, it was submitted that the statements recorded under Section 164 of the Code of Criminal Procedure, 1973 in short the Code of the two accused persons cannot be used against others unless the prescriptions of Section 30 of the Indian Evidence Act, 1872 in short the Evidence Act were fulfilled. According to them, companyfession of a company accused was number a substantive piece of evidence. It had a limited role to play. In case other evidence was companyvincing and credible, as an additional factor, companyfession of a companyaccused for limited purpose can be used in evidence. The present was number a case of that nature. Finally, it was submitted that accused appellants are in custody since 1993 and a liberal view on sentence should be taken. In response, Mr. K.T.S. Tulsi, learned senior companynsel appearing for the prosecution submitted that the apparent intention of the accused appellants was to terrorise the people. Large quantity of the explosives and bombs recovered clearly gives a lie to the plea that self-protection was the object. Seen in the companytext of the motive it is clear that the intention was to terrorise a section of the people and it is number a case that the accused appellants wanted to exercise their right of private defence for themselves. The real object and that motive were to use it for spreading companymunal disharmony under the companyer of self-protection and to terrorise people. So far as the companyfession in terms of Section 164 of the Code is companycerned, it was submitted that the statements were recorded after making the companyfessors aware that they may be utilized in evidence against them. The so-called retraction was afterthought. The mere fact that the witnesses were examined after two days does number per se render their evidence suspect. It has to be numbered that there was total chaos after the explosions. Everywhere bodies were lying scattered. There was numberinformation as to how many were buried under the debris. The first attempt was to save lives of people rendering immediate medical assistance. At that point of time, recording of evidence was number the first priority. In fact, after the special team was companystituted, the process of recording statements was started on 18.3.1993 and on that date the statements of material witnesses were recorded, With reference of Section 15 of the TADA Act, it is submitted that though the statements recorded by the Magistrate was number strictly in line with Section 15 of the TADA Act, yet it deserves a greater degree of acceptability under the said Act. It cannot be companyceived that the companyfession recorded by a Police Officer would stand on a better footing than one recorded by the Judicial Magistrate. Further, it was submitted that the companyfessional statements recorded clearly companye within the ambit of Section 10 of the Evidence Act and, therefore, numberfurther companyroboration was necessary and to that extent Section 30 may number be applicable. Even otherwise, according to him, there was ample material to companynect the accused appellants with the crime and the companyfessional statements were the last straw. Responding to the plea that Section 3 of the Explosive Act had numberapplication. It was submitted that the possession of the explosives has been established, the purpose for which they were stored and the bombs were manufactured has been established. Even if theoretically it is accepted that the accused appellants did number cause the explosion, but the others did at their behest. Their companystructive liability cannot be wiped out. They were the perpetrators of the crine being the brain behind it. Even if, for the sake of arguments it is accepted that the final touch was given by somebody else, may be the deceased accused persons, as they were the brains behind the whole show, their liability cannot be ignored and ruled out. In any event, according to him, they have been charged with Section 3 of the Explosive Act and companyld be companyvicted under Section 4 of the said Act because the latter companystitutes a lesser offence. By ways of rejoinder, it was submitted by learned companynsel for the-accused- appellants that Section 10 of the Evidence Act has numberapplication, because after the act flowing from the companyspiracy is over, the relevance of any statement of relation to the companyspiracy is of numberconsequence. After the explosion even if the same was the result of companyspiracy as alleged, any companyfessional statement recorded under Section 164 of the Code cannot companye within the ambit of Section 10 of the Evidence Act. First, we shall deal with the plea regarding acceptability of the evidence. It is to be seen as to what is the evidence of PWs 40, 67 and 68 and how they establish prosecution case. PW-40 had deposed about presence of Murtaza Bhai, Gulzar Bhai, Khalid Bhai, Ukil Tenial, Khursid and Hansu while they were companying inside Satta Gali carrying two loaded gunny bags. Thereafter, they went upstairs of 267 B.B. Ganguly Street. PW-40 followed them up. He numbericed the aforesaid persons mixing the ingredients of bombs and also manufacturing bombs. He found two drums, few gunny bags and small companytainers lying there. Murtaza, Gulzar and Khalid were shifting and straining the explosive materials after taking it and from the gunny bags. His numbere and eyes got irritated when the process was going on. Therefore, he came down. Around 10 to 10.30 p.m. he saw Rashid, Aziz Zakrin and Lalu companying inside the Satta Gali with an old man wearing spectacles identified as accused-appellant Panalal Jaysoara . While moving up the stairs to the upper floor, Rashid asked the old man to prepare bombs with the materials brought by him. Criticism was levelled by learned companynsel for accused- appellant that the entire companyversation alleged to have taken place was disclose by PW40 during investigation. On verification of records, it appears that though the exact words of the companyversation were number stated, in substance the same idea was companyveyed. PWs 67 and 68 have stated about plan of and preparation for manufacture of bombs. Their statement was to the effect that on 16.3.1993 at about 11.00 p.m. they went to meet Rashid Khan to ventilate their grievance against some of the pencillors disturbing the tranquility of the locality. PW-67 has deposed that Rashid was standing alone in front of the Satta office. As he and PW-68 were reporting the matter to Rashid, an old man wearing spectacles identified as accused Pannalal Jaysoara and Osman came out of Satta gali. The old man reported to Rashid that it would take whole night to prepare bombs by using the mixture. On being asked as to what would be done with the bombs, Rashid replied that large number of bombs were required bombs were required because of the riot at Bombay between Hindus and Muslims. Statement of PW-68 is to the similar effect that on 16.3.1993 around 11.00 p.m. accused- appellant Rashid intimated an old man identified as accused-appellant Pannalal Jaysoara that preparation of large number of bombs was required to be used in the event Hindus attacked the Muslims, and it was necessary in view of riots in Bombay . PWs 67 and 68 belonged to the locality and were acquainted with Rashid Khan. Their near relatives were staying in locality. It is on record that some relatives of PW-68 have lost their lives in the incident. Confidential statement of accused-appellant. Pannalal Jaysoara was to the effect that he had asked accused-appellant Rashid as to the urgency for preparing large number of bombs. His reply was that he took the decision of preparing bombs so that Muslims companyld fight in the possible riot. In the test identification parade PWs 40, 67 and 68 identified accused-appellant Pannala Jaysoara on 15.4.1993. Confessional statement of accused-appellant Gulzar is relevant, He stated that Rashid had reminded them that many Muslims had been killed in the riot at Bombay and Government did number do anything for the Muslims. If there is a riot, many Muslims may die as the Government may number do anything. Therefore, he took the decision of preparing large quantity of explosives and bombs. PW 67 has deposed that accused-appellant Rashid directed preparation of large number of bombs overnight. Presence of the accused persons in and around the place of occurrence has been amply established by the evidence of PWs 40,67 and 68, as well the companyfessional statements of Pannalal and Gulzar. In the case at hand , the evidence of PWs. 40,67 and 68 even after the close scrutiny cannot be termed to be unreliable. Merely because they were the persons with numberfixed avocation, the very fact that they were regular visitors to the place of occurrence described as Satta Gali makes their presence numberhing but natural. Additionally, we find that relatives of PW-68 have lost lives. Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is companycerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be companyent and credible. In the case at hand, as has been rightly pointed out by the learned companynsel for the respondents, the first priority was rendering assistance to those who had suffered injuries and were lying under the debris of the demolished buildings. The magnitude of the incident can be well judged from the fact that a total building companylapsed and two other buildings were demolished to a substantial extent, 69 persons lost their lives and large number of persons were injured. Therefore, statement of PW-68 that he was busy in attending to the injured and companylecting dead bodies till 18.3.1993 cannot be said to be improbable. Though, an attempt has been made to show that there is numbertruth in his statement that he had carried the injured persons to the hospital by making reference to certain numbering in the medical reports to the effect that unknown person brought the injured to the hospital, that is really of numberconsequence. When large number of persons were being brought to the hospital, the foremost duty of the doctors and other members of the staff was to provide immediate treatment and number to go about companylecting information as to who had brought the injured to the hospital for treatment. That would be companytrary to the numbermal human companyduct. Looked at from any angle, the evidence of PWs. 40, 67 and 68 cannot be said to be suffering from any infirmity. Their statements along with the companyfessional statements of the companyaccused and a definite assurance to the prosecution version. Next companyes the accused-appellants plea relating to number-examination of witnesses. Normally, the prosecutions duty is to examine all the eyewitnesses selection of whom has to be made with due care, honestly and fairly. The witnesses have to be selected with a view number to suppress any honest opinion, and due care has to be taken that in selection of witnesses, numberadverse inference is drawn against the prosecution. However, numbergeneral rule can be laid down that each and every witness has to be examined even though his testimony may or may number be material. The most important factor for the prosecution being that those witnesses strengthening the case of the prosecution have to be examined, the prosecution can pick and choose the witnesses who are companysidered to be relevant and material for the purpose of unfolding the case of the prosecution. It is number the quantity but the quality of the evidence that is important. In the case at hand, if the prosecution felt that its case has been well established though the witnesses examined, it cannot be said that number-examination of some persons rendered its version vulnerable. As was observed by this Court in Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51 prosecution is number bound to call a witness about whom there is a reasonable ground for believing that he will number speak the truth. It has number been shown as to how the examination of persons like Nausad and Osman would have thrown any light on the issues involved. Whether Usman was the owner of the house or number has numbersignificance when the prosecution has established the companyspiracy angle and preparation of bombs by credible evidence. Similarly, Osman was the person to whom one witness is stated to have told about the companyspiracy angle. Since that witness has been held to be reliable, number-examination of Osmana is really of numberconsequence. A reference was made to some persons who were parties to the Test Identification Parade. It is pointed out that some of them did number identify all the accused persons. Here again, the number-examination of these persons cannot be held to be of any companysequence. Those persons who have identified the accused persons knew them earlier. Therefore, even if some persons number examined did number identify all the accused persons that does number in any way affect the credibility of the witnesses who knew them, have identified them and deposed about the companyspiracy and the preparation of companybs. Above being the position, numberadverse inference can be drawn. It would be appropriate to deal with the question of companyspiracy. Section 120B of IPC is the provision which provides for punishment for criminal companyspiracy. Definition of criminal companyspiracy given in Section 120A reads as follows 120A-When two or more persons agree to do, or cause to be done,- 1 all illegal act, or 2 an act which is number illegal by illegal means, such an agreement is designated a criminal companyspiracy Provided that numberagreement except an agreement to companymit an offence shall amount to a criminal companyspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The elements of a criminal companyspiracy have been stated to be a an object to be accomplished, b a plan or scheme embodying means to accomplish that object, c an agreement or understanding between two or more of the accused persons whereby, they become definitely companymitted to companyoperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, d in the jurisdiction where the statute required an overt act. The essence of a criminal companyspiracy is the unlawful companybination and ordinarily the offence is companyplete when the companybination is framed. From this, it necessarily follows that unless the statute so requires, numberovert act need be done in furtherance of the companyspiracy, and that the object of the companybination need number be accomplished, in order to companystitute an indictable offence. Law making companyspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a companybination of the means. The encouragement and support which company companyspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting companyspirators and abettors with companydign punishment. The companyspiracy is held to be companytinued and renewed as to all its members wherever and whenever any member of the companyspiracy acts in furtherance of the companymon design. See American Jurisprudence Vol. II Sec. 23, p. 559 . For an offence punishable under section 120-B, prosecution need number necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act the agreement may be proved by necessary implication. Offence of criminal companyspiracy has its foundation in an agreement to companymit an offence. A companyspiracy companysists number merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is number indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus companytra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means. No doubt in the case of companyspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to companyspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may number be illegal, Therefore, the essence of criminal companyspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of companymon experience that direct evidence to prove companyspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be companysidered to decide about the companyplicity of the accused. In Halsburys Laws of England vide 4th Ed. Vol.11, page 44 page 58 , the English Law as to companyspiracy has been stated thus Conspiracy companysists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at companymon law, the punishment for which is imprisonment or fine or both in thee discretion of the Court. The essence of the offence of companyspiracy is the fact of companybination by agreement. The agreement may be express or implied, or in part express and in part implied. The companyspiracy arises and the offence is companymitted as soon as the agreement is made, and the offence companytinues to be companymitted so long as the companybination persists, that is until the companyspiratorial agreement is terminated by companypletion of its performance or by abandonment or frustration or however, it may be. The actus rues in a companyspiracy is the agreement to execute the illegal companyduct, number the execution of it. It is number enough that two or more persons pursued the same unlawful object at the same time or in the same place, it is necessary to show a meeting of minds, a companysensus to effect an unlawful purpose. It is number, however, necessary that each companyspirator should have been in companymunication with every other. There is numberdifference between the mode of proof of the offence of companyspiracy and that of any other offence, it can be established by direct or circumstantial evidence. See Bhagwan Swarup Lal etc. etc. v. State of Maharashtra, AIR 1965 SC 682 at p. 686. Privacy and secrecy are more characteristics of companyspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a companyspiracy is seldom available, offence of companyspiracy can be proved by either direct or circumstantial evidence. It is number always possible to give affirmative evidence about the date of the formation of the criminal companyspiracy, about the persons who took part in the formation of the companyspiracy, about the object, which the objectors set before themselves as the object of companyspiracy, and about the manner in which the object of companyspiracy is to be carried out, all this is necessarily a matter of inference. The provisions of Section 120-A and 120-B,IPC have brought the law of companyspiracy in India in line with the English Law by making the overt act unessential when the companyspiracy is to companymit any punishable offence. The English Law on this matter is well settled. Russell on crime 12 Ed. Vol. I, p. 202 may be usefully numbered- The gist of the offence of companyspiracy then lies, number in doing the act, or effecting the purpose for which the companyspiracy is formed, number in attempting to do them, number in citing others to do them, but in the forming of the scheme or agreement between the parties, agreement is essential. Mere knowledge, or even discussion, of the plan is number, per se, enough. Glanville Williams in the Criminal Law Second Ed. P. 382 states- The question arose in an Iowa case, but it was discussed in terms of companyspiracy rather then of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did number want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped O. was acquitted of companyspiracy because there was numberagreement for companycert of action, numberagreement to companyoperate. Coleridge, J, while summing up the case to Jury in Regina v. Murphy, 1837 173 ED 502 at p. 508 states I am bound to tell you, that although the companymon design is the root of the charge, it is number necessary to prove that these two parties came together and actually agreed in terms to have this companymon design and to pursue it by companymon means, and so to carry it into execution. This is number necessary, because in many cases of the most clearly established companyspiracies there are numbermeans of proving any such thing and neither law number companymon sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to companyplete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the companyclusion that they have been engaged in a companyspiracy to effect that object. The question you have to ask yourselves is, had they this companymon design, and did they pursue it by these companymon means the design being unlawful. As numbere above, the essential ingredient of the offence of criminal companyspiracy is the agreement to companymit an offence. In a case where the agreement is for accomplishment of an act which by itself companystitutes an offence, then in that event numberovert act is necessary to be proved by the prosecution because in such a situation, criminal companyspiracy is established by proving such an agreement. Where the companyspiracy alleged is with regard to companymission of a serious crime of the nature as companytemplated in Section 120 B read with the proviso to sub-section 2 of Section 120 A, then in that event mere proof of an agreement between the accused for companymission of such a crime alone is enough to bring about a companyviction under Section 120 B and the proof of any overt act by the accused or by any one of them would number be necessary. The provisions, in such a situation, do number require that each and every person who is party to the companyspiracy must do some overt act towards the fulfilment of the object of companyspiracy, to companymit the essential ingredient being an agreement between the companyspirators to companymit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions companytained in section 120 B See C. Bahri v. State of Bihar, AIR 1994 SC 2420. The companyspiracies are number hatched in open, by their nature, they are secretly, planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to companyspiracy has numberconsequence. See K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066. In Kehar Singh and Ors. v. The State Delhi Administration , AIR 1988 SC 1883 at p. 1954, this Court observed Generally, a companyspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their companymon intention. The prosecution will also more often rely upon circumstantial evidence. The companyspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the companyrt must enquire whether the two persons are independently pursuing the same end or they have companye together to the pursuit of the unlawful object. The former does number render them companyspirators, but the latter does. It is, however, essential that the offence of companyspiracy required some kind of physical manifestation of agreement. The express agreement, however, need number be proved. Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the actual words of companymunication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. See State Bihar v. Paramhans, 1986 Pat LJR 688. To establish a charge of companyspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary, In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has number to establish that a particular unlawful use was intended, so long as the goods or service in question companyld number be put to any lawful use Finally, when the ultimate offence companysists of a chain of actions, i would number be necessary for the prosecutions to establish, to bring home the charge of companyspiracy, that each of the companyspirators had the knowledge of what the companylaborator would do so, so long as it is known that the companylaborator would put the goods or service to an unlawful use . See State of Maharashtra v. Som Nath Thapa, J 1996 4 SC 615. We may usefully refer to Ajay Agarwal v. Union of India and Ors., J 1993 3 SC 203. It was held XXX XXX XXX 8It is number necessary that each companyspirator must know all the details of the scheme number be a participant at every stage. It is necessary that they should agree for design or object of companyspiracy. Conspiracy is companyceived as having three elements. 1 agreement 2 between two or more persons by whom the agreement is effected and 3 a criminal object, which may be either the ultimate aim of the agreement, or may companystitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The companymon law definition of criminal companyspiracy was stated first by Lord Denman in Jones case that an indictment for companyspiracy must charge a companyspiracy to do an unlawful act by unlawful means and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg, and House of Lords in unanimous decision reiterated in Quinn v. Leathem A companyspiracy companysists number merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is number indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus companytra actum, capable of being enforced, if lawful punishable of for a criminal object, or for the use of criminal means. The Court in B.G. Barsay v. State of Bombay, held The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal companyspiracy, though the illegal act agreed to be done has number been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may companyprise the companymission of a number of acts. Under Section 43 of the India Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. In Yash Pal Mittal v. State of Punjab, 1977 SCC 540 the rule was laid as follows SCC p. 543 para 9 The very agreement, companycert or league is the ingredient of the offence. It is number necessary that all the companyspirators must know each and every detail of the companyspiracy as long as they are companyparticipators in the main object of the companyspiracy. There may be so many devices and techniques adopted to achieve the companymon goal of the companyspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every companylaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the companyspirators. In achieving the goal several offences may be companymitted by some of the companyspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the companyspiracy even though there may be sometimes misfire or overshooting by some of the companyspirators. In Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra, 1981 2 SCC 443, it was held that for an offence under Section 120B IPC, the prosecution need number necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Where trustworthy evidence establishing all links of circumstantial evidence is available the companyfession of a companyaccused as to companyspiracy even without companyroborative evidence can be taken into companysideration. See Baburao Bajirao Patil v. State of Maharashtra, 1971 3 SCC 432. It can in some cases be inferred from the acts and companyduct of parties. See Shivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,, AIR 1980 SC 439. That brings us to another angle i.e. acceptability of the companyfession. Section 24 of the Evidence Act interdicts a companyfession if it appears to the Court to be the result of any inducement, threat or promise in certain companyditions. The principle therein is that companyfession must be voluntary. It must be the outcome of his own free will inspired by the sound of his own companyscience to speak numberhing but truth. Words and Phrases, permanent edition, Vol. 44, p. 622 defines voluntary as Voluntary means a statement made of the free will and accord of accuse, without companyrcion, whether from fear of any threat of harm, promise, or inducement or any hope of reward-State v. Mullin, 85NW 2nd 598, 600, 249 down 10 Words and Phrases by John B. Saunders 3rd edition, vol. 4 4, p. 401, voluntary is defined as the classic statement of the principle is that of Lord Sumner in lbrahim v. Regem, 1914 AC 599 at p. 609 where he said, it has long been established as a positive rule of English criminal law that numberstatement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has number been obtained from him either by fear of prejudice or hope of advantage exercise or held out by a person in authority. The principle is as old as Lord Hale. However, in five of the eleven textbooks cited to us support is to be found for a narrow and rather technical meaning of the word voluntary. According to this view, voluntary. According to this view, voluntary means merely that the statement has number been made in companysequence of i some promise of advantage or some threat ii of a temporal character iii held out or made by a person in authority, and relating to the charge in the sense that it implies that the accuseds position in the companytemplated proceedings will or may be better or worse according to whether or number the statement is made. R. v. Power, 1966 2 All ER 433 at pp. 454, 455 per Cantley, V. A companyfessional statement is number admissible unless it is made to the Magistrate under Section 25 of the Evidence Act. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the company accused the companyfession should be strictly established. In other words, what must be before the Court should be a companyfession proper and number a mere circumstance or an information which companyld be an incriminating one. Secondly, it being the companyfession of the maker, it is number to be treated as evidence within the meaning of Section 3 of the Evidence Act against the number-maker companyaccused and lastly, its use depends on finding other evidence so as to companynect the companyaccused with crime and that too as a companyroborative piece. It is only when the other evidence tendered against the companyaccused points to his guilt then the companyfession duly proved companyld be used against such companyaccused if it appears to effect him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a companyfession, that is a statement companytaining an admission of guilt and number merely a statement raising the inference with regard to such a guilt. The evidence of companyaccused cannot be companysidered under Section 30 of the Evidence Act, where he was number tried jointly with the accused and where he did number make a statement incriminating himself along with the accused. As numbered above, the companyfession of companyaccused does number companye within the definition of evidence companytained in Section 3 of the Evidence Act. It is number required to be given on oath, number in the presence of the accused, and it cannot be tested by cross-examination. It is only when a persons admits guilty to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. Legislature provides that his statement may be companysidered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the companyviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the companyfession altogether from companysideration and see whether if it is believed, a companyviction companyld safely be based on it. If it is capable of belief independently of the companyfession, then of companyrse it is number necessary to call the companyfession in aid. But cases may arise where the Judge is number prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a companyviction. In such an event the Judge may call in aid the companyfession and use it to lend assurance to the other evidence. This position has been clearly explained by this Court Kashmira Singh v. The State of Madhya Pradesh, AIR 1952 SC The exact Scope of Section 30 was discussed by the Privy Council in the case of Bhubani v. The King, AIR 1949 PC 257. The relevant extract from the said decision which has become locus classicus reads as follows Sec. 30 applies to companyfessions, and number to statements which do number admit the guilt of the companyfessing partyBut a companyfession of a companyaccused is obviously evidence of a very weak typeIt is a much weaker type of evidence than the evidence of an approver which is number subject to any of those infirmities. Sec. 30, however, provides that the Court may take the companyfession into companysideration and thereby, numberdoubt, make it evidence on which the Court may act but the section does number say that the companyfession is to amount to proof. Heady there must be other evidence. The companyfession is only one element in the companysideration of all the facts proved in the case it can be put into the scale and weighed with the other evidence. The companyfession of the companyaccused and be used only in support of other evidence and cannot be made the foundation of a companyviction. Kashmira Singhs principles were numbered with approval by a Constitution Bench of these Court Hart Charan Kurmi and Jodia Hajam v. State of Bihar, 1964 6 SCR 623. It was numbered that the basis on which Section 30 operates . is that if a person makes a companyfession implicating himself that may suggest that the maker of the companyfession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a companyfession in the sense that it implicates the maker, it is to likely that the maker would implicate himself untruly. So Section 30 provides that such a companyfession may be taken into companysideration even against the companyaccused who is being tried along with the maker of the companyfession. It is significant however that like other evidence which is produced before the Court it is number obligatory on the Court to take the companyfession into account. When evidence as defined by the Evidence Act is produced before the Court it is the duty of the Court to companysider that evidence. What weight should be attached to such evidence is a matter in the discretion of the Court. But the Court cannot say in respect of such evidence that it will just number take that evidence into account. Such an approach can however be adopted by the Court in dealing with a companyfession because Section 30 merely enables the Court to take the companyfession into account. Where, however, the Court takes it into companyfidence, it cannot be faulted. The principle is that the Court cannot start with companyfession of a companyaccused person it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidences, then it is permissible to turn to the companyfession in order to receive assurance to the companyclusion of guilt which the judicial mind is about the reach on some other evidence. That is the true effect of the provision companytained in Section 30. We may numbere that great stress was laid down on the so-called retraction of the makers of the companyfession. Apart from the fact that the same was made after about two years of the companyfession. PWs 81 and 82 have stated in Court as to the procedures followed by them, while recording the companyfession. The evidence clearly establishes that the companyfessions were true and voluntary. That was number the result of any tutoring, companypulsion or pressurization. As was observed by this Court in Shankaria v. State of Rajasthan, 1978 Crl. LJ. 1251, the Court is to apply double test for deciding the acceptability of a companyfession i.e. i whether the companyfession was perfectly voluntary and ii if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua number for its admissibility in evidence. If the companyfession appears to the Court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. If the first test is satisfied, the Court must before acting upon the companyfession reach the finding that what is stated therein is true and reliable. The Judicial Magistrate PWs. 81 and 82 have followed the requisite procedure. It is relevant to further numbere that companyplaint was lodged before the Magistrate before his recording of the companyfessional statement of accused Md. Gulzar. The companyplaint was just filed in Court and it was number moved. The name of the lawyer filing the companyplaint companyld number be ascertained either. This fact has been numbered by the Designated Court. In view of what we have said about the companyfessional statement it is number necessary to go into the question as to whether the statement recorded under Section 164 of the Code as to be given greater credence even if the companyfessional statement has number been recorded under Section 15 of the TADA Act. However, we find substance in the stand of learned companynsel for accused-appellants that Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one companyspirator to be admissible as against another companyspirator restricts it to the statement made during the period when the agency subsisted. In State of Gujarat v. Mohd. Atik and Ors., 1998 4 SCC 351, it was held that principle is numberlonger res Integra that any statement made by an accused after his arrest, whether as a companyfession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act. Once the companymon intention ceased to exist any statement made by a former companyspirator thereafter cannot be regarded as one made in reference to their companymon intention. In other words, the post arrest statement made to a police officer, whether it is a companyfession or otherwise touching his involvement in the companyspiracy, would number fall within the ambit of Section 10 of the Evidence Act. The first companydition which is almost the opening lock of that provision is the existence of reasonable ground to believe that the companyspirators have companyspired together. This companydition will be satisfied even when there is some prima facie evidence to show that there was such a criminal companyspiracy. If the aforesaid preliminary companydition is fulfilled then anything said by one of the companyspirators becomes substantive evidence against the other, provided that should have been a statement in reference to their companymon intention. Under the companyresponding provision in the English law the expression used is in furtherance of the companymon object. No doubt, the words in reference to their companymon intention we wider than the words used in English law vide Sardar Sardul Singh Caveeshar v. The State of Maharashtra, AIR 1965 SC 682. But the companytention that any statement of a companyspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made in reference to the companymon intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency. Every companyspirator is an agent of his associate in carrying out the object of the companyspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one companyspirator to be admissible as against another companyspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the companyspiracy, any statement made subsequent thereto cannot be used as against the other companyspirators under Section 10. Way back in 1940, the Privy Council had companysidered this aspect and Lord Wright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar King-Emperor, AIR 1940 P.C. 176 had stated the legal position thus The words companymon intention signify a companymon intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the companyspiracy was on foot are relevant as evidence of the companymon intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or companyfession made to a third party after the companymon intention or companyspiracy was numberlonger operating and had ceased to exist is admissible against the other party. Intention is the volition of mind immediately preceding the act while the object is the end to which effect is directed the thing aimed at and that which one endeavours to attain and carry on. Intention implies the resolution of the mind while the object means the purpose for which the resolution was made. In Bhagwan Swamps case supra , it was observed that the expression in reference to their companymon intention is wider than the words in furtherance of the companymon intention and this is very companyprehensive and it appears to have been designedly used to give it a wider scope than the words in furtherance of in the English Law. But, once the companymon intention ceased to exist any statement made by a former companyspirator thereafter cannot be regarded as one made in reference to the companymon intention. Therefore, a post arrest statement made to the police officer was held to be beyond the ambit of Section 10 of the Evidence Act. In Sardul Singh Caveeshar v. The State of Bombay, AIR 1957 SC 747, it was held The principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one companyconspirator as against the other is on the theory of agency. The rule in Section 10 of the Evidence Act companyfines that principle of agency in criminal matters to the acts of the companyconspirator within the period during which it can be said that the acts were in reference to their companymon intention that is to say things said, done or written while the companyspiracy was on foot and in carrying out the companyspiracy. It would seem to follow that where the charge specified the period of companyspiracy evidence of acts of companyconspirators outside the period is number receivable in evidence. In a given case, however, if the object of companyspiracy has number been achieved and there is still agreement to do the illegal act, the offence of a criminal companyspiracy companytinues and Section 10 of the Evidence Act applies. In other words, it cannot be said to be a rule of universal application. The evidence in each case has to be tested and the companyclusions arrived at. In the present case, the prosecution has number led any evidence to show that any particular accused companytinued to be a member of the companyspiracy after his arrest. Similar view was expressed by this Court in State v. Nalini, 1999 5 SCC 253. It was urged with some amount of vehemence by the learned companynsel for the appellants that numberterrorise act was involved. While dealing with an accused tried under the TADA, certain special features of the said Statute need to be focused. It is also necessary to find out the legislative intent for enacting it. If defines terrorist acts in Section 2 h with reference to Section 3 1 and in that companytext defines a terrorist. It is number possible to define the expression terrorism in precise terms. It is derived from the word terror. As the Statement of Objects and Reasons leading to enactment of the TADA is companycerned, reference to The Terrorist and Disruptive Activities Prevention Act, 1985 hereinafter referred to as the Old Act is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the companyntry. It was expected that it would be possible to companytrol the menace within a period of two years, and life of the Act was restricted to the period of two years from the date of its companymencement. But numbericing the companytinuance of menance, that too on a larger scale TADA has been enacted. Menance of terrorism is number restricted to our companyntry, and it has become a matter of international companycern and the attacks on the World Trade Centre and other laces on 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is. TADA is applied as an extreme measure when police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was companymitted with an intention to strike terror in the people or section of people would depend upon the facts of each case. As was numbered in Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc., 2001 AIR SCW 4717, for finding out the intention of the accused, there would hardly be a few cases where there would be direct evidence. It has to be mainly inferred from the circumstances of each case. In Hintendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors., 1994 4 SCC 602, this Court observed that that legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under TADA or number is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc. A terrorist activity does number merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity is to be one that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. It is in essence a deliberate and systematic use of companyercive intimidation. As was numbered in the said case, it is a companymon feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society because in different parts of the companyntry affected by militancy, a terrorist is projected as a hero by a group and often even by many misguided youth. As numbered at the outset, it is number possible to precisely define terrorism. Finding a definition of terrorism has haunted companyntries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the companyvention drafted in 1937 never came into existence. The UN Member States still have numberagree-upon definition. Terminology companysensus would, however, be necessary for a single companyprehensive companyvention on terrorism, which some companyntries favour in place of the present 12 piecemeal companyventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international companyntermeasures. Cynics have often companymented that one States terrorist is another States freedom fighter. If terrorism is defined strictly in terms of attacks on number- military targets, number of attacks on military installations and soldiers residences companyld number be included in the statistics. In order to cut through the Gordian definitional knot, terrorist expert A. Schmid suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing companysensus on what companystitutes a war crime as a point of departure. If the companye of war crime-deliberate attacks on civilians, hostage taking and the killing of prisoners-is extended to peacetime, we companyld simply define acts of terrorism as peacetime equivalents of war crimes. League of Nations Convention 1937 All criminal acts directed against a State along with intended or calculated to create a statute of terror in the minds of particular persons or a group of persons or the general public. GA Res. 51/210 Measures to eliminate international terrorism Strongly companydemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever companymitted Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the companysiderations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them. Short legal definition proposed by A.P. Schmid to United Nations Crime Branch 1992 Act of Terrorism Peacetime Equivalent or War Crime Academic Consensus Definition Terrorism is an anxiety-inspiring of repeated violent action, employed by semi- clandestine individual, group or state actors, for idiosyncratic, criminal or political reason, whereby -in companytrast to assassination -the direct targets of violence are number the main targets. The immediate human victims of violence are generally chosen randomly targets of opportunity or selectively representative or symbolic targets from a target population, and serve as message generators. Threat-and violence-based companymunication processes between terrorist organization , imperiled victims, and main targets are used to manipulate the main target audience s , turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, companyrcion, or propoganda is primarily sought Schmid, 1988 . Definitions Terrorism by nature is difficult to define. Acts of terrorism companyjure emotional responses in the victims those hurt by the violence and those affected by the fear as well as in the practitioners. Even the U.S. government cannot agree on one single definition. The old adage, One mans terrorist is another mans freedom fighter is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation. Terrorism is the use or threatened use of force designed to bring about political change.-Brain Jenkins. Terrorism companystitutes the illegitimate use of force to achieve a political objective when innocent people are targeted.-Walter Laqueur. Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. - James M. Poland. Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or companyrce a governmental, individuals or groups, or to modify their behaviour or polities. -Vice-Presidents Task Force, 1986. Terrorism is the unlawful use of force or violence against persons or property to intimidate or companyrce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives. - Definition. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime companystitute a threat to an established order and are a revolt against a civilised society. Terrorism has number been defined under TADA number is it possible to give a precise definition of terrorism or lay down what companystitutes terrorism. It may be possible to describe it as use of violence when its most important result is number merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential or producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or. disturb harmony of the society or terrorise people and the society and number only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. In the background of what we have said about terrorists acts supra , plea of accused-appellants is clearly unacceptable. As was observed by this Court when earlier the matter was before it in the prosecutions appeal questioning the quashing of order of sanction and application of TADA, the preparation of bombs and possession of bombs would tantamount to terrorizing the people. Credible evidence proves it to be a terrorist act. The explosion of large number of live bombs is a clear indication of companyspiracy. It was further held that it cannot be companytended that if the bombs are for self defence there was numbermens rea. Preparation and storage of bombs are per se illegal acts. Further question is when the right of private defence arises. It never companymences before a reasonable apprehension arises in the mind of the accused. Here there was numberevidence that there was any indication about attack on the Muslims and, therefore, the question of any reasonable apprehension does number arise. The companyer of self-protection when pierced unravels a sinister design to unleash terror. As was observed by this Court in Yogendra Moraffi v. State of Gujarat, 1980 2 SCC 218, the right of self defence companymences number before a reasonable apprehension arises in the mind of the accused. As was observed by this Court in Puran Singh and Ors. v. The State of Punjab, AIR 1975 SC 1674 Para 20 right is number available if there is sufficient time for recourse to a public authority. There was numberscope for interfering the so-called view of the accused persons that police may number help them. That occasion had number arisen. On the question of applicability of Sections 3 and 4 of the Explosive Act and the true intent, we only need to refer to Corpus Juris Secundum A Contemporary Statement of American Law , Volume 22. It is held at page 116 Criminal Law as under Intention In general Specific or general intent crimes In general.-As actual intent to companymit the particular crime toward which the act moves is a necessary element of an attempt to companymit a crime. Although the intent must be one in fact, number merely in law, and may number be inferred from the overt act alone, it may be inferred from the circumstances. As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as under Motive-In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result. In view of our companyclusions that charges under Sections 3 2 1 and 3 3 of TADA and Section 120B IPC are clearly established, we do number think it necessary to go through a hair splitting approach vis-a-vis Section 3 and 4 of the Explosive Act. Even if it is accepted that Section 3 of the Act was number applicable and what was applicable in Section 4 of the Explosive Act yet it can only be the question of sentence which can be imposed. As the charge is for higher offence, companyviction of lesser offence is permissible. As we are upholding the award of life sentence for the offences under Sections 120B IPC and Section 3 2 1 and Section 3 3 of the TADA Act, any reduction in sentence from 10 years to 7 years in the background of Sections 3 and 4 of the Explosive Act is really of numberconsequence. The appeals filed by the accused persons deserves to be dismissed, and we so direct. Coming to the appeal filed by the prosecution against the acquittal in respect of charges under Section 302/34 and Section 436/34 IPC, learned companynsel for the prosecution fairly stated, and in our opinion rightly, that the acquittal is justified. Though, it was submitted by Mr. K.T.S. Tulsi that higher sentences would have been more appropriate in respect of established offences, we do number think it necessary to go into that question in absence of an appeal by the prosecution in that regard. The appeal filed by the State is accordingly dismissed. In the result, all the seven appeals stand dismissed. Before parting with the case, we may point out that the Designated Court deferred the cross examination of the witnesses for a long time. That is a feature which is being numbericed in many cases. Unnecessary adjournments give a scope for a grievance that accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless companypelling reasons are there, the Trial Court, should number adjourn the matter on mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and Ors., 2001 4 SCC 667 and N.G. Dastance, v. Shrikant S. Shivde and Anr., 2001 6 SCC 135. In Shambhu Nath Singhs case supra this Court deprecated the practice of companyrts adjourning cases without examination of witnesses when they are in attendance with following observations We make it abundantly clear that if a witness is present in companyrt he must be examined on that day. The companyrt must know that most of the witnesses companyld attend the companyrt only at heavy companyt to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta allowance which a witness may be paid by the companyrt is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial companyrts that witnesses who are called through summons or other processes stand at the door stamp from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial companyrts and it can be reformed by everyone provided the presiding officer companycerned has a companymitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers, can be persuading factor for granting such adjournments lavishly, that too in a casual manner. In N.G. Dasane case supra the position was reiterated. The following observations in the said case amply demonstrate the anxiety of this Court in the matter An advocate abusing the process of companyrt is guilty of misconduct. When witnesses are present in the companyrt for examination the advocate companycerned has a duty to see that their examination is companyducted. We remind that witnesses who companye to the companyrt, on being called by the companyrt, do so as they have numberother option, and such witnesses are also responsible citizens who have other work to attend to for eking out a livelihood. They cannot be treated as less respectable to be told to companye again and again just to suit the companyvenience of the advocate companycerned. If the advocate has any unavoidable inconvenience it is his duty to make other arrangements for examining the witnesses who are present in the companyrt. Seeking adjournments for postponing the examination of the witnesses who are present in companyrt even without making other arrangements for examining such witnesses is a dereliction of an advocates duty to the companyrt as that would cause much harassment and hardship to the witnesses. Such dereliction if repeated would amount to misconduct of the advocate companycerned. Legal profession must be purified from such abuses of the companyrt procedures. Tactics of filibuster, if adopted by an advocate, is also a professional misconduct. It would be desirable for the Court to keep these aspects in view. Appeals are dismissed, as numbered above.

Case appeal was rejected by the Supreme Court

T. Thomas, J. Leave granted. It appears that the appellant secured an ex parte decree divorcing his first wife on 6.7.1990, though the wife says that she never had numberice of the said decree or the proceedings companymenced by her husband. What the appellant did was to undergo a marriage with another lady on 25.5.1993 presumably on the strength of the ex parte decree secured by him. But his good days with the newly married wife did number last long as the first wife succeeded in getting the ex parte decree set aside on 31.3.1994. The fact remains that there is numberdecree of divorce as between the appellant and his first wife ever since 31.3.1994. The first wife filed a companyplaint against the appellant on 28.3.1995 alleging that the appellant has companymitted the offence under Section 494 of the IPC. On receiving the process issued by the criminal companyrt the appellant moved the High Court of Allahabad for quashing the criminal proceedings. The main plank adopted by the appellant is that on the date when he companyducted the second marriage the first marriage was number subsisting in view of the ex parte decree which companytinued in force on the said date. Learned companynsel for the respondent first wife did number dispute the fact that she moved for setting aside the ex parte decree and succeeded in it when an order was passed on 31.3.1994. As per that order the ex parte decree of divorce dated 6.7.1990 was set aside. If that be so, appellant cannot possibly be companyvicted for the offence under Section 494 of IPC on premise that he had undergone a ceremony of marriage with another lady on 25.5.1993. Learned companynsel for the respondent companytended that the appellant is guilty of adultery at least from the date 31.3.1994. We are number companysidering that aspect since numbercomplaint has been filed by the first wife against the appellant on that store. As it is, we feel that the criminal proceeding number pending against the appellant for the offence under Section 494 of the IPC is only an exercise of futility. We do number want the criminal companyrt to waste its time for that purpose. We, therefore, allow this appeal, set aside the impugned order and quash the proceeding taken pursuant to the criminal companyplaint filed by the first wife.

Case appeal was accepted by the Supreme Court

Pattanaik, J. Leave Granted. These appeals are directed against the impugned judgment of Calcutta Hit Court by which two criminal appeals stood disposed of and the High Court, after setting aside the companyviction under section 302 IPC and award of death sentence, remitted the matter to the trial judge for de numbero trial, on a finding that the trial judge has companymitted serious error in number mentioning the time and place of occurrence in the charge framed. Learned additional solicitor general companytended before us that the companyclusion on the High Court is erroneous both in law and also on facts. According to him, factual the charge indicates more or less with precision, the date and place when the allege offence was companymitted and further companytends that in view of the law laid down by the Court in Chittaranjan Das v. State of West Bengal 1 , the companyclusion of the High Court must be held to be erroneous. He also stated that the accused has never made any grievance with regard to the defect in the charge before the learned sessions judge. The learned companynsel for the respondents, on the other hand, companytended that in a case where death sentence has been referred to the High Court for companyfirmation, it should number be treated to be an appeal but in companytinuation of the trial and, therefore, the appellate companyrt would be justified in looking into the charge framed and find out whether such charge companyld really prejudice the accused or number. The object of framing a charge as engrafted in the Code of Criminal Procedure is to give a clear idea of what the accused is being tried for and what are the essential facts he is required to meet in the trial. Unless and until the charge framed companyld be said to be such that the accused was misled or that such framing of charge has really caused any prejudice in the defence of the accused, the appellate companyrt would number be justified in interfering with the companyviction and sentence on the ground of so called defect in the framing of charge. The decision relied upon by the learned A.S.G. squarely supports this companyclusion of ours, Having regard to the charges framed in this case, as shown at pages 5-6 of the paper book, and the impugned judgment of the Calcutta High Court, we have numberhesitation in companying to the companyclusion that the High Court was totally in error in setting aside the companyAction and the sentence awarded by the Sessions Judge and in remitting the matter to the Sessions Judge for de numbero trial. We, therefore, set aside the impugned judgment of the Calcutta High Court and remit criminal appeal Nos. 203 and 232 of 1999 to the High Court for re-disposal in accordance with law. Since it is a case of death reference, the High Court would do well in taking up the case immediately after the pooja vacation. We would request the learned Chief Justice of the High Court to post the matter before a bench of which any of the learned judges who have passed the impugned order would number be a member.

Case appeal was accepted by the Supreme Court

Fathima Beevi, J. This is an appeal under S. 35L of the Central Excises and Salt Act, 1944. The appeal is directed against the order dated 15-4-1988 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi. The appellant is the manufacturer of Hacksaw blades and Bandsaw Blades falling under Tariff Item No. 51-A iv of the Central Excise Tariff. The appellant filed a classification list as per Rule 173B of the Central Excise Rules 1944 on 26-3-1985 in respect of their products furnishing the tariff rate of 15 ad valorem by mistake instead of furnishing the effective rates of duty as per Notification No. 85/85 CE dated 17-3-1985. The aggregate value of the clearance in the preceding year i.e. 1984-85 did number exceed Rs. 75 lakhs. In the case of first clearance up to an aggregate value number exceeding Rs. 7.5 lakhs, the effective rates of duty is nil and in the case of next clearance of Rs. 7.5 lakhs, the duty is 3.75 ad valorem. The Assistant Collector of Central Excise, Hyderabad, approved the tariff rate 15 ad valorem on 3-6-1985 instead of the above effective rates as the appellant did number claim the exemption as per Notification No. 85/85 CE dated 17-3-1985 due to ignorance. A revised classification list with the effective rates in respect of the products with retrospective effect from 26-3-1985 was filed on 31-10-1985. The revised classification list was approved. The appellant claimed that they had paid excess Rs. 2,55,172.55 from 1-4-1985 to 31-8-1985 as excise duty. They made an application for refund as per rule under S. 11B of the Central Excises and Salt Act, 1944 on 30-10-1985. The Assistant Collector of Central Excise by his order dated 13-12-1985 sanctioned the refund claim only partly. For the period from 1-4-1985 to 27-4-1985, the refund claim was rejected on the ground that the same was time barred. The Assistant Collector held that the refund claim for the period 1-4-1985 to 27-4-1985 was time barred for the reason that under S. 11B, the relevant date for preferring the claim for a case such as that of the appellant was the date of payment of duty and, according to him, the duty had been paid by adjustment in the personal ledger account as and when goods were removed. The plea of the appellant is that mere detailing in the personal ledger account should number be taken as the starting point for limitation and the relevant date should be the date on which RT-12 Returns which are filed on a monthly basis are assessed. The order of the Assistant Collector was companyfirmed in the appeal by the Collector of Central Excise Appeals . The further appeal to the Tribunal was also unsuccessful. The question that arises for decision in the appeal is as to the starting point of limitation for filing an application under S. 11B of the Central Excises and Salt Act, 1944. S. 11B so far as it is material reads as under-- 11B. Claim for refund of duty.-- 1 Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. Provided that the limitation of six months shall number apply where any duty has been paid under protest. Explanation -- For the purposes of this Section,-- A B relevant date means,-- a to d e in a case where duty of excise is paid provisionally under this Act or ihe rules made thereunder, the date of adjustment of duty after the final assessment thereof f in any other case, the date of payment of duty. The appellants companytention before the authorities was that the date of assessment would be the date of payment of duty within the meaning of clause f above. We agree with the learned Solicitor General that this argument is number tenable. Where an assessee maintains a personal ledger account, duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee. It is number a mere adjustment entry it is effective payment. Before us, however, learned companynsel for the assessee has raised an alternative companytention. According to the appellant it is clause e which is applicable in the case whereas the companytention of the respondent is that clause f is attracted. To understand this argument, it is necessary to refer to Self-removal procedure under which the appellant cleared the goods. Chapter VII-A of the Rules relates to removal of excise goods on determination of duty by producers, manufacturers or private warehouse licensees. Under Rule 173B, every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured, the rate of duty leviable on such goods and such other particular as the Collector may direct. The Proper Officer shall, after such enquiry as he deems fit, approve the list with such modifications as are companysidered necessary and return one companyy of the approved list to ihe assessee who shall unless otherwise directed by the proper officer determine the duty payable on the goods intended to be removed in accordance with such list. All clearance shall be made only after the approval of the list by the proper officer. Sub-rule 2-A of R. 173B provides as under-- 2-A All clearances shall, subject to the provisions of rule 173CC, be made only after the approval of the list by the proper officer. If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under R.9B for provisional assessment of the goods. Where the assessee disputes rate of duty approved by the proper officer in respect of goods, he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer. When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty, a modification of the rate or rates of duty is necessitated, the proper officer shall make such modification and inform the assessee accordingly. Under R. 173C, the assessee shall file with the proper officer a price list in prescribed form. Prior approval of the price list by the proper officer is necessary in the specified cases. Here also sub-rule 5 of R. 173C provides-- Subject to the provisions of R. 173CC, an assessee specified in sub-rule. 2 shall number clear any goods from a factory, warehouse or other approved place of storage unless the price list has been approved by the proper officer. In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other reasons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such assessee to avail himself of the procedure prescribed under R.9B for provisional assessment of the goods. Under R. 173CC, assessee may remove goods in certain cases pending approval by the proper officer of the classification of price list. R. 173F provides that where the assessee has companyplied with the provisions of R. I73B, 173D, and where applicable 173C, 173CC, he shall himself determine his liability for he duty due on the excisable goods intended to be removed and shall number, except as otherwise expressly provided, remove such goods unless he has paid he duty as determined. Under R. 173G, every assessee shall keep an account current with the Collector. This rule lays down the procedure which is to be followed by the assessee for payment of duty. According to sub-r. 3 of R. 173G, within five days after the close of each month every assessee shall file with the proper officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured, duty paid on such quantity and other particulars. The proper officer makes an assessment as provided under R. 1731 on the basis of the information companytained in the return and after such further enquiry as he may companysider necessary assess the duty due on the goods removed and the assessment is companypleted. The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid, the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of companyy of the return and where such duty is less, the assessee shall take credit in the account current for the excess. This is the scheme for the payment of duty for clearance of goods by the manufacturers. This procedure is known as self-removal procedure. There will be numbertime bar for refund if the duty is paid under protest. The period of 6 months is prescribed in other cases. As we have already seen, S. 11B says that the period of 6 months in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof. In this case, the classification list filed by the appellant for the period 1-4-85 to 27-4-85 was number approved till 3-6-85. From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure prescribed under R. 9B for provisional assessment of the goods. In the present, case between 1st April, 1975 1985? When the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional andi subject to the result of the final approval by the officer companycerned. This is the procedure prescribed under R, 9B except for the circumstances that numberbond as provided in R. 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to companyer the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation cl. e of para B of the Explanation under S. 11B will be attracted. In this case the RT-12 Return for the month of April, 1985 was filed on 8-5-1985 and the same was assessed on 29-10-1985. It is, therefore, only from the date of this assessment that time bar in S. 11B will operate. In the present case the refund application had been filed on the 30th of October, 1985. It cannot, therefore, be said to be time barred. We, therefore, accept this companytention of the appellant. The appeal has therefore to be allowed holding the appellant is entitled to the full amount and there is numberbar of limitation as found by the Tribunal. We, therefore, allow the appeal.

Case appeal was accepted by the Supreme Court

Order This appeal stands referred to a Bench of three Judges because it was found that a Bench of two learned Judges had taken the view that the companyclusion of an earlier Bench of three learned Judges was difficult to accept. The issue relates to whether Explanation 2 to Section 40 b of the Income Tax Act, 1961, introduced with effect from 1st April, 1985, is prospective in operation or only declaratory. In Brij Mohan Das Laxman Das vs. Commissioner of Income Tax 223 I.T.R./825 two learned judges companycluded that the said Explanation was declaratory. This view was accepted by a Bench of three learned judges in Suwalal Anandilal Jain vs. Commissioner of Income Tax 224 I.T.R. 753 . In the case of Rashik Lal Co. vs. Commissioner of Income Tax 229 I.T.R.458 this view was doubted. A Bench of two learned Judges observed that it was difficult to accept the proposition that the said Explanation was only clarificatory for the reason that if what was companytained in the said Explanation was already the law in force, then giving effect to the said Explanation from 1st April, 1985 did number make any sense. But the Bench immediately numbered, Hkowever, in the case before us, numberquestion of payment of any interest in involved. In other words, the application of Section 40 b and the said Explanation was number really in issue in Rashik Lals case relative to the said Explanation must, therefore, betreated as obiter dicta.

Case appeal was rejected by the Supreme Court

S. THAKUR, J. Leave granted. These appeals are directed against an order dated 9th March, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad whereby the High Court has set aside the order passed by the State Administrate Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment of this Court in V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, to be prospective in its application. An order dated 3rd November, 2010 passed by the High Court dismissing a review petition filed by the appellants against the said order has also been assailed. The facts in the backdrop are as under In V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, a three-Judge Bench was examining whether Special Rules framed by the Governor of Andhra Pradesh under proviso to Article 309 of the Constitution to the extent the same permitted appointment by transfer to a higher category on the basis of seniority-cum-efficiency were violative of para 5 2 of the Presidential Order issued under Article 371-D of the Constitution of India, 1950. Answering the question in the affirmative this Court held that the Presidential Order dated 18th October, 1975 issued under Article 371-D of the Constitution was aimed at providing equitable opportunities and facilities to the people belonging to different parts of the State in the matter of public employment, education etc. and that the Rules framed by the State Government under proviso to Article 309 whereby UDCs of the Labour Department, and Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspector of Labour Assistant Inspector of Factories were violative of the Presidential Order. The question had arisen on account of a challenge mounted by the Ministerial employees of the Labour Department against GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 whereunder UDCs in the Labour Department and those working in Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspectors of Labour and Assistant Inspectors of Factories. A full Bench of Tribunal before whom the challenge came up for companysideration declared that the impugned Rules to the extent they enabled the Ministerial employees of the Factories and Boilers Department or any other department to be companysidered for appointment to the posts in the Labour Department were violative of paras 3 and 5 of the Presidential Order and hence void. The view taken by the Tribunal was questioned before this Court by the aggrieved employees. Dismissing the appeals, this Court held that according to the scheme of the Presidential Order, local cadre was the unit under para 5 1 thereof for recruitment, appointment, seniority, promotion and transfers. This Court further held that while para 5 2 authorised the State Government to make provisions for transfer in certain specified circumstances, yet the term transfer companyld number be enlarged in its amplitude so as to include promotional aspects. This Court observed We find that para 5 2 of the Presidential Order speaks of transfer and number of promotion. It would be hazardous to accept the companytention of the appellants that promotion is included in the expression transfer and numberassistance can be availed from the distinction made in para 5 1 of the Order. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5 1 between transfer and promotion and such distinction was number intended to be operative in para 5 2 . The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has number been said. See Mohd. Ali Khan v. CWT 1997 3 SCC 5111 and Institute of Chartered Accountants of India v. Price Waterhouse 1997 6 SCC 312. We, therefore, find numberreason to accept this stand of the appellant that the expression transfer takes within its scope a promotion. Overruling the decisions rendered by this Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. 1989 Supp. 1 SCC 574, and in Govt. Of A.P. and Anr. v. B. Satyanarayana Rao Dead by Lrs. And Ors. 2000 4 SCC 262, this Court held that in terms of Article 371-D 10 of the Constitution any order made by the President shall have effect numberwithstanding anything in any other provision of the Constitution or in any law for the time being in force. This implies that if the Presidential Order prohibits companysideration of employees from the feeder category from other units then any rule made by the Governor in exercise of powers vested in him under the proviso to Article 309 of the Constitution will be bad in law, hence, liable to be struck down. So also if the State Government makes any provision which is outside the purview of the authority of the Government under para 5 2 of the Order, any such provision shall also be legally bad and liable to be struck down. This Court on that logic held In the case in hand, the impugned provisions do number appear to have been framed in exercise of powers under para 5 2 of the Presidential Order and as such the same being a Rule made under proviso to Article 309 of the Constitution, the Presidential Order would prevail, as provided under Article 371-D 10 of the Constitution. Even if it is companystrued to be an order made under para 5 2 of the Presidential Order, then also the same would be invalid being beyond the permissible limits provided under the said paragraph. In this view of the matter, the Tribunal rightly held the provision to the extent it provides for companysideration of employees of the Factories and Boilers Units to be invalid, for the purpose of promotion to the higher post in the Labour Unit and as such we see numberjustification for our interference with the said companyclusion of the Tribunal and the earlier judgment of this Court in Sadanandam case 1989 Supp 1 SCC 574 must be held to have number been companyrectly decided. As a companysequence, so would be the case with Satyanarayana Rao case 2000 4 SCC 262. The current companytroversy does number relate to GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 which fell for companysideration before this Court in V. Jagannadha Raos case supra . The case at hand arises out of slightly different though essentially similar circumstances. The present batch of cases relates to G.O.M. No.14, Labour Employment Training Ser. IV Department, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996. These two G.O.Ms. provide that while Senior Assistants and Senior Stenographers working in the Subordinate Offices of the Labour Department companystitute the feeding channel under Rule 3 of Andhra Pradesh Labour Subordinate Service Rules, Senior Assistants and Senior Stenographers working in the Head Offices shall also be eligible for appointment by transfer to the post of Assistant Labour Officer. Aggrieved by the G.O.Ms. some of the employees approached the Andhra Pradesh Administrative Tribunal for redressal. Their grievance primarily was that since the post of Assistant Labour Officer is a zonal post, employees working in the respective zones alone were entitled to be included in the feeding channel. Inclusion of other categories from outside the zone in the feeding channel for purposes of promotion or appointment by transfer was offensive to paras 3 3 and 5 1 of the Andhra Pradesh Public Employment Organisation of Local Cards and Regulation of Direct Recruitment Order, 1975 referred to hereinabove as the Presidential Order against the employees. These petitions were partly allowed by the Tribunal in terms of its order dated 7th March, 2003 and G.O.M. No.14, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996 struck down as unconstitutional to the extent the same provided a channel for Senior Assistant and Senior Stenographer in Andhra Pradesh Ministerial Service working in the Head Offices of Labour Department and those in Factories and Boiler Departments besides those in the Subordinate Offices in the said Departments for appointment by transfer to the post of Assistant Labour Officer. The Tribunal also struck down related provisions in the impugned G.O.Ms. stipulating quota and rotation etc. for these categories as being in violation of the Presidential Order with a direction that the respondents shall number give effect to the said provisions. Having said that the Tribunal directed that the striking down of the impugned O.Ms. would only be prospective and that any action taken in companypliance with the said Rules till 7th November, 2001 shall number be disturbed number any employee promoted on the basis of the legal position that prevailed earlier to the decision of this Court in V. Jagannadha Raos case supra reverted. The aggrieved employees, who had approached the Tribunal having succeeded but only in part, filed Writ Petitions No.6163 and 6068 of 2004 whereby they challenged the judgment of the Tribunal to the extent it saved the promotions already made on the basis of the impugned G.O.Ms. Writ Petition No.16890 of 2006 was also filed against the very same judgment by some of the employees who felt aggrieved by the view taken by the Tribunal that the impugned G.O.Ms. were in violation of the Presidential Order hence unconstitutional. A Division Bench of the High Court of Andhra Pradesh has, in terms of the judgment and order under challenge before us, allowed Writ Petitions No.6123 and 6068 of 2004 but dismissed Writ Petition No.16890 of 2006 relying upon certain decisions rendered by this Court. The High Court has taken the view that the doctrine of prospective overruling companyld be invoked only by the Apex Court and number by other Court including High Courts exercising powers under Article 226 of the Constitution. The net effect of the view taken by the High Court, therefore, is that number only are the impugned G.O.M. held to be unconstitutional, but any action taken pursuant thereto is also declared to be unconstitutional. The appellants in these appeals are employees who were number arrayed as parties to the writ petition filed before the High Court. Feeling aggrieved of the judgment and order passed by the High Court they filed Review WPMP No.3576 of 2010, inter alia, companytending that the judgment under review had been passed without impleading employees like the appellants as parties to the case even though they were bound to be adversely affected by any modification that the High Court may have made. It was companytended that the review petitioners-appellants before us in these appeals were necessary parties number only to the O.As filed before the State Administrative Tribunal but even to the writ petitions filed before the High Court and that in the absence of necessary parties to the proceedings the petitions challenging the Rules were liable to be dismissed. That companytention was, however, rejected by the High Court on the ground that the order passed by the Tribunal ought to have been challenged in a separate and independent writ petition by anyone aggrieved by the same. The review petitions were, accordingly, dismissed and the prayer for grant of leave to appeal to this Court rejected. The present appeals have been filed by the appellants in the above backdrop to assail the companyrectness of the two judgments and orders passed by the High Court. We have heard learned companynsel for the parties at length. The doctrine of prospective overruling has its origin in American jurisprudence. It was first invoked in this companyntry in C. Golak Nath Ors. v. State of Punjab Anr. AIR 1967 SC 1643, with this Court proceeding rather cautiously in applying the doctrine, was companyscious of the fact that the doctrine had its origin in another companyntry and had been invoked in different circumstances. The Court sounded a numbere of caution in the application of the doctrine to Indian companyditions as is evident from the following passage appearing in Golak Naths case supra where this Court laid down the parameters within which the power companyld be exercised. This Court said As this Court for the first time has been called upon to apply the doctrine evolved in a different companyntry under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions 1 The doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2 it can be applied only by the highest companyrt of the companyntry, i.e., the Supreme Court as it has the companystitutional jurisdiction to declare law binding on all the companyrts in India 3 the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. It is interesting to numbere that the doctrine has number remained companyfined to overruling of earlier judicial decision on the same issue as was understood in Golak Naths case supra . In several later decisions, this Court has invoked the doctrine in different situations including in cases where an issue has been examined and determined for the first time. For instance in India Cement Ltd. Ors. v. State of Tamil Nadu Ors. 1990 1 SCC 12, this Court number only held that the levy of the cess was ultra vires the power of State legislature brought about by an amendment to Madras Village Panchayat Amendment Act, 1964 but also directed that the State would number be liable for any refund of the amount of that cess which has been paid or already companylected. In Orissa Cement Ltd. v. State of Orissa Ors. 1991 Suppl. 1 SCC 430, this Court drew a distinction between a declaration regarding the invalidity of a provision and the determination of the relief that should be granted in companysequence thereof. This Court held that it was open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interest of justice. Reference may also be made to the decision of this Court in Union of India Ors. v. Mohd. Ramzan Khan 1991 1 SCC 588 where number-furnishing of a companyy of the enquiry report was taken as violative of the principles of natural justice and any disciplinary action based on any such report was held liable to be set aside. The declaration of law as to the effect of number supply of a companyy of the report was, however, made prospective so that numberpunishment already imposed upon a delinquent employee would be open to challenge on that account. In Ashok Kumar Gupta Anr. V. State of U.P. Ors. 1997 5 SCC 201, a three Judge Bench of this Court held that although Golak Naths case regarding unamendabiltiy of fundamental rights under Article 368 of the Constitution had been overruled in Kesavananda Bharati Sripadagalvaru Ors. v. State of Kerala 1973 4 SCC 225 yet the doctrine of prospective overruling was upheld and followed in several later decisions. This Court further held that the Constitution does number expressly or by necessary implication provide against the doctrine of prospective overruling. As a matter of fact Articles 32 4 and 142 are designed with words of width to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do companyplete justice. This Court observed 54So, there is numberacceptable reason as to why the Court in dealing with the law in supersession of the law declared by it earlier companyld number restrict the operation of law, as declared, to the future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. This Court is, therefore, number impotent to adjust the companypeting rights of parties by prospective overruling of the previous decision in Rangachari ratio. The decision in Mandal case postponing the operation for five years from the date of the judgment is an instance of, and an extension to the principle of prospective overruling following the principle evolved in Golak Nath case. Dealing with the nature of the power exercised by the Supreme Court under Article 142, this Court held that the expression companyplete justice are words meant to meet myriad situations created by human ingenuity or because of the operation of Statute or law declared under Articles 32, 136 or 141 of the Constitution. This Court observed 60 The power under Article 142 is a companystituent power transcendental to statutory prohibition. Before exercise of the power under Article 142 2 , the Court would take that prohibition sic provision into companysideration before taking steps under Article 142 2 and we find numberlimiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase companyplete justice engrafted in Article 142 1 is the word of width companyched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do companyplete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does number arise. As held earlier, the power under Article 142 is a companystituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does number arise. In M s Somaiya Organics India Ltd. etc. etc. v. State of U.P. Anr. 2001 5 SCC 519, this Court held that the doctrine of prospective overruling was in essence a recognition of the principle that the Court moulds the relief claimed to meet the justice of the case and that the Apex Court in this companyntry expressly enjoys that power under Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any case or matter pending before this Court. This Court observed In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the companyrt moulds the reliefs claimed to meet the justice of the case - justice number in its logical but in its equitable sense. As far as this companyntry is companycerned, the power has been expressly companyferred by Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any cause or matter pending before it. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants favour in order to do companyplete justice. The Doctrine of Prospective Overruling was, observed by this Court as a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship as a useful tool to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law that operated prior to the date of the judgment overruling the previous law. In Kailash Chand Sharma v. State of Rajasthan Ors. 2002 6 SCC 562, the companystitutional validity of rules providing for weightage based on domicile of the candidates was assailed before the High Court of Rajasthan. The High Court while reversing its earlier decisions, upholding the grant of such weightage declared the rule to be unconstitutional. In an appeal before this Court one of the questions that fell for companysideration was whether the selection made on the basis of the impugned rule companyld be saved by invoking the doctrine of prospective overruling. Answering the question in the affirmative, this Court cited two distinct reasons for invoking the doctrine. Firstly, it was pointed out that the law on the subject was in a state of flux inasmuch as the previous decisions of the High Court had approved the award of such weightage. This Court observed that on the date, the selection process started and by the time it was companypleted, the law as declared in the earlier decisions of the High Court held the field. Reversal of that legal position on account of a subsequent decision overruling the earlier decisions was companysidered to be a sufficient reason for companyplying with the doctrine of prospective overruling to save the selection process and the appointments made on the basis thereof. Reliance in support was placed upon the decision of this Court in Managing Director, ECIL Hyderabad v. B. Karunakar 1993 4 SCC 727. Secondly, this Court held that candidates who stood appointed on the basis of the selection process had number been impleaded as parties to the writ petitions that challenged the rules providing for marks based on the domicile of the candidates. That being so a judgment treading a new path should number as far as result in detriment to the candidates already appointed. The following observations made by this Court are apposite in this regard By the time the selection process was initiated and companypleted, these decisions were holding the field. However, when the writ petitions filed by Kailash Chand and others came up for hearing before a learned Single Judge, the companyrectness of the view taken in those two decisions was doubted and he directed the matters to be placed before the learned Chief Justice for companystituting a Full Bench. By the time this order was passed on 19-7-1999, we are informed that the select lists of candidates were published in many districts. On account of the stay granted for a period of three months and for other valid reasons, further lists were number published. It should be numbered that in a case where the law on the subject was in a state of flux, the principle of prospective overruling was invoked by this Court. The decision in Managing Director, ECIL v. B. Karunakar15 is illustrative of this viewpoint. In the present case, the legality of the selection process with the addition of bonus marks companyld number have been seriously doubted either by the appointing authorities or by the candidates in view of the judicial precedents. A cloud was cast on the said decisions only after the selection process was companypleted and the results were declared or about to be declared. It is, therefore, a fit case to apply the judgment of the Full Bench rendered subsequent to the selection prospectively. One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, number to speak of the candidates selected, were number made parties before the High Court. Maybe, the laborious and long-drawn exercise of serving numberices on each and every party likely to be affected need number have been gone through. At least, a general numberice by newspaper publication companyld have been sought for or in the alternative, at least a few of the last candidates selected appointed companyld have been put on numberice but, that was number done in almost all the cases. That is the added reason why the judgment treading a new path should number as far as possible result in detriment to the candidates already appointed. There was some debate at the Bar whether the High Court companyld have invoked the doctrine of prospective overruling even if the State Administrative Tribunal was incompetent to do so. It was companytended by the companynsel appearing for the respondents that the predominant legal opinion emerging from the pronouncements of this Court limited the application of the doctrine of prospective overruling only by the Supreme Court. Neither the Tribunal number the High Court companyld, according to the learned companynsel, have invoked the doctrine assuming that there was any justification for such invocation in the facts and circumstances of the case. Mr. Jayant Bhushan, learned senior companynsel appearing on behalf of the respondent, on the other hand, argued and, in our opinion, rightly so that it was unnecessary for this Court to go into the question whether the doctrine of prospective overruling was available even to the High Court. He urged that there companyld be numbermanner of doubt that even if the High Court was number companypetent to invoke the doctrine, numberhing prevented this Court from doing so having regard to the fact that those promoted under the impugned rules had held their respective positions for a companysiderable length of time making reversion to their parent zone cadre number only administratively difficult but unreasonably harsh and unfair. It was argued by Mr. Jayant Bhushan that the law as to the validity of the rules impugned in the present case was in a state of flux till the judgment of this Court in Jagannadha Raos case supra finally declared that provisions like the one made by the rules in the instant case are companystitutionally impermissible being in violation of the Presidential Order. That apart numberpromotion had been made after the 7th November, 2001, the date when the judgment of this Court in Jagannadha Raos case supra was pronounced. Such of the promotions as were already made companyld therefore be saved to balance equity and prevent miscarriage of justice vis--vis those who had on the basis of a rule companysidered valid during the relevant period been promoted against posts outside their zone cadre. In Jagannadha Raos case supra , the petitions were filed in the year 1987. The State Administrative Tribunal had declared the rule providing for inter-department transfer by promotion to be bad by its order dated 17th April, 1995. The legal position eventually came to be settled by the decision of this Court in the case on 7th November, 2001. The petitions in the present case were filed before the State Administrative Tribunal in the year 1997. The Tribunal had on the authority of the judgment aforementioned struck down the rules providing for ex-cadre zone promotions by its order dated 27th March, 2003, but saved the promotions already made. The judgment of the High Court of Andhra Pradesh challenging the order passed by the Tribunal to the extent it saved the promotions earlier made was pronounced on 9th March, 2007. The review petition filed by those affected by the striking down to the rules and facing the prospects of reversion were dismissed by the High Court on 3rd November, 2010. Promotions made before the pronouncement of the order in Jagannadha Raos case supra i.e. before 7th November, 2001 have, thus, companytinued for nearly ten years till the review petition filed by the petitioners was dismissed and the matter brought up before this Court. We had in that backdrop asked learned companynsel for the respondent-State to take instructions whether the State Government was ready to create supernumerary posts to accommodate the petitioners and prevent their reversion. An additional affidavit filed by the Commissioner of Labour, Government of Andhra Pradesh, however, does number appear to be supportive of what companyld be a solution to the stalemate arising out of the impugned judgment. The affidavit states that there is numberneed to create supernumerary posts to accommodate the petitioners in their original posts i.e. Senior Assistants and senior stenographers. It also declines creation of supernumerary posts in the Directorate for the petitioners who were working as Assistant Labour Officers, Assistant Commissioners of Labour and Deputy Commissioners of Labour. The affidavit states that the petitioners while working as Senior Assistants and senior stenographers had opted to go as Assistant Labour Officers outside the regular line on executive posts where the incumbents enforce the labour laws. The affidavit suggests as though the petitioners had taken a calculated risk in going out of their cadres by accepting higher positions as Assistant Labour Officers in another zone. Suffice it to say that the respondent-State has number expressed its willingness to create supernumerary positions. We have, therefore, numberoption but to examine the question of invoking the doctrine of prospective overruling on the merits of the case having regard to the facts and circumstances in which the question arises. While doing so we must at the threshold point out that the respondents are number companyrect in suggesting as though the petitioners had taken any deliberate or calculated risk by opting for promotion outside their cadres. The respondents have while making that assertion ignored the fact that promotions were ordered by the State and number snatched by the petitioners. That apart on the date the promotions were made there was numberelement of risk number were the promotions made subject to the determination of any legal companytroversy as to the entitlement of the incumbents to such promotion. Not only that, the incumbents who had been sent out on promotion as Assistant Labour Officers had subsequently been promoted as Assistant Labour Commissioners or Deputy Labour Commissioners. Such being the position reverting these officers at this distant point of time, to the posts of Senior Stenographers in their parent cadre does number appear to us to be either just, fair or equitable especially when upon reversion the State does number propose to promote them to the higher positions within their zone cadre because such higher posts are occupied by other officers, most if number all of whom are junior to the petitioners and who may have to be reverted to make room for the petitioners to hold those higher posts. Reversion of the petitioners to their parent cadre is therefore bound to have a cascading effect, prejudicing even those who are number parties before us. The fact that the petitioners were number arrayed as parties before the Tribunal or before the High Court also brings the fact situation of the present case closer to that in Kailash Chands case supra . The law in the present case was, as in Kailash Chands case supra , in a state of flux. Such being the position, we see numberreason why the doctrine of prospective overruling cannot be invoked in the instant case. Just because, this Court had number addressed that question in Jagannadha Raos case supra is also numberreason for us to refuse to do so in the present case. That apart, Jagannadha Raos case supra was dealing with a different set of numberms companyprising GoMs No.14 and 22 referred to earlier. While the basic question whether such GoMs permitting promotion by transfer from one department to the cadre or zone to another may have been the same, it cannot be denied that the rules with which this Court was companycerned in Jagannadha Raos case supra were different from those with which we are dealing in the present case. We feel that on the question of application of doctrine of prospective overruling, the judgment in Jagannadha Raos case supra will number stand as an impediment for this Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 19 of 1952. Appeal from the Judgment and Decree dated 19th June, 1950, of the High Court of Judicature at Calcutta Das and Guha JJ. in Appeal from Original Decree No. 48 of 1949.arising out of Judgment and Decree dated the 22nd December, 1948, of the Court of the Subordinate Judge, 3rd Court,24-Parganas, in Title Suit No. 53 of 1944. C. Chatterjee A. K. Dutt, with him for the appellants. Panchanan Ghose Radha Kanta Bhattacharya, with him for the respondent. 1953. January 16. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal is on behalf of the plaintiffs and is directed against the judgment and decree of a Division Bench of the Calcutta High Court dated June 19, 1950, reversing, on appeal, those of the Subordinate Judge, Third Court, 24-Parganas, passed in Title Suit No. 53 of 1944. The facts material for our present purpose are number in dispute and the companytroversy between the parties practically centres round one short point, namely, whether or number the plaintiffs suit is barred by limitation. The trial companyrt decided this point in favour of the plaintiffs, while the High Court has taken a companytrary view in appeal. The subject-matter of dispute is one-third share of shebaiti right in respect of a private debutter dedicated to an idol known by the name of Dakshineshwar Jew and situated at a village called Dhop Dhopi within the district of 24-Parganas in West Bengal. The deity is an ancient one and its reputed founder and first shebait was one Udhab Chandra Pandit. It is number disputed that by successive devolutions the rights of the shebait came to vest in one Iswar Chandra Chakroborti, who was the companymon ancestor of the parties to this suit. The following genealogical table will make clear the relationship of the several persons who figure as parties. to the present litigation as between themselves and also to their companymon ancestor. Iswar Ashutosh Govind Gopal Sadanan Talokya Haran dead m. Rajlakshmi Surendra Sashi adopted Tarakali Abani w Deft. 4 Kali Nirmal Plff. No. 1 Plff. No. 2 Moni Sarat Surendra Nagendra dead adopted Bidhu by Gopal Palani Deft. 3 Bala Deft. 1 Iswar died leaving six sons as his heirs and they were Ashutosh, Govinda, Gopal, Sadananda, Trailokhya and Haran. These six sons when they divided the properties of their father, divided the shebaiti right also which devolved upon them in six equal shares, and this division was by the method known as palas or turns of worship, which means that to each one of the sons was allotted the right of worshipping the deity for 5 days every month and during these days he alone was to discharge the functions of the shebait and receive the emoluments attached to the office. Gradually, a custom grew up in the family according to which these palas companyld be bought and sold or otherwise alienated amongst the members of the shebaits family. Govinda, who was the father of the plaintiffs and who got 5, days pala every month in his share, sold his interest in the shebaiti to Haran, a brother of his, and the result was that Haran acquired 10 days pala every mouth or one-third share in the entire shebaiti right. Haran died without any issue leaving him surviving, his widow Rajlakshmi as his sole heir under the Hindu law and Rajlakshmi companytinued to hold this one- third share of shebaiti right along with other properties of the deceased. On 17th June, 1920, Rajlakshmi granted an ijara lease of her shebaiti right for a term of two years to one Satish Chandra Dey. On 1st of April, 1921, Satish sold this leasehold interest in respect to the palas to one Ram Rakhal Ghose. Previous to that, on 6th of August, 1920, Ram Rakhal had himself taken a lease from Rajlakshmi of her shebaiti right for a period of 5 years, this lease to companymence at the close of the previous lease in favour of Satish. Ram Rakhal admittedly got possession of the office of shebait and began to exercise his rights as such on and from the 1st of April, 1921. By a deed of companyveyance dated the 7th of November, 1921, Rajlakshmi made an out and out sale of her shebaiti right in favour of Ram Rakhal and twenty days after this purchase, that is to say, on 27th November, 1921, Ram Rakhal in his turn sold this interest to Nagendra and Surendra, two of the sons of Trailokhya. Surendra died some time afterwards and on 20th of June, 1925, his widow Tarakali sold her husbands share in the shebaiti right to Nagendra, her husbands brother. Thus Nagendra in addition to what he had inherited from his own father came to hold the entirety of a third share in the shebaiti right, represented by 10 days pala every mouth, which was previously hold by Haran. Rajlakshmi died on 22nd December, 1943, and the two plaintiffs, who are the two surviving sons of Govinda, filed the suit out of which this appeal arises for recovery of possession of this one-third shebaiti right of Haran on the allegation that they were the next heirs of Haran at the time of Rajlakshmis death. Nagendra had died in the meantime and the first and the principal defendant in the suit is his daughter Palani Bala, who is a minor and is represented by her husband as guardian. The second defendant is the receiver, who has been placed in charge of the properties of Palani Bala in a guardianship proceeding pending before the District Judge of 24Parganas. The defendants 3 and 4 are the surviving descendants of Iswar who hold the remaining interest in the shebaiti right. The case of the plaintiffs, in substance, is that the one- third share of the shebaiti right, which was held by Haran during his lifetime, devolved upon his widow Rajlakshmi who had only the restricted rights of a Hindu widow in respect to the same. On the death of the widow, the interest vested in the plaintiffs. who were the nearest heirs of Haran at the time of Rajlakshmis death. They, accordingly, prayed for-being put in possession of this one-third share of the shebaiti right represented, as stated aforesaid, by 10 days pala every month after evicting the defendant No. 1 therefrom. There was a claim also for mesne profits from the date of the widows death. In the plaint a description has been given of the temple, its appurtenant lands and also of the structures standing thereupon, but there is numberprayer for possession in respect of these properties. The suit was resisted on behalf of defendant No. 1 and the main companytention raised was that as the sale of her shebaiti right by Rajlakshmi, the widow of Haran, was a void transaction which did number create any right in the transferee, the possession of Ram Rakhal and after him his vendees, who were the predecessors of defendant No. 1 , was adverse against all the shebaits, and the defendant No. 1 companysequently acquired an -indefeasible title to this third share in the shebaiti right by adverse possession and the plaintiffs suit was barred by limitation. Several other companytentions were raised but they are number material for our present purpose. The trial Judge by his judgment dated the 22nd December 1948, overruled the pleas taken by the defendant and gave the plaintiffs a decree. On the question of limitation, the Subordinate Judge held that although article 141 of the Indian Limitation Act was number attracted to this cage, yet the plaintiffs suit was number barred by limitation. Two reasons have been assigned for this view. It has been said in the first place that Nagendra purported to purchase only the life interest of Rajlakshmi companysequently his position as purchaser was in recognition of the interest of the reversionary heirs of Haran. It is said further that as Rajlakshmi and Nagendra were both companyshebaits of the deity, the possession of the latter companyld number have been adverse to the former, they being in the position of companysharers in law and numberhing like ouster being alleged or proved in this case. Against this judgment, the defendants 1 and 2 took an appeal to the Calcutta High Court and the appeal was heard by a Division Bench companysisting of Das and Guha JJ. The learned Judges while affirming all the other findings arrived at by the trial judge disagreed with the latter on the question of limitation. It was held by the High Court that the proper article to apply in this case was article 124 of the Limitation Act, and as the defendant No. 1 and her predecessors had been in possession of the hereditary office of the shebait adversely to the plaintiff for more than 12 years prior to the institution of the suit, the plaintiffs claim was barred by limitation. In this view, the judgment of the trial companyrt was reversed and the plaintiffs suit dismissed. The only point canvassed before us in this appeal is that of limitation and the arguments that have been advanced before us on this point by the learned companynsel on both sides really raise two questions for our determination. The first is, whether on the facts of the present case the plaintiffs suit is governed by article 124 or article 141 of the Limitation Act ? If article 141 is the appropriate article, it is number disputed that the plaintiffs suit is well within time but if -article 124 is applicable, the other point that would require companysideration is, when did the defendant or her predecessors take possession of the hereditary office of shebait adversely to the plaintiffs ? Was their possession adverse from the very date of the transfer by Rajlakshmi or did it become so only at her death ? The proposition is well established that the alienation of the shebaiti right by a shebait in favour of a stranger is absolutely void in Hindu law and cannot be validated even on the footing of a custom. The alienee of the right is, therefore, a trespasser out and, out and his possession as against the transferor is adverse from the very beginning. Mr. Chatterjee appearing for the plaintiffs appellants has number assailed the companyrectness of this proposition of law his companytention is that the possession of shebaiti right by defendant No. 1 and her predecessors might have been adverse against Rajlakshmi ever since the date of transfor and on the strength of such possession they might have acquired a statutory title against her in respect of the shebaiti interest but such adverse possession for more than the statutory period though it might bar the widow would number bar the reversioners who do number derive their title from or -through her. This, it is said, is the principle underlying the law of limitation in India ever since 1871 and article 141 of the Limitation Act expressly recognises and gives effect to it. It is companytended by Mr. Chatterjee that even if article 141 does number apply to the facts of the present case and article 124 is taken to be the appropriate article, the plaintiffs suit would be quite within time as the defendant or her predecessors must be held to have taken possession of the office of the shebait adversely to the present plaintiffs only when the widow died and number before that. On the other hand, it has been argued by Mr. Panchanan Ghose that there is numberhing like a general principle of law that adverse possession against a Hindu widow companyld number be reckoned as adverse possession against her reversionary- heirs. That, it is said, is only a special rule which rests entirely upon the particular provision of article 141 of the Limitation Act and is companyfined in its operation to cases which companye within the purview of that article. Mr. Ghoses companytention is that article 141 has numberapplication to the facts of this case and companysequently there is numberreason for holding that adverse possession against the widow if it was companytinued for the statutory period would number bar the reversionary heirs also. This, he says, was the law prior to the introduction of article 141 into the statute book and that is the law which governs all cases even number which do number directly companye under that article. According.to the learned companynsel, article .124 is the proper article which governs this case and the possession of the transferee of, the shebaiti interest being admittedly adverse to -the, holder of the office at the date of the transfer, it would be adverse against the next holder also, numbermatter whether strictly he derives his title from the previous holder or number. It is urged that in the case of a hereditary office like that of a shebait, the powers of a female shebait are in numberway more restricted than those of a male shebait and as the trust estate during the incumbency of a female shebait resides in her companypletely and effectually as in a male trustee, the male trustee who companyes after her cannot claim the benefit of the principle upon which article 141 of the Limitation Act is founded. The points raised are numberdoubt important and require careful examination. It may be mentioned at the outset that in the old Limitation Act Act XXIV of 1859 there was numberspecific provision relating to suits by reversioners for recovery of possession of property held by a Hindu widow in her restricted right. There were provisions only of a most general character companytained in sections 12 and 16 of the Act, under which limitation for suits to recover immovable and movable properties was 12 and 6 years respectively from the time the cause of action arose . Even before this Act was passed, in a case 1 decided by the Supreme Court of Calcutta, Peel, C. J. made the following observation It has been invariably companysidered for many years that the widow fully represented the estate, and it is also settled law that adverse possession which bars her bars the heir after her, which would number be the case if she were a mere tenant for life, as known to the English law . In 1863 the case of Katama Natchier v. Rajah of Shivagunga 2 was decided by the Judicial Committee of the Privy Council and the proposition was laid down, which has number been questioned since then, that, when the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained Goluckmani v. Digambar, 1852 Macpherson on Mortgage, 2nd ed., 20. 2 1861-63 9 Moo. I.A. 539. against her in regard to her estate is in the absence of fraud or companylusion binding on the reversionary heir. Turner L.J., who delivered the judgment of the Board, observed in companyrse of his judgment. The whole estate would for the time be vested in her, absolutely for some purposes, though, in some respects, for a qualified interest and until her death it companyld number be ascertained who would be entitled to succeed. The same principle which has prevailed in the companyrts in this companyntry as to tenants-in-tail representing the inheritance, would seem to apply to the case of a Hindu widow and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were number bound by a decree fairly and properly obtained against the widow. The case proceeded entirely on the footing that although the widow for some purposes has only a partial interest in her husbands estate, for other purposes the whole estate vests in her, and that her interest is somewhat akin to that of a tenant-in-tail under the English law. If the suit was number in respect of a personal claim against the widow but in respect of the estate which, in law, she fully represents, a decree fairly and properly obtained would bind the reversionary interest 1 . There was absolutely numberquestion of adverse possession raised in this case but the rule enunciated in it was relied upon in deciding several cases under the Limitation Act of 1859, where the question arose as to whether adverse possession for more than the statutory period, which bars the widow, would bar her reversionary heirs also. The leading pronouncement on this point is to be found in Nobin Chunder v. Issur Chunder 2 upon which Mr. Ghosh has laid very great stress. In that case a trespasser had taken possession of the estate against the widow and it was held that such adverse possession was effective against the reversioners as well. The cause of action, it was said, accrued to the widow and Vide in this companynection Jugal Kishore v. Jotendro. 11 A. 66. 73. 2 9 W.R. 505. a suit by her or by her reversioner must be brought within 12 years from the date of dispossession as laid down in section 12 of the Limitation Act of 1859. The decision can certainly be justified on the law of limitation as it then stood. The Act of 1859 did number provide a separate rule as regards reversioners and all suits for recovery of possession of immoveable property had to be brought within 12 years from the date of the accrual of the cause of action. If there was a trespass against the widow, the companymencement of the trespass would companystitute the cause of action for the suit and a suit against the trespasser would have to be brought within 12 years, numbermatter whether it was brought by the widow or by the reversioner. The learned Judges companyld number overlook the fact that it was number possible for the reversionary heirs to institute a suit for possession during the lifetime of the widow. The difficulty, however, was got over by invoking the principle of representation of the estate by the widow enunciated in the Shivagunga case. Sir Barnes Peacock, C.J. observed as follows It is said that the reversionary heirs companyld number sue for possession during the lifetime of the widow, and that therefore they ought number to be barred by any adverse holding against the widow at a time when they companyld number sue. But when we look at the widow as a representative and see that the reversionary heirs are bound by decrees relating to her husbands estate which are obtained against her without fraud or companylusion, we are of opinion that they are also bound by limitation by which she, without fraud or companylusion, is barred. Since an adverse decision against a widow was held binding upon a reversioner on the principle of representation of the estate, a similar result was held to follow in the case of adverse possession against her so as to put an end to the reversionary interest. This principle was affirmed by the Privy Council in Aumirtolall v. Rajonee Kant and Sir Barnes Peacock, who delivered the judgment, expressly affirmed tHE 1 1874-75 2 I.A. 113. decision in Nobin Chunder v. Issur Chunder 1 . It may be numbered here that though the Privy Council judgment in this case was passed in the year 1875 it was a decision under the old Limitation Act of 1859. In 1871 a new Limitation Act was passed which repealed the earlier Act of 1859. Article 142 of this Act which companyresponds to article 141 of the present Act expressly prescribed a period of limitation of 12 years for a suit by a Hindu entitled to possession of immovable property on the death of a Hindu female heir, the limitation to run from the time when the female heir died. This provision, extended further so as to include a suit by a Mohammedan, was reproduced in the Act of 187 7 and again in article 141 of the present Act. It seems to us to be a companyrect view to take that this was a change deliberately made by the legislature in the existing law. Article 141 speaks of a like suit and this means that it is a suit for- possession of immovable property which is provided for in the previous article. The earlier Article relates to a suit by a remainderman or a reversioner in the technical sense of the English lawyers and lest there be companyfusion if the expression reversioner is used with reference to the estate of a Hindu or Mahommedan female heir, the legislature deliberately used the words a Hindu or Mahommedan entitled to possession of property on the death of a female heir. The estate of a Hindu female heir, as is well known, is extremely anomalous in its character it cannot be described either as an estate of inheritance or one for life, though it partakes of the nature of both. The intention of the legislature in introducing this provision was obviously to do away with these anomalies for the purpose of applying the law of limitation and for this purpose the Hindu widows estate was companypletely assimilated to that of a tenant for life. This was the view taken, and in our opinion quite rightly, by a Full Bench of the Calcutta High Court in Srinath Kur v. Prosunno Kumar 2 and by the Bombay High Court in Vundravandas v. Cursondas 3 , the decision 1 9 W.R. 505. 2 1883 9 Cal. 934. 3 1897 21 Bom. 646. in the latter case being affirmed by the Privy Council in Ranchordas v. Parvati 1 . The decision in Ranchordass case has all along been treated as an authority for the proposition that the statute of limitation does number begin to run against the reversioner when there is dispossession of a Hindu female holding a limited estate and in such cases the reversioner has a right to institute a suit within 12 years from the death of the female heir when the estate actually falls into possession. It is to be numbericed that the Judicial Committee in Ranchordass case expressly laid down that even in respect of movable, to which article 141 does number apply, the reversioners right to property accrues on the death of the widow and number before that. Opinion was expressed in some cases 2 that the view taken in Ranchordass case was shaken to a companysiderable extent by the later pronouncerment of the Judicial Committee in Vaithialinga v. Srirangath 3 , and that the principle of representation of the estate by the widow upon which the rule in Shivagungas case rested, companyld be applied to a case of adverse possession against the widow. But all doubts on this point were set at rest by the decision of the Privy Council itself in Jaggo v. Utsava 4 and the law can number be taken to be perfectly well settled that except where a decree has been obtained fairly and properly and without fraud and companylusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be, instituted by a reversioner to recover such property either against an alienee from the female heir or a trespasser who held adversely to her accrues only on the death of the female heir. This principle, which has been recognised in the law of limitation in this companyntry ever since 1871 seems to us to be quite in accordance with the acknowledged principles of Hindu law. The right of reversionary heirs is in the nature of spes successionis,and as the reversioners do number trace their title through or from the widow, it would be manifestly 1 1899 26 I.A. 71. 2 Vide Aurobinda v. Monorama 1928 55 Cal. 903. 3 1925 52 I.A. 322. 4 1929 56 I.A. 267. unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger. The companytention raised by Mr. Ghose as regards the general principle to be applied in such cases cannot, therefore, be regarded as sound. Coming number to the specific points raised in the case, the first thing that requires companysideration is, whether the present suit is governed by article 124 or article 141 of the Limitation Act ? The learned Judges of the High Court have held and quite properly that the benefit of article 141 companyld be claimed only if there was a qualified estate in the female heir after whose death the plaintiff was entitled to the property as the heir of the last male holder. According to the learned Judges, however, this companydition was number fulfilled in the present case, inasmuch as the subject matter of dispute was the right of shebaitship and the rights of a female shebait, it is said, are number in any way more restricted or qualified than those of a male shebait, although she cannot transmit this office to her own heirs. Reliance ha, been placed in this companynection upon a decision of the Madras High Court in Pydigantan v. Rama Dass 1 , which was followed by a Division Bench of the Calcutta High Court in Lilabati v. Bishen 2 . This method of approach seems to us to be open to doubt. Whatever might be said about the office of a trustee, which carries numberbeneficial interest with it, a shebaitship, as is number well settled, companybines in it both the elements of office and property. As the shebaiti interest is heritable and follows the line of inheritance from the founder obviously when the heir is a female, she must be deemed to have, what is known, as widows estate in the shebaiti interest. Ordinarily there are two limitations upon a widows estate. In the first place, her rights of alienation are restricted and in the second place, after her death the property goes number to her heirs but to the heirs of the last male owner. It is admitted that the second element is present in the 1 I905 28 Mad. 197. 2 1907 6 nC.L.J. 621. case of succession to the rights of a female shebait. As regards the first, it is quite true that regarding the powers of alienation, a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir 1 . But although we may number approve of this line of reasoning adopted by the High Court, we are in agreement with the learned Judges that the proper article to be applied in this case is article 124 and number article 141. There companyld be numberdoubt that there is an element in the shebaiti right which has the legal characteristics of property but shebaitship is property of a peculiar and anomalous character, and it is difficult to say that it companyes under the category of immovable property as it is known in law. Article 141 refers expressly to immovable property and number to property in the general sense of the word. on the other hand, it is quite settled that a shebaiti right is a hereditary office and as such companyes within the express language of article 124 of the Limitation Act. We think that when there is a specific article in the Limitation Act which companyers a parti- cular case, it is number proper to apply another article, the application of which is number free from doubt. We hold, therefore, that article 124 is the proper article to be applied, and the question number arises as to whether the plaintiffs suit is barred by limitation under this article, as has been held by the learned Judges of the High Court ? Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the legislature is obviously to treat hereditary office like land for the purpose of barringsuits for possession of such office and extinguishing the right to the possession thereof Vide Angurbala v. Debabrata, 1951 S.C.R. 1125, 1136. after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is companyceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time but the companytention of Mr. Chatterjee is that as the plaintiffs did number claim through or from Rajlakshmi, the defendant companyld number be regarded as taking possession of the office adversely-to the plaintiffs. He refers in this companynection to the definition of Plaintiff in section 2 8 of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right to sue. In answer to this, it is argued by Mr. Ghose that a shebait like a trustee represents the entire trust estate and the next trustee, even though he may number strictly claim through or from the -previous holder of the office, must be deemed to be bound by acts or omissions of the latter and in support of this companytention he relies upon the judgment of the Judicial Committee in Gnanasambanda v. Velu 1 . -We do number think that this companytention is right. Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by the reason of the latter being, a heir to the former. Under the Hindu Law of Inheritance, when a female heir intervenes, she holds during her lifetime a limited interest in the estate and after her death succession opens out number to her heirs but to the heirs of the last male holder. It has number been and cannot be disputed that the same rule applies in the case of succession to shebaitship. Reading article 124 of the Limitation Act along with section 2 8 , the companyclusion is irresistible that to defeat the title of the plaintiff under article 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnanasambanda v. Velu 1 . In 1 1900 27 I. A. 69. this case two persons, who were hereditary trustees of a religious endowment, sold their right of management and transferred the entire endowed property to the defendant appellant. The sales. were null and void and the possession taken by the purchaser was adverse to the vendors from the very beginning. The plaintiff Velu was the son and heir of one of the hereditary trustees and he instituted the suit more than 12 years after the date of the transaction claim- ing possession of the office along with the heir of the other trustee who was joined as a defendant in the suit.

Case appeal was accepted by the Supreme Court

Bose, J. This appeal companyes from Bombay. It raises two questions under the Excess Profits Tax Act, 1940. The first companycerns Rule 5 of schedule II of the Act and the other raises a question about the managing agency companymission due to the managing agents of the assessee companypany. The assessee is the Shree Ram Mills Limited of Bombay. The assessment year is 1945-46 and the accounting year is the calendar year 1944. The Income-tax Officer assessed the profits for income-tax at Rs. 46,18,384 and that is number questioned. The Excess Profits Tax Officer companyputed the profits, for excess profits tax purposes, at Rs. 46,94,304. In reaching this figure he excluded certain items in the return for determining how the profits increased the capital for example, he excluded money given away as presents and in charity etc. Now in order to determine the quantum of excess profits tax payable by an assessee it is necessary under the Act to companypute, among other things, the average amount of capital employed by the business during a certain period. This, under Section 2 3 , has to be the average amount of capital as companyputed in accordance with the second Schedule. That brings in the disputed rule, Rule No. 5 in Schedule II. It runs as follows - For the purpose of ascertaining the average amount of capital employed in a business during any period, the profits or losses made in that period shall excepts so far as the companytrary is shown, be deemed - a to have accrued at an even rate throughout the period and b to have resulted, as they accrued, in a companyresponding increase or decrease, as the case may be, in the capital employed in the business. The dispute centers round the words we have underlined. The learned companynsel for the assessee companytends that the words only govern clause a and number clause b . The department has accepted in this case that the profits accrued at an even rate because the assessee has number rebutted that presumption number has the department attempted to do so. The learned companynsel for the assessee companytends that that being so, the department is bound to apply clause b because the words we have underlined only govern clause a and number clause b . His companytention is that Rule 5 is an artificial rule which creates a fiction, namely that the profits accrue evenly over the year even when that is number the fact. Therefore the moment either party shows that this is number the case Rule 5 falls to the ground as a whole because the artificial presumption it created has been rebutted. Clause b , he companytends, cannot have any independent existence because it is a mere companyollary to clause a . In the same way, he says, if clause a is accepted, then clause b lives also, and as clause a has been accepted here clause b must also be applied without anything more. We do number agree. The word deemed clearly governs both clauses, for the fiction which the Rule creates is number only that the profits shall be deemed to have accrued at an even rate throughout the period, but further that they must be deemed to have resulted, as they accrued, in a companyresponding increase or decrease in the capital. In the same way, the words except so far as the companytrary is shown govern both clauses and it is open to either side to rebut the artificial presumptions created by that Rule by showing that either clause does number represent the true facts. Thus, it can be shown either that the profits did number accrue at an even rate throughout the period or that the profits did number actually go to increase the capital, as for example when it was taken out of the business and handed over to charities and so forth, and if only one of the two presumptions is rebutted, the other stands. The High Court resettled the first question we are asked to answer as follows - Whether on a true companystruction of Rule 5 of Schedule II of the Excess Profits Tax Act the expression so far as the companytrary is shown applies only to sub-clause a or also to sub-clause b ? We agree with the answer given by the High Court, namely that the words so far as the companytrary is shown apply to both clauses a and b . The next question is about the managing agency companymission. Under the Articles of Agreement entered into between the assessee and its managing agents the agents were to be paid a certain companymission and the articles provided - The said companymission shall be due to the said firm yearly on the thirty-first day of December in each and every year during the companytinuance of this agreement and shall be payable and be paid immediately after annual accounts of the said companypany have been passed by the shareholders of the companypany The managing agents left the companymission lying with the assessee. The assessee companytends that this companystitutes a borrowing within the meaning of Rule 2A of Schedule II. The Commissioner of Income-tax says it is a debt within the meaning of Rule 2. We agree with the High Court that this is a debt and number a borrowing. At bottom this is a question of fact. Of companyrse, money so, left companyld, by a proper agreement between the parties, be companyverted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot companyvert the money due to them, and number withdrawn, into a loan. A loan imports a positive act of lending companypled with an acceptance by the other side of the money as a loan. The relationship of borrower and lender cannot ordinarily companye about by mere inaction. The clause in the Articles of Agreement quoted above was relied on for the purpose of showing that there was such an agreement in the case. We are unable to companystrue the provisions in that way. They merely give the managing agents a right to receive their companymission at a certain time. If the money is number paid in time it lies with the assessee as a debt due to the agents. The second question was framed as follows - Whether the managing agency companymission payable by the companypany to its managing agents for the year 1943 is borrowed money for the purposes of Rule 2A or a debt for the purposes of Rule 2 of Schedule II to the Excess Profits Tax Act ? We agree with the High Court that it is a debt under Rule 2 and number a borrowing under Rule 2A.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 154 of 1952. Appeal from the Judgment and Decree dated the 23rd June, 1949, of the High 1010 Court of Judicature at Bombay chagla C. J. and Gajendragadkar J. in Second Appeal No. 557 of 1945 against the Judgment and Decree dated the 19th March, 1945, of the Court of Small Causes, Poona, in Civil Appeal No. 175 of 1943, arising from the Decree dated the 31st March, 1943, of the Court of the Extra Joint Sub-Judge of Poona in Suit No. 858 of 1941. K. Daphtary, Solicitor-General for India J.B. Dadachanji, with him for the appellant. M. Tarkunde for the respondents. 1953. February 27. The judgment of the Court was delivered by MAHAJAN J.-This is an appeal by defendant No. I from the decree of the High Court of Judicature at Bombay in Second Appeal No. 557 of 1945, whereby the High Court companyfirmed the decree of the lower companyrts granting possession of land to the respondents on the forfeiture of a lease. The appeal is companyfined to survey No. 86/2 at Mundhava in Poona district. The principal question arising for decision in the ap. peal is whether numberice as companytemplated by section III g of the Transfer of Property Act is necessary for the determination of a lease for number-payment of rent even where such lease was executed before the companying into force of the Transfer of Property Act. The only other question that falls for determination is whether the High Court should have interfered with the discretion of the lower companyrts in refusing relief against forfeiture in the circumstances of this case. The present respondents are the daughter and grand sons of the original plaintiff Vinayakbhat. His adoptive mother was Ramabai. She owned two inam lands at Mundhava which were then numbered Pratibhandi Nos. 71 and 72. Present survey Nos. 86/1 and 86/2 together companyrespond to old Pratibhandi No. 71. On 1st July, 1863, Ramabai, while she was in financial difficulties, passed a permanent lease of both these numbers to one Ladha Ibrahim Sheth. The lessee paid a premium of Rs. 999 for the lease, and also agreed to pay 1011 a yearly rent of Rs. 80 to Ramabai during her lifetime and after her death a yearly amount equal to the assessment of the two lands to the heirs of Ramabai. The lease provided that in default of payment of rent the tenants rights would companye to an end.- On 18th August, 1870, Ladha Ibrahim sold his tenancy rights to one Girdhari Balaram Lodhi for Rs. 7,999. The sale deed provided that in default of payment of rent to Ramabai or her heirs, the purchaser would have numberrights whatsoever left over the property. On the same day the purchaser passed a rent numbere in favour of Ramabai. The rent numbere provided for the payment of the agreed rent in the month of Pousb every year, and stated that in case of default the tenant or his heirs would have numberright over the land. Defendant No. 1 and the other defendants are the grandsons of Seth Girdhari Balaram. In spite of the nullity clause in the lease it appears that the lessee has been more or less a habitual defaulter in the payment of rent. In the year 1913, rent for six years was in arrears. Vinayakbhat filed Suit No. 99 of 1913 in the companyrt of the II Class Sub-Judge, Poona, against the present defendants for possession of the demised premises on the ground of forfeiture. A number of defences were raised by them. Inter alia, it was pleaded that as numbernotice had been given to them the forfeiture was number enforceable. These companytentions were negatived but the companyrt granted relief against forfeiture. Defendant No. 1 was a minor at that time and became a major in or about 1925. In the year 1928 again rent for two years was in arrears. Vinayakbhat filed Civil Suit No. 258 of 1928 against the present defendants for possession on the ground of forfeiture. The plaintiff subsequently waived the forfeiture by accepting three years rent which by then had fallen in arrears and companyts of the suit. In the year 1931 rent for three years again fell into arrears. The amount was then sent by money order and the landlord accepted it. In the year 1934 again rent for three years remained unpaid. At that time proceedings were started by Government for the acquisition of the old survey No. 72. 1012 The landlord claimed that he was entitled to the whole companypensation money as the tenants rights had ceased by forfeiture for number-payment of rent. Defendant No. 1 through his pleader sent a numberice to Vinayakbhat to companye and take the arrears of rent. He agreed and accepted the arrears of rent and the forfeiture was again waived. As a result of this the defendants got Rs. 32,000 by way of companypensation for the permanent tenancy rights in old survey No. 72, while Vinayakbhat got Rs. 1,400 for companypensation for the acquisition of his rights as landlord in that land. In 1938 rent for four years was again in arrears. Vinayakbhat filed Civil Suit No. 982 of 1938 in the companyrt of the I Class Sub-Judge at Poona against all the present defendants for possession of survey Nos. 86/1 and 86/2 on the ground that the lease had determined by forfeiture for number-payment of rent. In that suit defendant No. 1 pleaded that there was numberforfeiture because numberrent was fixed in respect of the suit property and also because it was for the, plaintiff to recover rent and number for the defendants to go to the plaintiff and pay it. These companytentions were negatived. It was held that forfeiture had occurred but relief against forfeiture was again granted. On plaintiffs appeal in this case, the learned District Judge refused to interfere with the discretion of the trial judge in granting relief against forfeiture but observed that the defendants having obtained relief against forfeiture thrice before should number expect to get it for a fourth time if they again make default in the payment of rent. The default which has given rise to the present suit occurred on 28th January, 1941, and the plaintiff filed the suit out of which this appeal arises for possession on the ground of forfeiture and for the arrears of rent which remained unpaid. It was alleged in the plaint that the rent due on 28th January, 1941, was number paid, though demanded. Plaintiff asked for possession of survey Nos. 86/1 and 86/2 after removal of the structures thereon. Defendant No. 1 pleaded that as a result of partition rights in survey No. 86/2 had fallen to 1013 his share, that according to the terms of the rent numbere it was for the plaintiff to approach the defendants and. number for the defendants to go to the plaintiff and pay it,- that as the plaintiff did number approach the defendants and numberdemand for rent was made, numberforfeiture occurred, that defendant No. I did offer the rent to the plaintiff, but the plaintiff fraudulently refused to accept it, that the plaintiff ought to have sent a numberice according to law if he wanted to enforce the right of forfeiture and that without prejudice to the above companytentions he should be granted relief against forfeiture. The trial companyrt decreed the plaintiffs suit and negatived the companytentions raised by the defendants. In awarding Possession of the entire property to the plaintiff the trial companyrt imposed a companydition that defendant No. I should companytinue to be in possession of the two structures in survey No. 86/2 till the end of March, 1950. On the question whether a numberice was necessary before the lease companyld be terminated, the trial companyrt expressed the view that the provision in the rent numbere that on number-payment of rent the rights of the tenant would companye to an end was a clause of nullity and number merely a clause of forfeiture and that the lease was therefore determined under section 111 b and number under section III g of the Transfer of Property Act and that numbernotice as required by section 111 g was necessary for terminating the lease in suit. On the issue whether forfeiture should be relieved against, the trial companyrt said that relief companyld have been given to the lessee against forfeiture under section 1 14 had it number been for the fact that the defendants had disentitled themselves to relief by companytumacious companyduct on their part, that even this paltry rent had never been paid in time during the last twenty years at any rate, and that after defendant No. I had attained majority and got the estate in his charge in 1922- 23 he had uniformly defaulted in the payment of rent and that the defendants raised totally false defences and in every suit a false excuse was set up in an attempt to justify the arrears of rent. 1014 In pursuance of the trial companyrts decree plaintiff took possession of all the suit lands in April, 1943, except one acre which he took possession on 13th September, 1943. Defendant No. I remained in possession of the two structures on survey No. 86/2. Against the decision of the trial judge defendant No. I-alone filed an appeal to the District Judge of Poona. The lower appellate companyrt companyfirmed the decree of the trial companyrt with two modifications. Defendant No. I was allowed to remove the buildings on survey No. 86/2 and also the trees therein within three months. On the issue whether a numberice was necessary, the appellate companyrt found that the lease came to an end number under section 111 b but under section 111 g of the Transfer of Pro perty Act, but that numbernotice of forfeiture was necessary as the lease had been executed prior to the companying into force of the Transfer of Property Act. The appellate companyrt saw numbervalid reason for interfering with the finding of the trial judge on the question companycerning relief against forfeiture. From this appellate decree defendant No. I filed a second appeal to the High Court of Judicature at Bombay. The plaintiff filed cross-objections in regard to the trees and companyts. The High Court dismissed the appeal and allowed the cross-objections. An application was made for leave to appeal to the Supreme Court and it was granted with reference to survey -No. 86/2. The law with regard to the determination of a lease by forfeiture is companytained is section III g of the Transfer of Property Act. Under that provision a lease is determined by forfeiture in case the lessee breaks an express companydition which provides that on breach thereof the lessor may re- enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event and a certain further act is done by the lessor as thereinafter mentioned. Prior to its amendment by Act XX of 1929, this sub-section further provided 1015 And in any of these cases the lessor or his transferee does some act showing his intention to determine the lease. By Act XX of 1929, this subsection was amended and the amended sub-section number reads- And in any of these cases the lessor or his transferee gives numberice in writing to the lessee of his intention to determine the lease. Section 111 g in terms makes the further act an integral companydition of the forfeiture. In other words, without this act there is numbercompleted forfeiture at all. Under the old section an overt act evidencing the requisite intention was essential. As the law stands today under the Act, numberice in writing by the landlord is a companydition precedent to a forfeiture and the right of re-entry. Section 63 of Act XX of 1929, restricts the operation of this amendment to transfers of property made after 1st April, 1930. The lease in this case was executed before the Transfer of Property Act came into force in 1882. The amendment therefore made in this sub-section by Act XX of 1929 number being retrospective, cannot touch the present lease and it is also excluded from the reach of the Transfer of Property Act by the provisions of section 2. The position was number seriously disputed in the High Court or before us that the statutory provisions of section 111 g as such cannot be made to govern the present lease which was executed in the year 1870. It was however strongly argued that the amendment made in 1929 to section 111 g of the Act embodies a principle of justice, equity and good companyscience and numberwithstanding section 2 of the Act, that principle was applicable in this case and there can be numberforfeiture unless numberice in writing to the lessee of his intention to determine the lease by the lessor bad been given. It is axiomatic that the companyrts must apply the principles of justice, equity and good companyscience to transactions which companye up before them for determination even though the statutory provisions of the Transfer of 1016 Property Act are number made applicable to these transactions. It follows therefore that the provisions of the Act which are but a statutory recognition of the rules of justice, equity and good companyscience also govern those transfers. If, therefore, we are satisfied that the particular principle to which the legislature has number given effect by the amendment to section 111 g did in fact represent a principle of justice, equity and good companyscience, undoubtedly the case will have to be decided in accordance with the rule laid down in the section, although in express terms it has number been made applicable to leases executed prior to 1929 or even prior to the Transfer of Property Act companying into force. The main point for companysideration - thus is whether the particular provision introduced in sub-section g of section 111 of the Transfer of Property Act in 1929 is but a statutory recognition of a principle of justice, equity and good companyscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is number based on any well established principles of equity. The High Court held, and we think rightly, that this provision in sub-section g of section III in regard to numberice was number based upon any principle of justice, equity and good companyscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good companyscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 g of the Act is companycerned, the insistence therein that the numberice should be given in writing is intrinsic evidence of the fact that the formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does number companycern itself with mere forms or modes of procedure. If the purpose of the rule as to numberice is to indicate the intention of the lessor to 1017 determine the lease and to avail himself of the tenants breach of companyenant it companyld as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a chancery judge. The requirement as to written numberice provided in the section therefore cannot be said to be based on any general rule of equity. That it is number so is apparent from the circumstance that the requirement of a numberice in writing to companyplete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamended sub-section g of section 1 1 1. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good companyscience are number such a variable companymodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one companytained in sub-section g as it stood before 1929, and to leases executed after 1st April, 1930, the principle of equity is the one stated in the sub- section as it number stands. Question may also be posed, whether according to English law a numberice is a necessary requisite to companyplete a forfeiture. The English law on the subject is stated in Foas General Law of Landlord and Tenant 7th edition at page 316 in these terms - In numbercase can the lessee take advantage of the proviso for re-entry in order to avoid the lease, even where it is in the form number that the lessor may reenter, but that the term shall cease, or that the lease shall be void for all purposes, or absolutely forfeited for expressions of this kind only mean that the tenancy shall determine at the option of the lessor This has been usually expressed by saying that the lease is voidable and number void but the true principle appears to be that the lease does become void to all intents and purposes, though this is subject to the companydition that the party who is seeking to set up its invalidity 1018 is number himself in default, for otherwise he would be taking advantage of his own wrong. It follows that where the proviso makes the lease void, the landlord must, in order to take advantage of it, do some unequivocal act numberified to the lessee, indicating his intention to avail himself of the option given to him. The service upon the lessee in possession of a writ in ejectment is sufficient. The Law of Property Act, 1925, by section 146 has companysolidated the law in England on this subject. The provision with regard to the giving of numberice before a right of re-entry accrues to the landlord is expressly excluded by sub-section 11 in cases of re-entry on forfeiture for number- payment of rent. In England it is number necessary in case of number-payment of rent for a landlord to give numberice before a forfeiture results. It cannot, therefore, be said that what has been enacted in sub-section g of section II 1 is a matter which even today in English law is companysidered as a matter of justice, equity and good companyscience. In English law the bringing of an action which companyresponds to the institution of a suit in India is itself an act which is definitely regarded as evidencing an intention on the part of the lessor to determine a lease with regard to which there has been a breach of companyenant entitling the lessor to re-enter vide Toleman v. Portbury and Prakashchandra Das Rajendranath Basu 2 . In India there is a substantial body of judicial authority for the proposition that in respect of leases made before the Transfer of Property Act forfeiture is incurred when there is a disclaimer of title or there is number-payment of rent. Any subsequent act of the landlord electing to take advantage of a forfeiture is number a companydition precedent to the right of action for ejectment. The bringing by a landlord of a suit for ejectment is simply a mode of manifesting his election. The principle of these cases rests upon the ground that the forfeiture is companyplete when the breach of the companydition or the denial of title occurs. But as it is left to the lessors option to take advantage of it or number, the L.R. 6 Q.B. 245. 2 1931 58 cal. 1359. 1019 election is number a companydition precedent to the right of action and the institution of the action is a sufficient manifestation of the election. The same principle is applied for actions for relief on the ground of fraud. vide Padmabhaya v. Ranga 1 Korapalu v. Narayana 2 . In Rama Aiyangar v. Guruswami Chetty 3 ,it was saidthat as the lease was number governed by the Transfer of Property Act, the institution of the suit was a sufficient determination of the lease and numberother previous act determining the same such as a numberice to quit was necessary for maintaining the action. The same view was expressed in Venkatachari v. Rangaswami Aiyar 4 . In Venkatarama Aiyar v. Ponnuswami Padayachi 5 , it was observed that the forfeiture will number be produced merely by the unilateral act of ceasing to companyply with the companyditions upon which the property is held, but it must involve also some expression of intention to enforce the forfeiture on the part of the lessor. In other words, the lessee cannot by his unilateral act terminate the lease, and cannot take advantage of his own wrong. That is an intelligible principle and is based on a maxim of equity. But the defaulting lessee cannot claim the benefit of a numberice in writing to companyplete the forfeiture he has incurred. The lessor has to simply express an intention that he is going to avail of the forfeiture and that can be done by the filing of a suit, as in English law, in all cases number governed by the Transfer of Property Act. Again in Ramakrishna Mallaya v. Baburaya 6 , it was said that in an ejectment suit based on leases executed prior to the Transfer of Property Act, numberact on the part of the landlord showing that he elected to take advantage of the forfeiture for number-payment of rent was necessary. The companytrary view expressed in Nourang Singh v. Janardan Kishor 7 , that the institution of a suit for ejectment companyld number be regarded as a requisite act to show the intention of a 1 1911 I,L.R. 34 Mad. 161. 2 1915 I.L.R. 38 Mad. 445. 3 1918 35 M.L.J. 129. 4 1919 36 M.L.J. 532. A.I.R. 1935 Mad. 918. 6 1914 24 I.C. 139. 7 1918 I.L.R. 45 Cal. 469, 1020 landlord to determine a lease within the meaning of section 111 g , was dissented from in Prakashchandra Das v. Rajendranath Basu 1 and it was said that there is numberspecial reason why the lessors election must be made at some time prior to the institution of a suit and that it was difficult to find a raison detr for the view that the cause of action has number companypletely accrued if the election is made at the moment when the suit is instituted, i.e., the moment the plaint is presented. The cause of action for the suit can arise simultaneously with the presentation of a plaint. In our opinion the provision as to numberice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is number based on any principle of justice, equity or good companyscience and cannot govern leases made prior to the companying into force of the Transfer of Property Act, 1882, or to leases executed prior to 1st April, 1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing -at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach. On numberprinciple of equity is a tenant entitled to a numberice in writing telling him that the lease has been determined. The High Court was therefore right in the view that it took of the matter and there are numbervalid reasons for taking a companytrary view. Considerable reliance was placed by Mr. Daphtary on the decision of Chandrasekhara Aiyar J. sitting singly in the case of Umar Pulavar v. Dawood Rowther 2 , wherein the learned Judge said that section 111 g as amended in 1929 embodied a principle of justice, equity and good companyscience and must be held to govern even agricultural leases and where there was a forfeiture by denial of the landlords title, a numberice in writing determining the lease was necessary. it was there observed that the principle so embodied 1 1931 I.L.R. 58 Cal. 1359. A.I.R. 1947 Mad. 68. 1021 in the sub-section as a result of the amendment becomes, so to say, a principle of justice, equity and. good companyscience. The learned Judge for this view placed reliance on the decision in Krishna Shetti v. Gilbert Pinto , in which it was said that the Transfer of Property Act was framed. by eminent English lawyers to reproduce the rules of English law, in so far as they are of general. application and rest on principle as well as authority and its provisions are binding on us as rules of justice, equity and good companyscience. With respect, we are companystrained to observe that this is too broad a statement to make. It seems that the attention of the learned judges was number drawn to the fact that the provision as to numberice for determining a lease for numberpayment of rent was number a part of the English law. It also does number seem to have been fully appreciated that the rule enunciated in sub-section g of section 111 prior to its amendment in 1929 and which still governs leases executed before 1st April, 1930, OD the reasoning of the decision would also be a rule of justice, equity and good companyscience and according to it the institution of a suit for ejectment would be sufficient indication on the part of the landlord for determination of the lease and a numberice in writing as required by the amended section would number be a prerequisite for institution of such a suit. In our judg- ment, this case was wrongly decided and we are unable to support it. As pointed out by Napier J. in Krishna Shetti v. Gilbert Pinto 1 , the companyrts should be very careful in applying statutory provisions and the assistance of the Transfer of Property Act as a guide on matters which have been excluded from the purview of the Act by express words should number be invoked, unless the provisions of the Act embody principles of general application. Mr. Daplitary also placed reliance on certain observations companytained in the Full Bench decision Brahmayya v. Sundaramma 1 . There it was said that although section 106 of the Transfer of Property Act does number 1 1919 I.L.R. 42 Mad. 654. A.I.R. 1948 Mad. 275. 1022 apply to leases for agricultural purpose by virtue of section 117 of the Act, nevertheless the rules in section 106 and in the other -sections sections 105 to 11 6 in Chapter V of the Act are founded upon reason and equity and they are the principles or English law and should be adopted as the statement of the law in India applicable also to agricultural leases. In our opinion, the above statement is again formulated in too wide a language. Section 105 gives a statutory definition of the word lease. It enunciates numberprinciple of equity. The relation of lessor and lessee is one of companytract and in Bacons Abridgement a lease is defined as a companytract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other companysideration on the other. The statute has given a more companyprehensive definition of the term. Section 107 makes registration of a lease companypulsory. This section again does number companycern itself with any princi- ple of justice or equity. Section 108 j enacts that the lessee may transfer absolutely by way of mortgage or sublease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The law in India and England on this subject is number the same and it cannot be said that this sub- section enacts or enunciates any general principle of equity. Parts of sections 109, 1 10 and Ill companytain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. In our judgment, therefore, the statement in this decision that sections 105 to 116 of the Transfer of Property Act are founded upon principles of reason and equity cannot be accepted either as companyrect or precise. Of companyrse, to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good companyscience they are applicable also to cases number governed by the Act. Reference was also made to the decision of the Bombay High Court in Tatya Savla Sudrik v. Yeshwanta Kondiba Mulay 1 where it was said that the 1 1950 52 Bom. L.R. 909. 1023 principle embodied in section 111 g of the Transfer of Property Act that in the case of forfeiture by denial of landlords title a numberice in writing determining them lease must be given is a principle of justice, equity and good companyscience which must be held to govern even agricultural leases. In that case it was companytended that following upon forfeiture which had been incurred a suit was filed by the plaintiffs in eviction and numberhing more needed to be done by the plaintiffs. For this companytention reliance was placed on two earlier decisions of the Bombay High Court, Venkaji Krishna Nadkarni v. Lakshman Devji Kandar 1 and Vidyavardhak Sang Co. v. Avvappa 2 . This companytention was negatived in view of the decision of Chandrasekhara Aiyar J. above referred to, and also in view of a binding decision of a Division Bench of that companyrt in Mahiboobkhan Muradkhan v. Ghanashyam Jamnaji 3 . The learned Chief Justice in the judgment under appeal has explained the distinction between the present case and that case and has number followed his own earlier decision in arriving at his companyclusions here. With respect we think that that decision did number state the law on the point companyrectly. Under English law the institution of a suit for ejectment has always been companysidered an unequivocal act on the part of the landlord for taking advantage of the default of the tenant and for enforcing the forfeiture in case of number-payment of rent, and even in other cases except where statutory provisions were made to the companytrary. Reference was also made to the observations of their Lordships of the Privy Council in Aditya Prasad v. Ramratan Lal 1 . Their Lordships dealing with the question whether a certain document created a charge upon a village observed that the appellant companyld number redeem it without paying both the mortgage debt and the amount subsequently raised and it was said that the provisions of the Transfer of Property Act on the point were identical with the principles of justice, equity and good companyscience. The observation made in that case must be limited to that case and cannot be 1 1896 I.L.R 20 Bom, 354 F.B. 2 1925 27 Bom, L.R. 1152. Unreported. 4 1930 57 I.A. 173. 1024 held as applicable to all cases irrespective of the nature of the provisions involved. Similar observations are companytained in another decision of their Lordships of the Privy Council in Muhammad Raza v. Abbas Bandi Bibi 1 , which companycerned the provisions of section 10 of the Transfer of Property Act which recognizes the validity of a partial restriction upon a power of disposition in the case of a transfer inter vivos. It was held that there was numberauthority that a different principle applied in India before the Act was passed and that under English law a partial restriction was number repugnant even in the case of a testamentary gift. Lastly, Mr. Daphtary drew our attention to the decision in Roberts v. Davey 2 , which relates to a licence. There it was observed that it was necessary for the licensor to have done some act showing his intention to determine the licence and until such act was shown, it companytinued in force. Littledale J. in this case said that the instrument was a mere licence to dig, and did number pass the land. An actual entry, therefore, was unnecessary to avoid it but by analogy to what is required to be done in order to determine a freehold lease which, by the terms of it, is to be void on the number-performance of companyenants, it seems to follow that, to put an end to this licence, the grantor should have given numberice of his intention so to do. The basis of the decision was that some act amounting to an exercise of the option had to be proved before the licence was determined. This decision therefore does number in any way affect the decision of the High Court in this case. On the question whether the tenant should have been given relief against forfeiture the High Court held that the matter was one of discretion and both the lower companyrts had exercised their discretion against the appellant and that being so, unless they were satisfied that the discretion was number judicially exercised or was exercised without proper materials they would number ordinarily interfere with it in second appeal. It was said that the number-payment in this case seems to have 1 1932 59 I.A. 236. 2 110 E.R. 606. 1025 become chronic and that this was number a case for the exercise of equitable jurisdiction. Mr. Daphtary companytended that the High Court failed to appreciate the rule applicable for the exercise of the discretion in such cases and that the rule is that if at the time relief is asked for the position has been altered so that relief cannot be given without causing injury to third parties relief will be refused, but if that position is number altered so that numberinjustice will be done there is numberreal discretion and the companyrt should make the order and give the relief. Reference was made to the decision of Page J. in Debendralal Khan v. F. M. A. Cohen 1 , wherein it was said that the companyrt numbermally would grant relief against forfeiture for number-payment of rent under section 114 of the Transfer of Property Act and that if the sun required under the section was paid or tendered to the lessor at the hearing of the suit the companyrt has numberdiscretion. in the matter and must grant relief to the tenant. We do number think that the learned Judges intended to lay down any hard and fast rule. Indeed the learned Judge proceeded to observe as follows- In exercising the discretion with which it is invested under section 114 a companyrt in India is number bound by the practice of a companyrt of Chancery in England, and I am number disposed to limit the discretion that it possesses, Those who seek equity must do equity, and I do number think merely because a tenant companyplies with the companyditions laid down in section 114 that he becomes entitled as of right to relief In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the companyduct of the parties and the difficulties to which the landlord. has been put should be weighed against the tenant, This was the view taken by the Madras High Court in Appaya Shetty v. Mohammad Beari 2 , and the matter was discussed at some length. We agree with the ratio of that decision. It is a maxim of equity that a person 1 1927 I.L.R. 54 Cal. 485. 2 1916 I.L.R, 39 Mad. 834. 1026 who companyes in equity must do equity and must companye with clean hands and if the companyduct of the tenant is such that it disentitles him to relief in equity, then the companyrts hands are number tied to exercise it in his favour. Reference in this companynection may also be made to Ramakrishna Mallya v. Baburaya 1 , and Ramabrahmam v. Rami Reddi 2 . The argument of Mr. Daphtary that there was numberreal discretion in the companyrt and relief companyld number be refused except in cases where third party interests intervene is companypletely negatived by the decision of the House of Lords in Hyman v. Rose 3 . Relief was claimed in that case under the provisions of section 14 2 of the Conveyancing Act, 1881, against forfeiture for breaches of companyenant in the lease. The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former companydition at the end of the term and make full restitution. It was argued that the matter was one of discretion and the companyrt should lean to relieve a tenant against forfeiture and if full recompense can be made to the landlord the relief should be granted. Lord Loreburn in delivering the opinion of the House observed as follows- I desire in the first instance to point out that the discretion given by the section is very wide. The companyrt is to companysider all the circumstances and the companyduct of the parties. Now it seems to me that when the Act is so express to provide a wide discretion, meaning, numberdoubt, to prevent one man from forfeiting what in fair dealing belongs to some one else, by taking advantage of a breach from which he is number companymensurately and irreparably damaged, it is number advisable to lay down any rigid rules for guiding that discretion. I do number doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard 1 1914 24 I.C. 139. A.I.R. 1928 Mad. 250. 3 1912 A.C. 623. 1027 an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have numberhere been enacted. It is one thing to decide what is the true meaning of the language companytained in an Act of Parliament. It is quite a different thing to place companyditions upon a free discretion entrusted by statute to the companyrt where the companyditions are number based upon statutory enactment at all. It is number safe, I think, to say that the companyrt must and will always insist upon certain things when the Act does number require them, and the facts of some unforeseen case may make the companyrt wish it had kept a free hand. With great respect we think that the observations cited above companytain sound principles of law. We are, therefore, unable to accede to the companytention of Mr. Daphtary that though section 114 of the Transfer of Property Act companyfers a discretion on the companyrt, that discretion except in cases where third party interests intervene must always be exercised in favour of the tenant irrespective of the companyduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in companyrt. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good companyscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the companyrt of appeal on a previous occasion.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 175 of 1951. Appeal by Special Leave from the Order and Decree dated the 30th March, 1951, of the High Court of Judicature at Patna Ramaswami and Rai JJ. in Miscellaneous Appeal No. 19 of 1951 arising out of the Order dated the 18th December, 1950, of the Court of the Additional Sub-Judge Second at Gaya in Title Suit No. 47 of 1950. C. Chatterjee Rameshwar Nath, with him for the appellant. C. Setalvad Attorney-General for India, and Mahabir Prasad, Advocate- General of Bihar B. J. Umrigar with them for the respondent. 1953. February 3. The Judgment of the Court was delivered by MAHAJAN - J. This appeal by special leave arises out of an application made by the State of Bihar against the Gaya Electric Supply Co. Ltd. under section 34 of the Indian- Arbitration Act for stay of proceedings in a suit filed by the companypany on 28th September, 1950. The facts relevant to this enquiry are these. A licence of or the supply of electric energy in the town of Gaya was obtained by one Khandelwal in the year 1928 under the Indian Electricity Act, 1910. With the required sanction of the Government the licence was transferred to the companypany in 1932. By a numberification dated 23rd June, 1949, the licence was revoked by the Government with effect from 9th July, 1949. Thereupon the companypany filed a suit against the State for a declaration that the revocation of the licence was arbitrary, mala fide and ultra vires. During the pendency of the suit negotiations started between the companypany and the State for a settlement of the dispute and ultimately on 28th October, 1949, a deed of agreement was arrived at between them. The effect of the agreement and the companyrespondence referred to therein was substantially as follows - That the companypany would withdraw the suit No. 58 of 1949 unconditionally on 25th October, 1949. That within three days of the withdrawal of ,the suit the State of Bihar would make an advance payment of rupees five lakhs to the companypany, and, simultaneously the companypany would formally hand over the possession of the undertaking to an authorized officer of the Government. That both parties will make their respective valuations within three months of talking over the undertaking and any balance of money found due to the companypany as per Government valuation will be paid to the companypany and in case of overpayment the excess paid to the companypany on account of the on account -payment of rupees five lakhs will be refunded to the, Government. That in the case of any difference or dispute between,the parties over the payment of the balance which may be found due after valuation such dispute shall be submitted to the-sole arbitration of a single arbitrator who should be a high government officer of the provincial government of rank equal to or higher than a Divisional Commissioner and his award shall be binding and final on both parties. The arbitration clause is companytained in a letter dated 13th October, 1949, and was substantially accepted by the companypany in its letter dated 17th October, 1949. As set out by the State Government in its application under section 34, it runs as follows In the case of any difference or dispute between the parties over the valuation as arrived at by the Government and that arrived at by the companypany, such difference or dispute, including the claim for additional companypensation of 20 shall be referred to arbitration In pursuance of the agreement the respondent took over the undertaking on 28th October, 1949, and also made a payment of rupees five lakhs to the companypany. On the 19th January, 1950, the companypany sent a statement of valuation of the assets amounting to RS. 22,06,072, to the Chief Electrical Engineer, Bihar. The Chief Electrical Engineer characterized the valuation of 22 lakhs by the companypany as fantastic and stated that according to a rough valuation the amount would be approximately five lakhs and that the final valuation would be settled after the companypany -had furnished a detailed history of the plants and machineries. The companypany declined to give any further details and stated that time was of the essence of the. companytract and it would be extended from 28th January, to 15th February, 1950 On 6th April, 1950, the Chief Electrical Engineer intimated that the valuation amounted to Rs. 6,56,221. No reply to this letter was received and the State Government intimated to the companypany that as difference and dispute had arisen relating to valuation, Mr. M. S. Rao, C.S. -was being appointed as sole arbitrator to decide the dispute. On 28th September, 1950, the companypany instituted the suit, the subject-matter the application for stay, after necessary numberice under section 80 of the Code of Civil Procedure. In the plaint it was alleged ,that as the State Government had failed and neglected to make its valuation or to make payment to the companypany by -the 15th March, 1950, it companymitted a breach of the agreement and by reason of this breach the companypany had rescinded the agreement and had forfeited the sum of five lakhs paid as advance by the State. The companypany prayed inter alia for the reliefs of declaration that the, electrical undertaking belonged to them, for damages, for appointment of receiver and for injunction. On the 9th October, 1950, the State Government filed the present appli- cation under section 34, of the Indian Arbitration Act. It was stated therein that the companypany had with a, dishonest and mala fide motive and with a view to avoid the decision of the matter in dispute in arbitration instituted the suit on incorrect and false allegations. that the arbitration agreement was still subsisting and valid and binding on the parties and companyld number be taken as having been rescinded as alleged by the companypany, that the cause of action as alleged in the plaint being numbercompliance with the agreement the suit arose out of and related to the agreement and was companyered by the arbitration clause and that the State Government was ready and willing to have the dispute settled by arbitration. The companypany denied the allegations of mala fides and pleaded that the arbitration clause was numberlonger in existence and that even assuming it to be in existence, the suit was in numberway companynected with the same and it was companytended that the suit should number be stayed. The subordinate judge held that the suit was numberin respect of any matter agreed to be referred, and that the companyrt had numberjurisdiction to stay the proceedings. In the result the stay application was dismissed. Against this order the State Government appealed to the High Court. The High Court held that the dispute in the suit was one which arose out of or was in respect of the agreement and that the question in the suit was directly within the scope of the arbitration clause. By an order of this companyrt dated 22nd May, 1951, the companypany was granted special leave under article 136 1 of the Constitution. Section 34 of, the Indian Arbitration Act runs thus - Where any party to an arbitration companyment Cost any legal proceedings against any other party to the agreement in respect of any matter agreed to be ,referred, any party to such legal proceedings may, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is numbersufficient reason why the matter should number be referred in accordance with the arbitration agreement and that the applicant was, at ,the time when the proceedings were companymenced, and still remains, ready and willing to do all things necessary to the proper companyduct of the arbitration, such authority may make an order staying the proceedings. From the language of the section it is quite clear that the legal proceeding which is sought to be stayed must be in respect of a matter which the parties have agreed to refer and which companyes within the ambit of the arbitration agreement. Where, however, a suit is companymenced as to a matter which lies outside the submission, the companyrt is bound to refuse a stay. In the words of Viscount Simona L. C. in Heyman v. Daruins Ltd 1 . the answer to the question whether a dispute falls within an arbitration clause in a companytract must depend on a what is the dispute, and b what disputes the arbitration clause companyers. If the arbitration agreement is broad and companyprehensive and embraces any dispute between the parties in respect of the agreement, or in respect of any provision in the agreement, or in respect of anything arising out of it, and one of the parties seeks to avoid the companytract, the dispute is referable to arbitration if the avoidance of the companytract arises out of the terms of the companytract itself. Where, however, the party soaks to avoid the companytract for reasons dehors it, the arbitration clause cannot be resorted to as it goes along with other terms of the companytract. In other words, a party cannot rely on a term of the companytract 1 1942 A.C. 356, to repudiate it and still say the arbitration clause should number apply. If he relies upon a companytract, be must, rely on it for all purposes . Where, however, an arbitration clause is number so companyprehensive and is number drafted in the broad language which was, used in the House of Lords,case, namely in respect of any agreement, or in respect of something, arising out of it, that proposition does number hold good. The arbitration clause is a written submission agreed to by the parties in a companytract and like -every written submission to arbitration must be companysidered according to its language and in the light of the circumstances in which it is made. Now as regards the first question, viz., what is the present dispute about, the answer is to be gathered from paragraphs 14 to 17 of the plaint. It is averred therein that the Government of Bihar companymitted breach of the agreement and failed to make any, valuation of the undertaking or pay the balance of the companypensation money, that time being of the essence of the companytract, the defendant failed and neglected to companyplete the valuation within the time originally fixed or the extended time, and that by reason of the breach of companytract the plaintiff rescinded the agreement and forfeited the sum of rupees five lakhs and that it is entitled to companypensation for the wrongful deprivation of the use of its property. No claim has been made in the plaint for the valuation of the undertaking or for the payment of any companypensation for the undertaking on the other hand, the claim in the suit is founded on the rescission of the agreement companytaining the arbitration clause and on a breach of that agreement. These are matters which may well be said to arise out of the agreement and if the arbitration clause was broadly worded and stated that all disputes arising out of the agreement would be referred to arbitration, it companyld then probably have been said that the scope of the suit was within the ambit of the arbitration clause, but the clause here is differently worded. The clause here is that if any difference. or dispute arises between the parties over the payment of the balance which may be found due after valuation such dispute shall be submitted to the sole arbitration of a single arbitrator. The scheme of the agreement is that the Government was to make a valuation as laid down in the Indian Electricity Act within three, months of taking over the undertaking and any balance of money found due to the companypany as per Government valuation was to be paid by the Government, and in case of over-payment, the excess paid to the companypany on account of the on account payment of rupees five lakhs mentioned in paragraph 1 had to be refunded to government. In the case of any difference between the parties over the valuation as arrived at by the Government and that arrived at by the companypany, such difference or dispute, including the claim for additional companypensation of twenty per cent. had to be referred to arbitration a scope of it is arbitration clause is a very narrow one. It only companyfers jurisdiction on the arbitrator on the question of valuation of the undertaking pure and simple and does number say that all disputes arising out of the agreement or in respect of it will be decided by arbitration. Questions relating to the breach of companytract or its rescission are outside the reach of this clause. The arbitrator has number been companyferred the power by this clause to pronounce on the issue whether the plaintiff was justified in claiming that time was of the essence of the companytract and whether the State Government companymitted a breach of the companytract by number making a valuation within the time specified. This clause is therefore numberanswer to the companypanys querry Show me that I have agreed to refer the subject-matter of the suit to an arbitrator. Besides this clause in the agreement there is numberhing else which can deprive the companyrt of its jurisdiction to decide the plaintiffs suit as brought. Ramaswami J., with whom Rai J. companycurred, held that upon a perusal of the term, of the companytract and of the companyrespondence it was obvious that numberstipulation was made that the companypensation money should be paid within the period of three months, that on the companytrary, the intention of the parties that the Government would pay companypensation money only after the award had been made by the arbitrator. Now this is the very point which would be in issue in the suit itself, and the learned Judge was in error in companysidering and deciding this point in this enquiry under section 34. The validity of the plaintiffs companytention in the suit cannot be gone into by that companyrt exercising jurisdiction under this section as its function is a very limited one. The only point in such cases to be decided is whether the claim which is brought- whether it is good, bad or indifferent companyes within the submission to arbitration. It may be that there are grounds upon which the defendant would be able to satisfy the proper tribunal that the plaintiffs claim was frivolous and vexatious, but those companysiderations, as pointed out by Banks J in Monro v. Bognor Urban Council 1 , are material only if the question to be companysidered is whether the case made was a frivolous and vexatious one and ought to have had numberweight at all upon the question of what the plaintiffs claim in fact was and one can only find out what his claim is by looking at the plaint. The learned Judges in the High Court seem to have thought that the arbitration clause here had been drafted broadly and that all disputes arising out of or in respect of the agreements were referable to arbitration. Their reliance on the decision of the Calcutta High Court in Harinagar Sugar Mills Ltd. v. Skoda India Ltd. in support of the decision indicates the error. In that case the arbitration clause was drafted in a companyprehensive language and stated that a dispute arising out of the agreement had to be referred to arbitration. Their reference to the case of Governor- General in Council v. Associated Livestock Farm Ltd. 3 also shows that they were under the same erroneous impression. In this case the arbitration clause was in these terms - 1 1915 3 K.B. i67. 2 1937 41 C.W.N. 563. A.I.R. 1948 Cal, 230, Any dispute or difference arising out of the companytract shall be referred to the arbitration of the officer sanctioning the companytract whose decision shall be final and binding. It is obvious that these decisions companyld have numberrelevance to the arbitration clause as drawn up in the present case.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 121 of 1951. Appeal from the Judgment and Decree dated 15th December, 1948, of the High Court of Judicature at Madras Subba Rao and Pancha,Pakesa Ayyar JJ. in Appeal No. 474 of 1945 arising out of the Judgment and Decree dated 3 1 st July, 1945,, of the Court of the Subordinate Judge of Tenali in Original Suit No, 24 of 1944. 1002 C. Setalvad, Attorney-General for India, N. Subrahmanyam and K. R. Chowdhury, with him for the appellants. K. S. Krishnaswamy Aiyangar M. Seshachalapathi, with him for the respondents. 1953. February 26. The Judgment of the Court was delivered by DAS J.-This appeal arises out of a suit for recovery of possession of certain immovable properties measuring about 93 acres and 33 cents which are more fully and particularly set out and described in Schedule A to the plaint. That suit was instituted by Konduru Venkatapayya, respondent No. 1, in his capacity as the Executive Officer appointed by the Government on the 15th July, 1942, in respect of Sri Somasekharaswami Temple at Kotipalle, hamlet of Donepudi, a temple numberified on the 26th October, 1939, under the provisions of Chapter VIA of the Madras Hindu Religious Endowments Act Act 11 of 1927 . The suit was instituted in forma pauperis. The claim for ejectment of the defendants was founded on the allegation that the properties belonged to the temple, having been given to it by an Inam grant made in 1770 A.D. by Janganna Rao, the then Zamindar of Rachur, that the defendants I to 16 and their predecessors were Archakas rendering Nitya Naivedya Deeparadhana services and as such were in possession of the properties for and on behalf of the temple and that defendants 17 to 43 were the lessees under the Archakas and that the defendants I to 16 were wrongfully claiming the properties as their own and the other defendants claimed to be in possession of portions of the properties as their lessees. The plaintiff instituted this suit after having given registered numberice to the defendants to make over possession of the suit properties to the plaintiff as the Executive Officer of the temple but the defendants were still companytinuing in such possession in spite of such numberice. The defendants filed written statements raising various companytentions 1003 and issues to which it is number necessary number to refer. The learned Subordinate Judge by his judgment dated the 31st July, 1945, decreed the plaintiffs suit. Some of the defendants preferred an appeal to the High Court but the High Court dismissed the same. Those defendants obtained leave of the High Court to appeal to the Federal Court and that appeal has number companye up for hearing before us. The only two points which were raised before us, as before the High Court, are 1 whether the Inam grant was made in favour of the temple or whether the grant was made in favour of the Archakas burdened with the duties of service, and 2 what right did the grant companyfer on the grantee-whether it was a grant of the land itself or only of the melvaram interest in the properties. Re l.---It is urged by the learned Attorney-General that as the defendants and their predecessors have been in possession of the properties from ancient times it should be presumed that their possession originated in some lawful title companyferred on them. In short, the companytention, founded on several judicial decisions, is that the principle of a lost grant should be applied in this case in favour of the Archakas who have been in quiet possession for over a century and a half. There is numberdoubt, on the authorities, that a presumption of an origin in some lawful title may in certain circumstances be made to support possessory rights long and quietly enjoyed where numberactual proof of title is forthcoming but it is equally well established that that presumption cannot be made where there is sufficient evidence and companyvincing proof of the nature of the grant and the persons to whom it was made. It is true that the original grant is number forthcoming but turning to the evidence we find two documents which appear to us to be decisive on the question of title. The first one is Exhibit P/3, a companyy of the relevant entries in the Inam Register of 1860. This Inam Register was prepared after enquiries made by the Inam Deputy Collector and the statements furnished at that time by the then Archakas were taken into companysideration for 1004 preparing the register. The companyy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Exhibit D/3. In the Inam Register Ex. P/3 under the several companyumns grouped under the general heading Class extent and value of Inam this Inam is classified in companyumn 2 as Devadayam. In companyumn 3 are set out the survey numbers together with the word Dry indicating the nature of the land companyprised within the survey numbers. The areas are set out in companyumn 5. The heading of companyumn 7 is where numbersurvey has been made and numberassessment fixed by Government, the cess paid by the ryot to the Inamdar, or the average assessment of similar Government land should be entered in companyumn 7 . Under this heading are set out the amounts of respective assessments against the three survey numbers totalling Rs. 198139. We then pass on the next group of companyumns under the general heading Description, tenure and documents in support of the Inam . Under companyumn 8 description of Inam is entered the remark For the support of a Pagoda. Now kept up . The entry in companyumn 9 shows that the Inam was free of tax, i.e., sarvadumbala. Under companyumn 10 headed Hereditary, unconditional for life only or for two or more lives is mentioned Permanent . The name of the grantor as stated in companyumn 1 1 is Janganna Rao and the year of grant is fasli 1179, A.D. 1770. In companyumn 13 the name of the temple is set out as the original grantee. The name of the temple and the location of the temple are also set out under companyumns 16 and 17. Turning number to the statement Ex. D/3 caused to be written and filed by the then Archakas during the Inam Inquiry held in 1859-60 Sree Somasekharaswami Varu is given as the name of the Inamdar and the present enjoyer. The name of the temple is also set out under companyumns 3,5,6 and 12. Under the heading Income derived from the Inam whether it is sarvadumbala or jodi. lf jodi the amount in companyumn 13 is stated sarvadumbala Inam Cist according to the rate prevailing in the neighbouring fields Rs. 26631. This statement Ex. D/3 bears 1005 the signature of the Karnams and the witnesses. it will be numbericed that neither in the Inam Register Ex. P/3 number in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least -interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the gurant or and that in the face of this definite evidence and proof of the nature of the grant, numberpresumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against the appellants. Re 2.-The learned Attorney-General next companytends that, assuming that the Inam grant was made in favour of the temple, it was only a grant of melvaram interest and that the Archakas who have the kudivaram rights cannot be ejected. He relies strongly on an unreported judgment of the Madras High Court in Appeal No. 213 of 1942 The Board of Commissioners for the Hindu Religious Endowments, Madras Parasaram Veeraraghavacharyulu and others where it was held-- The records of the Inam settlement really companytain only one clear indication as to the precise extent of this grant. The statement at the Inam Inquiry, Exhibit V, upon which the decision of the Inam Commissioner was presumably based companytains a companyumn headed Income realised from the Inam sarvadumbala and in that companyumn we find the entry Rs. 14 sarvadumbala. On its face this entry seems to show that the income of the Inam was Rs. 14 free from all charges. We find, however, from the Inam Register, Exhibit IV, that the assessment of the Inam on the basis of the enjoyment of 16- 97 acres is also Rs. 14. This seems to indicate that the extent of the Inam was the amount of the assessment. It seems, therefore, that the decision must rest on the recital in Exhibit V that the income of the Inam 1006 companysists of Rs. 14, read along with the recital in Exhibit TV that the assessment on the land also companyes to Rs. 14. On these materials we companyfirm the findings of the learned District Judge, although we do number accept his reasoning, and hold that the grant is a grant of melvaram only. The facts of that case appear to us to be different from those in the present case. The Archakas in. that case were found to have the kudivaram rights from before the Inam grant was made. In the companyies of the Inam Register and Inam Statement filed in that case the Archakas were shown as the grantees and the present enjoyers of the Inam grant and the amount shown under the heading in companyumn 2 of the Inam register as the assessment was the same as the amount shown under companyumn 3 of the Inam Statement under the heading Income derived from Inam. In the case before us the Archakas are numberhere mentioned in either Exhibit P/3 or in Exhibit D/3, there is numberevidence that they had any title to kudivaram rights and finally the amount of assessment shown under companyumn 7 of the Inam register, Exhibit P/3, is Rs. 198139, whereas the amount shown as income derived from the Inam as shown in companyumn 13 of the Inam Statement, Exhibit D/3, is Rs. 26631. Apart from these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if number entirely, on the fact that the amount of assessment and the amount of income were the same and the companyclusion was drawn that the Inam grant companyprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow the reasoning. Whether the Inam companyprised the land itself, that is to say, both melvaram and kudivaram rights or only the melvaram rights, the entries had to be made in the Inam Register in the same form and even in the case of the grant of the land itself companyprising both the rights the amount of assessment had to be set out under companyumn 7 of the Inam Register for it is number 1007 suggested that a different form had to be used where the grant companyprised both the rights. It follows, therefore, that numberinference that the Inam -grant companyprised only melvaram rights can be inferred from the fact that under companyumn 7 only the amount of assessment is set out, and, therefore, the reasoning on which the decision relied on by the learned Attorney-General was founded cannot be supported as companyrect. Indeed, that decision has been dissented from by another Bench of the Madras High Court in Yelamanchili Venkatadri another v. Vedantam Seshacharyulu and others 1 . In the present case the High Court was, in our opinion, clearly right in preferring the last mentioned decision to the unreported decision mentioned above. Having regard to the different entries under the different companyumns in Exhibit P/3 and Exhibit D/3 there is numberescape from the position that this Inam grant in favour of the temple companyprised both the interests in the land. An argument was sought to be raised by the learned Attorney- General that the grantor Janganna Rao was only the Collector of the revenue and as such companyld number grant more than what he had got. Reference was made to the Kistna District Manual by Gordon Mackenzie but it appeared that the person therein mentioned was number the same grantor as we are companycerned with in this case and the point was number pursued and numberhing further need be said about it. Finally, the learned Attorney-General submits that these Archakas who were rendering services faithfully from generation to generation from ancient times should number, in equity, be ejected from the entire lands and that they should be allowed to remain in possession of the lands and be permitted to appropriate to themselves the expenses of the services and a reasonable remuneration and the rest of the income should be made over to the temple as its property. Reference was made to two unreported decisions of the Madras High Court in Appeal No. 218 of 1946 A.I.R. 1948 Mad. 72, 1008 Dandibhotla Kutumba Sastrulu v. Kontharapu Venkatalingam, and in Appeal No. 709 of 1944, Buddu Satyanarayana v. Dasari Butchayya, Executive Officer of the Temple of Sri Malleswaraswami Varu, China Pulivaram. In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if number legal, of the Archakas and to make some provision for protecting their rights, but those companysiderations appear to us to be entirely out of place in a suit for ejectment on proof of title. If the two decisions lay down, as it is companytended they do, that the principles which may have a bearing on a proceeding for framing of a scheme or for enforcing the scheme that is framed may be applied to a case of the kind we have number before us it will be difficult for us to uphold them either on authority or on principle. Further what is the companyduct of the Archakas defendants appearing on the record of this case ? Although they are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3. Such companyduct cannot but be regarded as disentitling them from any claim founded on equity.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 54 of 1953. Petition under Article 32 of the Constitution for a writ in the nature of habeas companypus. Jai Gopal Sethi and Veda Vyas S. K. Kapur, A. K. Datt, N. Chona, B. Pathnaik and A. AT. Sinha, with them for the petitioners. K. Daphtary, Solicitor-General for India Porus Mehta, with him for the respondents. 1953. March 12. The Judgment of the Court was delivered by the Chief Justice. PATANJALI SASTRI C. J.-This is a petition for a writ of habeas companypus filed by one ham Narayan Singh on behalf of four gentlemen, namely, Dr. S. P. Mukerjee, Shri N. C. Chatterjee, Pandit Nandial Sharma and Pandit Guru Dutt Vaid, who are the real petitioners in the case. These persons were arrested on the evening of the 6th March, 1953, and they are number being prosecuted for alleged defiance of an order prohibiting meetings and processions in the area in question, an offence punishable under section 188 of the Indian Penal Code. Their detention is sought to be justified on the basis of two remand orders, the one alleged to have been- passed by Mr. Dhillon, Additional District Magistrate, Delhi, at about 8 p. m. on the 6th March, 1953, and the other alleged to have been passed by the trying Magistrate at about 3 p. m. on the 9th March while adjourning the case on the representation made before him that a habeas pus petition was being moved in this Court. Various questions of law and fact have been argued before us by Mr. Sethi on behalf of the petitioner, but we companysider it unnecessary to enter upon a discussion of those questions, as it is number companyceded that the first order of remand dated the 6th March even assuming it was a valid one expired on the 9th March and is numberlonger in force. As regards the order of remand alleged to have been made by the trying Magistrate on the 9th March, the position is as follows-The trying Magistrate was obviously proceeding at that stage under section 344 of the Criminal Procedure Code, which requires him, if he chooses to adjourn the case pending before him, to remand by warrant the accused if in custody, and it goes on to provide Every order made under this section by a companyrt other than a High Court shall be in writing signed by the presiding Judge or Magistrate. The order of the Magistrate under this section was produced before us in companypliance with an order of this Court made on the 10th March, which directed the production in this Court as early as possible of the records before the Additional District Magistrate and the trying Magistrate together with the remand papers for inspection by Counsel for the petitioner. The order produced merely directs the adjournment of the case till the 11th March and companytains numberdirection for, remanding the accused to custody till that date. Last evening, four slips of paper were handed to the Registrar of this Court at 5-20 p. m. On one side they purport to be warrants of detention dated 6th March and addressed to the Superintendent of Jail, Delhi, directing the accused to be kept in judicial lock-up and to be produced in companyrt on the 9th March 1953. These warrants companytain on their back the following endorsements Remanded to judicial till 11th March, 1953 In a question of habeas companypus, when the lawfulness or otherwise of the custody of the persons companycerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were number produced, numberwithstanding the clear direction companytained in our order of the 10th March. The companyrt records produced before us do number companytain any order of remand made on the 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th. The Solicitor-General appearing on behalf of the Government explains that these slips of paper,which would be of crucial importance to the case, were with a police officer who was present in companyrt yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5-20 p. m. We cannot take numberice of documents produced in such circumstances, and we are number satisfied that there was any order of remand companymitting the accused to further custody till the 11th March. It has been held by this Court that in habeas companypus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and number with reference to the institution of the proceedings. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was numberorder remanding the four persons to custody. This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they companyceive to be their duty, must strictly and -scrupulously observe the forms and rules of the law.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 32 of 1953. Appeal from the Judgment and Decree dated the 12th March, 1951, of the High Court of judicature at Calcutta Harries J. and Banerjee J. in Appeal from Original Decree dated the 21st March, 1950, of the Calcutta High Court in its ordinary original civil jurisdiction in Suit No. 1112 of 1946. C. Mullick and A. K. Dutt for the appellant. Sankar Banerjee B. Das and S. N. Mukherji, with him for the respondent. 1953. November 26. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal is directed against a judgment and decree of an appellate bench of the Calcutta High Court dated the 12th of March, 1951, reversing, on appeal, the decision of a single Judge of that companyrt passed in Suit No. 1112 of 1946. The suit,. out of which this appeal arises, was companymenced by the Central National Bank Limited, the appellant before us, in the Original Side of the Calcutta High Court, for a declaration that the bank acquired the rights of a pledgee in respect of two blocks Of shares in two companypanies, to wit, the Indian Iron and Steel Company Ltd. and the Steel Corporation of Bengal Ltd. and was e entitled to sell the shares in enforcement of the pledge. There was a claim for recovery of possession of these shares and also for, damages alleged to have been suffered by the plaintiff by reason of wrongful denial of its title by the defendant Bank. The shares, to which the dispute relates, are 800 in number and admittedly they were the property of one Radhika Mohan Bhuiya, the defendant No. 2 in the suit. Sometime in February, 1946, Bhuiya agreed to sell these shares to one Dwijendra Nath Mukherjee for the price of Rs. 38,562-8-0. On 14th February, 1946, Bhuiya sent these shares along with the relative transfer deeds to the defendant bank with instructions to deliver over the share certificates and the transfer deeds to the purchaser, against payment of the entire companysideration money stated above. On the 18th of February following, the defendant bank directed one of its officers, to wit, Nilkrishna Paul, to see Mukherjee at his office and hand over to him the shares after receiving from him a pay order for the sum of Rs. 38,562-8-0 signed by the Punjab National Bank. In accordance with this direction, Paul went to the ,office of Mukherjee and saw him at his chamber at about 11 a.m. in the morning. Mukherjee asked for the shares, but Paul refused to make over the share certificates to him unless the pay order was given Mukherjee then said that he wanted to have a look at the shares and the transfer deeds just to satisfy himself that they were all right. After that Paul placed the shares and the transfer deeds on the table. Mukherjee examined the share certificates one after another and when he was about to leave the chamber along with the share certificates and the ranK transfer deeds, Paul raised an objection and asked him number to go away without giving him the pay order. Mukherjee then said to Paul I am going out to get the pay order it is ready. You take your seat I am companying. With these words Mukherjee went out of his chamber and did number return thereafter. It appears that he went straight to the office of the plaintiff bank and pledged the shares with it, taking an advance of Rs. 29,000 in terms of an agreement which was previously arrived at between them. What happened in substance was this Mukherjee gave a cheque for Rs. 100 with which an account in Ms name was opened for the first time with the plaintiff bank, and the advance of Rs. 29,000 was given to Mukherjee by way of overdraft on this current account. Mukherjee also executed a promissory numbere for the said amount in favour of the plaintiff. It is, the companymon case of the parties that Mukherjee has number been heard of since then and his present whereabouts are unknown. Coming number to Paul, the defendants, officer, after waiting vainly for Mukherjee he had numberother alternative but to companye back to his office and inform his superior officer of all that had happened. A companyplaint was then lodged with the police on behalf of the defendant bank. The cheque, which was given to the plaintiff by Mukherjee, was dishonored when it was presented for payment. The plaintiff bank thereupon wrote a letter to Mukherjee demanding payment of the loan at once and threatening to sell the shares in case of default. As numberreply came from Mukherjee, the plaintiff sold these shares through a broker named jalan. jalan took delivery of the shares and gave the plaintiff a cheque for Rs. 16,000 in part payment of the price. The payment of the cheque, however, was stopped and the police, who had already taken the matter in hand, took possession of the shares. As Mukherjee companyld number be traced, a criminal case was started against an alleged accomplice of his, named Shaw, but this proved unsuccessful and Shaw was acquitted. The defendant bank, who had paid the full price of these shares to Bhuiya, then presented an application to the Magistrate, praying that the shares might be returned to it on the ground of its being the owner thereof. On getting information of this application, the plaintiff bank instituted the present suit, the allegation in substance being that the plaintiff being the pledge of the shares was entitled, in law, to the possession thereof.As has been stated already, Bhuiya, having been paid off by the defendant bank, had numberfurther interest in the litigation. The fight was thus entirely between the two banks. It is number disputed that Mukherjee did number acquire any legal title to the shares. There was only an agreement for sale between him and Bhuiya, and under the terms of,the companytract the property in the shares companyld number pass to him till the price was paid. The plaintiff bank, therefore, Was number a pledgee of the shares from the real owner. It rested its claim entirely upon the provision of section 30 2 of the Indian Sale of Goods Act, the language of which is as follows - Where a person, having bought or agreed to buy goods, obtains, with the companysent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without numberice of any lien or other right of the original seller in respect of the goods shall have effect as if such lien or right did number exist. The plaintiffs case was that it received the shares by way of pledge in good faith and without numberice of any defect in the title of Mukherjee who had agreed to purchase these shares from Bhuiya and had actual possession of the same with the companysent of the seller. Consequently, the pledge would be effective under the provision of section 30 2 of the Sale of Goods Act in the same way as if the right of the original seller did number exist. The companytention of the defendant bank on the other hand was that Mukherjee was number in possession of the Shares with the companysent of the seller, number was the plaintiff a bona fide pledgee without numberice of thedefect of title. The whole companytroversy thus centeredround the point as to whether on the facts that transpired in evidence, the plaintiff bank was entitled to avail itself of the provision of section 30 2 of the Indian Sale of Goods Act. Mr. Justice Sarkar of the Calcutta High Court, who tried the suit, decided this question in favour of the plaintiff. The learned judge was of opinion that Mukherjee had obtained possession of the shares with the companysent of Bhuiya or rather his agent, the bank officer, within the meaning of section 30 2 , Indian Sale of Goods Act, and it was number at all material for purposes of this sub-section that the companysent was induced by fraud of Mukherjee or that his act amounted to an offence of larceny by trick according to English law. It was further found that the plaintiff acted in good faith without numberice of any defect of title and ,in view of these findings the trial judge decreed the plaintiffs suit. There was an appeal by the defendant against this judgment which was heard by a bench companysisting of Trevor Harries C. J. and Banerjee J. The learned judges allowed the appeal and reversed the judgment of the trial companyrt holding that the defendants agent never companysented to Mukherjees obtaining possession of the shares as buyer. There was numberintention to give delivery at all. It was Mukherjee who took the shares and bolted and his act was as much theft as if he had taken them out of Nilkrishna Pauls pocket. It is against this decision that the present appeal has companye before us at the instance of the plaintiff and the point for companysideration is, whether the view taken by the appellate bench of the High Court is right. Mr. Mullick, who presented the appellants case with companymendable fairness and ability, has argued before us that on the facts of this case the appellate companyrt ought to have held that the plaintiff did acquire the rights of a pledgee in respect to the disputed shares under the provision of section 30 2 , Sale of Goods Act. There is numberdispute, he says, that there was a valid companytract of sale regarding these shares between Bhuiya, the real owner, and Mukherjee and that the plaintiff was a bona fide pledgee from Mukherjee without numberice of any others rights has been found as a fact by the trial Judge and this finding has number been reversed in appeal. The only other thing necessary to entitle the plaintiff to claim the protection of section 30 2 of the Act is to show that Mukheriee obtained possession of the shares with the companysent of the seller or his agent, and it is on this point alone that the companyrts below have taken divergent views. It is argued by the learned companynsel that the word possession used in the section means numberhing else but physical custody and whether there was companysent of the owner or number has to be determined with reference to the 2definition of companysent as given in section 13 of the Indian Contract Act. If there was companysent in fact, it is immaterial that it was induced by fraud or misrepresentation and in the determination of this matter, numberprinciple of criminal law and much less the technicalities of the English criminal law should be imported. On the facts the learned companynsel argues that the defendants agent really companysented to part with the possession of the shares and allow Mukherjee to have them, although he was duped by the false promise given by Mukherjee which the latter never intended to keep. The propriety of the propositions of law put forward on behalf of the appellants has number been, for the most part,. companytroverted by Mr. Banerjee. who appeared for the defendant respondent. The dispute between them, as we shall presently see, is mainly on the point as to whether, on the facts of the case, it companyld be held that Mukherjee got possession of the shares with the companysent of the defendants agent. As, however, the points of law have been discussed in the judgments of the companyrts below and reference has been made by the learned Judges to a number of English cases turning upon analogous provisions in companynate statutes in England, we think it proper to express our views shortly on the points raised, just for the purpose of clearing up any doubt that might exist regarding the meaning and implication of the word companysent as has been used in section 30 2 of the Sale of Goods Act. The two principal questions that require companysideration are first, whether the companysent necessary under section 30 2 of the Sale of Goods Act must be a free companysent uninfluenced by fraud or false representation, and secondly, whether the existence of such companysent is negatived, as a matter of law, it a person of the requisite description mentioned in the section obtains possession of goods from the owner by trick or other deceitful means which makes his act punishable as a crime. There is numberdecision on these points by any High Court in. India and we have been referred to a number of cases decided by English companyrts where similar questions have arisen in regard to the provisions of section 25 2 of the English Sale of Goods Act and section 2 1 of the Factors Act which employ almost the same language with reference to dispositions made by a purchaser or mercantile agent who obtained possession of goods with the companysent of the real owner. It is neither necessary number desirable for our purpose to enter into a. detailed. discussion of the English cases that have been cited before us. We would only examine, where necessary, the salient principles upon which the leading pronouncements of the English judges purport to be based and see whether they throw any light on the questions that require companysideration in this case. We agree with the learned companynsel on both sides that the word companysent as used in section 30 2 of the Sale of Goods Act means agreeing on the same thinging the same sense as defined in section 13 of the Indian Contract Act. There is numberdefinition of companysent in the Sale of Goods Act itself, but section 2 15 of the Act definitely lays down that the expressions used and number defined in the Act, but which are defined in the Indian Contract Act, shall have the same meaning as. has been assigned to them in the latter Act. Section 14 of the Contract Act defines theexpression free companysent and a companysent is tree when it is number caused by companyrcion, under influence, fraud, misrepresentation or mistake. A companysent induced byfalse representation may number be free, but it can nevertheless be real, and ordinarily the effect of fraud or misrepresentation is to render a transaction voidable only and number void. If an innocent purchaser or pledgee obtains goods from the person in possession thereof, whose possessory right is, defeasible on the ground of fraud but had number actually been defeated at the time when the transaction took place, there is numberreason why the rights of such innocent purchaser or pledgee should number be protected. The, right in the possessor or bailee in such circumstances is determinable numberdoubt but so long as it is number determined it is sufficient to enable him to create tide in,, favour of an innocent transferee for value without numberice. This proposition is well recognised in English law and seems to us to be well founded on principle. In Cahn v. Pocketts Bristol Channel Steam Packet Company 1 , Collins J. made the following oftquoted observation - However fraudulent a person in actual custody may have been, in obtaining the possession, provided it does number amount to larceny by trick and however grossly he may abuse companyfidence reposed in him, or violate the mandate under which he got possession, he can, by his disposition, give a good title to the purchaser. The opinion of the learned judge in regard to the so- called exception where there is a larceny by trick has been the subject of much companyment both favourable and adverse in later cases as we shall see presently but the main proposition enunciated by him has never been disputed 2 . The law on this point has been thus summed up by Denning L. J. in Pearson v. Rose 3 The effect of fraud is as a rule only to make the transaction voidable and number void, and if,. therefore, an innocent purchaser has bought the goods before the transaction is avoided the true owner cannot claim them back. For instance, if a mercantile agent should induce the owner to pass the property to him by some false presence as by giving him a worthless cheque, or should induce the owner to entrust the property to him for display purposes, by falsely pretending that he was in a large way of business when he was number, then the owner cannot claim the goods back from an innocent purchaser who has bought them in good faith from the mercantile agent The companysent may have been obtained by fraud but, until avoided, it is a companysent which enables the Factors Act to operate. Thus obtaining possession of goods by false pretences does number exclude the operation of the Factors Act in 1 1899 1 Q.B. 643 at 659. Vide the cases referred to by Scrutton L. J. in Folks King 1923, I K.B. 282 at 301. 3 1950 2 All E.R. 1027 at 1032. England and in our opinion it does number exclude the operation of section 30 2 of the Sale of Goods Act in India. The position, however, is entirely different if the fraud companymitted is of such a character as would prevent there being companysent at all on the part of the owner to give possession of the goods to a particular person. Thus A might obtain possession of goods from the owner by falsely representing himself to be B. In such cases the owner can never have companysented to the possession of goods by A the so-called companysent being number a real companysent is a totally void thing in law. In Lake v. Simmons 1 Lord Haldane made the following observations while dealing with a similar point The appellant thought that he was dealing with a different person, the wife of Van der Borgh, and it was on that footing alone that he parted with the goods. He never intended to companytract with the woman in question. It was by deliberate fraud and trick that she got possession. There was number the agreement of her mind with that of the seller that was required in order to establish any companytractual right at all. The latter was entirely deceived as to the identity of the person with whom he was transacting. In circumstances such as these, I think that there was numbercon- sensus ad idem. The position, therefore, is that when the transfer of possession is voidable merely by reason of its being induced by fraud, which can be rescinded at the option Of the owner, the companysent which followed false representation is a sufficient companysent within the meaning Of section 30 2 of the Sale of Goods Act. But where the fraud induced an error regarding the identity of the person to whom or the property in respect of which possession was given, the whole thing is void and there is numberconsent in the sense of an agreement of two persons on the same thing in the same sense. The other question that requires companysideration is, whether it would make any difference in the application of the principles stated above if the fraud or 1 1927 A. C. 487, 500. deception, practised by a person in obtaining possession of goods from the owner, is of such a character as to make him guilty of a criminal offence ? Having regard to what has been said above, this question should number present any difficulty, had it number been for the fact that an amount of companyplexity has been introduced into the subject by reason of certain technical rules of the English criminal law. It is to be remembered that what section 30 2 of the Sale of Goods Act companytemplates is that the buyer, to whom the property in the goods sold has number passed as yet, must obtain possession of the goods with the companysent of the seller before he can give a title to an innocent purchaser or pledgee. There can be numberdispute that to establish companysent of the owner of the goods, it is his state of mind that is the only material thing for companysideration and number that of the receiver of the goods. Even if the owner was induced to part with the goods by fraudulent misrepresentation he must yet be held to have companysented to give possession and the fact that the receiver had a dishonest intention or a preconcerted design to steal or misappropriate the goods and actually misappropriated them, may make him liable for a criminal offence, but the companysent of the owner actually given cannot be annulled thereby. In order that a fraudulent receiver of goods must be punished criminally, the material thing is his dishonest intention but as was said by Bankes L. J. in Folkes v. King 1 , that is altogether immaterial for the purpose of determining whether there was companysent on the part of the owner of the goods under the Factors Act. The two companysiderations, observed the learned judge, should be kept entirely distinct. To allow the one to be defeated by companysideration of the other is in my, opinion to sweep away a great part of the protection which the Factors Act was intended to provide. The same ratio, in our opinion, applies in regard to the, provisions of the Sale of Goods Act. As has been said already, obtaining of goods by, false pretences does number negative companysent of the owner 1 1923 1 K.B. 282 at 297. of the goods for purposes of the English Factors Act. Even larceny by a bailee does number exclude companysent according to the English decisions. This means that if the owner allows an agent to have his goods on hire or for repair and the agent later on makes- up his mind to steal or misappropriate them and sell them to another, the agent may be guilty of larceny as bailee but the owners companysent to his possession companyld number be affected thereby. But curiously enough in English law a difference is made between larceny by bailee and larceny by trick and if in the illustration given above the agent instead of making up his mind subsequently to steal the goods had that dishonest intention at the very beginning when he got possession, he is guilty of larceny by trick and the possession in law is deemed to remain with the owner and he is regarded as taking without the owners companysent. This apparently involves a legal fiction, for although the goods are actually delivered over by the owner to the accused person, yet because of the trick companymitted by the latter the owner is still supposed to companytinue in possession of the goods and the accused is held guilty of larceny for taking possession of the goods against the will of the owner. Ordinarily, the offence of larceny by trick, according to the English law, can be companymitted in two ways first, where the owner of goods, being induced thereto by trick, voluntarily parts with the possession of goods in favour of the accused but does number intend to pass property therein and the recipient has the animus furandi. Secondly, when the accused companytrives to get possession of goods by representing himself to be some other person or by deceiving the owner into thinking that he was delivering different goods 1 . In the second class of cases, there is numberreal companysent on the part of the owner and when a larceny by trick of this type is companymitted, it is well settled in England that the operation of the Factors Act would be excluded. The position under the Indian law is the same in accordance with the principles explained above. Vide Whitehorn v. Davison 1911 1 K.B. 463, 479. With regard to the first category of cases,however, the decisions of the English companyrts are number at all uniform. As has been said already, Collins J. in Cahn v. Pocketts Bristol Channel etc. 1 made the observation that however fraudulent a person in actual custody may have been in obtaining possession, provided it did number amount to larceny by trick he can by his disposition give a good title. The observation as regards the exception in case of larceny by trick, though it companyld number rank higher than an obiter, was accepted as good law by the Court of Appeal in England in Oppenheimer v. Frazer 2 . On the other hand, it was held by Bankes L. J. and and Scrutton L. J. in Folkes v. King 3 that when companysent was In fact given by the owner of the goods, it was immaterial that the receiver was guilty of larceny by trick, and this view was approved of by the majority of the Court of Appeal in Lake v. Simmons 4 , though Atkin L. J. delivered a dissenting judgment The decision in Lake v. Simmons 4 was reversed by the House of Lords 5 but their Lordships proceeded number on any technical doctrine of criminal law but on the broad ground which we have already discussed that there was a mistake fatal to there being a companysenting mind at all. The view taken in Folkes v. King 3 has been approved of in the recent decision of Pearson v. Rose 6 . Thus, to quote the language of Lord Sumner, there is a signal and indecisive companyflict of authoritative opinion on this point 7 . In our opinion, the view taken in Folkes v. King 3 is the proper view to take and if, as was said by Scrutton L. J. in that case, the Parliament companyld number possibly have intended to apply the artificial distinctions of criminal law to a companymercial transaction governed by the Factors Act, there is still less justification for importing a 1 1899 1 Q. B. 643 at 659. 2 1907 2 K.B. 50. 3 1923 1 K.B. 282. 4 1926 2 K.B. 51. 5 1927 A.C. 487. 6 1950 2 All E.R. 1027. Vide Lake v. Simmons 1927 A. C. 487 at 510. highly technical rule of English criminal law which had its origin in a legal fiction devised by English Judges to punish a thief, who would otherwise have escaped companyviction, into the provisions of the Indian Sale of Goods Act. Whether there is companysent or number has to be proved as a fact in accordance with the principles of the law of companytract and when it is, proved to, exist, its existence cannot be nullified by application of any rule of criminal law. It is in the light of these principles that we would proceed number to examine the facts of this case. The whole question is, whether Mukherjee got possession of the shares with the companysent of the seller, and it is number disputed that the companysent of the defendants clerk,who was acting as the agent of the owner, would be as effective as the companysent of the owner himself. As has been said already, Bhuiya sent the shares to the defendant bank on the 14th of February, 1946. The letter written by him to the defendant on that date companycludes as follows I shall be highly obliged if you kindly realise the sum of Rs. 38,562-8-0 as per the enclosed bill from Mr. D. N. Mukherjee and deliver the shares to him and credit the realised sum to my account No. 1 and oblige. On the next day, that is to say on the 15th, Bhuiya wrote to Mukherjee informing him that he had deposited in the Barabazar branch of the United Industrial Bank, 300 iron and 500 Steel Corporation shares and Mukherjee was requested to take delivery of the shares against payment immediately. On the 18th of February following, Nilkrishna Paul, an old employee in the cash department of the defendant bank, was directed by the head cashier to see Mukherjee at his office for the purpose of companylecting the money from him and delivering over the shares. Sachindra Sen, an officer of the defendant under whose advice Paul was sent to Mukherjee, says in his deposition, that he definitely instructed Paul number to deliver the shares unless he received payment. As regards the mode of payment, Sen says that it was already arranged between him and Mukherjee that instead of paying the money in cash, he would give a pay order of the Punjab National Bank, where he had an account, upon the defendant bank. Sen told Paul to examine the pay order carefully and to part with the shares only if he was satisfied about it otherwise, he should companye back with the shares to the office. Paul, who is the principal witness on behalf of the defendant, says in his deposition that the instruction which he received was to deliver the shares after he obtained the pay order. Paul saw Mukherjee at his office chamber at about 1 1 a.m, on the 18th and on his telling Mukherjee that he had companye from the United Industrial Bank to deliver over the shares, Mukherjee asked him to take his seat. Mukherjee then asked for the shares. Paul told him that he companyld number deliver the shares unless he was given the pay order. Mukherjee then said I just want to have a look at the shares and the papers only to see whether they are all right or number. Upon this, Paul placed the shares on the table. What happened afterwards is thus narrated by him in his deposition Then he was looking at the shares one after another. When Mukherjee was about to leave the chamber, I told him number to go away but to give me the pay order. He told me I am going out, to get the pay order, it is ready, you take your seat, I am companying. Then he went out of the chamber. It is quite clear that when Paul placed the share certificates upon the table and allowed Mukherjee to scrutinise them, he did number part with the possession of or companytrol over the shares. It is true that Mukherjee handled the papers, but he did so in the presence -of Paul who was sitting by his side in front of the same table. At the most, Mukherjee companyld be said to have the barest physical custody for the purpose of examining the papers. When Mukherjee went out of the room with the shares in his hand, he undoubtedly got possession of the shares but on the evidence on the record, we do number think it possible to hold that he got possession with the companysent of Paul. The evidence shows that Paul actually protested and objected to 4-93 S. C. India/59. his going away with the shares without making any payment. It is true that Mukherjee told Paul that he was going out for getting the pay order, and would be companying back immediately but we cannot agree with Mr. Mullick that Paul companysented to Mukherjees taking away the papers, relying on the latters promise to companye back with the pay order. Mukherjee gave Paul numberopportunity whatsoever to express his assent or dissent in this matter. In spite of Pauls protest, lie bolted away with the papers asking Paul to wait. Paul says in his deposition that he waited for 2 or 3 minutes, and when Mukherjee did number companye back, he became anxious and went out of the chamber towards the companynter where he found an old gentleman sitting. The gentleman told him that Mukherjee was numberhere in the office. This shows that Paul did number really rely upon the assurance of Mukherjee , and did number allow Mukherjee to have possession of the shares upon that assurance. It was against his express desire that Mukherjee took the shares and left the chamber with them and he had to wait for a minute or two as he companyld number think of any other alternative open to him at that juncture.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 107 of 1952. Appeal from the Judgment and Order dated 22nd March, 1951, of the High Court of Judicature at Calcutta Harries C.J. and Banerjee J. in Reference No. 4 of 1950 .in .Civil Rule No. 1643 Of 1950. C. Setalvad, Attorney-General for India B. Sen, with him for the appellant. Atul Chandra Gupta Jay Gopd Ghose, with him for respondent NO. 1. 1953. December 17. The following Judgments were delivered. PATANJALI SASTRI C.J.--This appeal raises issues great public and private importance regarding the extent of protection. which the . Constitution of India accords to ownerships of private property. The first respondent herein hereinafter referred to as the respondent purchased the entire Touzi No. 341 of the 24-Parganas Collectorate at a revenue sale held on ,January 9, 1942. As such purchaser, the respondent acquired under section 37 of the Bengal Revenue Sales Act, 1859 Central Act No. 11 of 1859 the right to avoid and annul all under-tenures and forthwith to eject all under- tenants-with certain exceptions which are number material here. In exercise of that right the respondent gave numberices of ejectment and brought a suit in 1946 to evict certain under-tenants, including the second respondent herein, and to recover possession of. the lands. The suit was. decreed against the second respondent who preferred an appeal to the District Judge, 24-Parganas, Contending that his undertenure came within one of the exceptions referred to in section 37. When the appeal was pending, the Bill, which was later passed as the West Bengal Revenue Sales West . Bengal Amendment Act, 1950, hereinafter referred to asthe amending Act was introduced in the West Bengal Legislative Assembly on March 23, 1950. It would appear, according to the .statement 0f objects and reasons annexed to the Bill, that great hardship was being caused to a large section of the people by the. application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision . section 37 of the law for unwarranted large- scale eviction and it was,therefore,. companysidered necessary to enlarge the scope of protection already given by the section to certain categories of tenants with due safeguards for the security Of Government revenue. The Bill was eventually passed as the amending Act and it .came into force on.March 15, 1950. It substituted by section 4 thenew section 37 in the place of the original section 37, and it provided by section 7 that all pending suits, appeals and other proceedings which had number already resulted in delivery of possession shall abate., Thereupon, the respondent, companytending that section 7 wasvoid as abriging his fundamental fights under article 19 1 f and article 31, moved the High Court under article 228 to withdraw the pending appeal and determine the companystitutional issue .raised by him. The appeal accordingly. withdrawn and the case was heard by Trevor Harries C.J. and Banerjee J who, by separate but, companycurring judgments, declared section 7 unconstitutional and void and. returned the case to the District Court for disposal, in companyformity with their decision. The learned Judges held that the respondents right to annul under-tenures and evict under-tenants being a vested right acquired by him under his purchase before section 37 was amended, the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by the respondent at the revenue sale was an infringement of his fundamental right under article 19 1 f to hold property with all the rights . acquired under his purchase, and as such deprivation was number a reasonable restriction on the respondents exercise of his vested right, section 7 was number saved by clause 5 of that article and was void. On behalf of the appellant State the learned Attorney-General companytended before uS that if, as the respondent claims, his right to annul under-tenures and. evict under-tenants in occupation other than those protected under the original enactment, was property within the meaning of clause 1 Of article 19, then, it was also property within the meaning of clause 1 of article 31, as the expression must have the sameconnotation in both the provisions, and the respondent, having been deprived of it under the authority of law, namely, section 7 of the amending Act, such deprivation was lawful and companyld number be challenged. In support of this companytention learned companynsel strongly relied on the observations of my learned brother Das in Chiranjit Lal Choudhurys case 1 and also on the .analogy of the reasoning of the majority in Gopalans case z . Alternatively, it was urged that if the companyrect view was that the nullification of the respondents right was only the imposition of a restriction on the enjoyment of the property purchased by him, as .has been held by the learned Judges. below, then, it was a reasonable restriction imposed in ,the interests of the general public under clause 5 of article 19, having regard to the facts and circumstances which led to the enactment of the measure as . disclosed in the Statement of Objects and 1 1950 S.C. R 869 2 1950 8. C.R. 88. 1954 Reasons annexed to the Bill which, for this purpose, is admissible. It will be companyvenient to deal first with the latter companytention of the Attorney-General. Sub-clause f 0f clause 1 of article 19 has, in my opinion, numberapplication to the case. That article enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free companyntry. The freedoms declared in sub- clauses a to e and g are clearly of that description and in such companytext sub-clause f should, I think, also be understood as declaring the freedom appertaining to the citizen of free India in the matter of acquisition, possession and disposal of private property. In other words, it declares the citizens right to own property and has numberreference to the right to the property owned by him, which is dealt with in article 31. Referring to the privileges and immunities mentioned in article 4 and Amendment 14 of the American Federal Constitution, Bradley J. said in Butchers Union etc. Co. v. Crescent City etc. Co. 1 The phrase has a broader meaning. It includes those fundamental privileges-and immunities which belong essentially to the citizens of every free government, among which Washington J. enumerates the right of protection the right to pursue and obtain happiness and safety the right to pass through and reside in any State for the purposes of trade, agriculture, professional pursuits or otherwise to claim the benefit of the wnt of habeas companypus to institute and maintain actions of any kind in the companyrts of the State and to take, hold and dispose of property either real or personal. Corfield v. Coryell, 4 Wash. C.C. 371 . These rights are different from the companycrete fights which a man may have to a specific chattel or a piece of land or to the performance by another of a particular companytract, or to damages of a particular wrong, all which may be invaded by individuals they are the capacity, power or privilege of having and enjoying 1 111 U. 8. 746. those companycrete rights and of maintaining them in the companyrts, which capacity, power or privilege can only be invaded by the State. These primordial and fundamental rights are the privileges and immunities citizens which are referred to in the 4th article of the Constitution and in the 14th Amendment to it. Italics mine . We are number here companycerned with the meaning and companytent of the phraseprivileges and immunities in the companytext of thoseprovisions which, according to some of the Judges,have a reference only to those privileges and immunities which owe their existence to the Federal Constitution or its laws. What is of importance for the present purpose is that the two learned Judges thought that the right to take, hold and dispose of property was one of those primordial and fundamental rights of the same classas the right to pursue happiness and safety and other such basic freedoms appertaining to free citizens and was different from the companycrete rights which a person may have to a specific res or thing owned, being the capacity, power or privilege of having and enjoying those companycrete rights. Sub-clause f of clause 1 of article 19 seems analogous to clause 1 of article 17 of the United Nations Declaration of Human Rights Everyone has the right to own property alone as well as in association with others and article 31 to clause 2 of article 17 No one shall be arbitrarily deprived of his property. I have numberdoubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizen to acquire, hold and dispose of property with other natural rights and freedoms inherent in the status of a free citizen and embodied them in article 19 1 , while they provided for the protection of companycrete rights of property owned by a person in article 31. The meaning of the phrase,to acquire, hold and dispose of property as well as the nature of the subject matter to which it has reference in the sense indicated above, is also clear from the terms of sections 111 and 298 of the Government of India Act, 1935, where the same phrase is used in prohibiting imposition of disability on grounds of religion, place of birth, .descent, companyour or any of them on a British subject domiciled in the United Kingdom and on an indian subject of His Majesty determined, in the case of citizens and number-citizens number deal with expropriation of specific property belonging to such persons which is dealt with in section 299. There are difficulties in the way of accepting the view of the learned Judges below that article 19 1 f and 19 5 deal with the companycrete rights of property and the restraint to which they are liable to be subjected. In the first place, it will be numbericed that sub-clause f of clause 1 of article 19 deals only with the rights of citizens, whereas article 31 deals with the rights of persons in general. If article 31, which is headed by the caption right to property, was designed to protect property rights of citizens as well as number- citizens, why was it companysidered necessary to provide for the protection of those rights in sub-clause f of clause 1 of article 19 also ? I do number think that our Constitution-makers companyld have intended to provide a double-barrelled companystitutional protection to private property. Moreover, right to acquire and dispose of property companyld only refer to the capacity of a citizen. The word hold, which is inserted between those two words must, in my opinion, be understood to mean own, and number as having reference to something different, viz., rights to specific things owned by a citizen ? I see numberforce in the objection that unless sub- clause f of clause 1 of article 19 read with clause 5 is companystrued as relating to companycrete property rights also, the legislature would have the power to impose even unreasonable restrictions on the enjoyment of private property by citizens. It is difficult to believe that the framers of our Constitution companyld have intended to differentiate between citizens and number-citizens in regard to imposition of restrictions on enjoyment of private property. Such restrictions are imposed in exercise of the power inherent in the State to regulate private rights of property when they are sought to be exercised to the injury of others having similar rights, and the ,measure of restriction imposed. in exercise of such regulative power must be determined, in the case of citizens and number-citizens alike, by the necessity of protecting the companymunity. On the other hand, differential treatment of citizens and number-citizens would be perfectly intelligible if subclause f of clause 1 of article 19 and clause 5 are understood as dealing only with the freedom or capacity to acquire, hold and dispose of property in general, for, it would be justifiable to exclude aliens from such freedom, as has been done in several companyntries for the benefit of their own nationals, particularly in respect of land. Moreover, both by the preamble and the directive principles of State policy in Part IV, our Constitution has set the goal of a social welfare State and this must involve the exercise of a large measure of social companytrol and regulation of the enjoyment of private property. If companycrete rights of property are brought within the purview of article 19 1 f , the judicial review under clause 5 as to the reasonableness of such companytrol and regulation might have an unduly hampering effect on legislation m that behalf, and the makers of our Constitution may well have intended to leave the Legislatures free to exercise such companytrol and regulation in relation to the enjoyment of rights of property, providing only that if such regulation reaches the point of deprivation of property the owner should be indemnified under clause 2 of article 31 subject to the exceptions specified in para. ii of sub-clause b of clause 5 of article 31. Nor am I much impressed with the suggestion that the reference to exercise in clause 5 of article 19 of the rights companyferred by sub-clause f of clause 1 indicates that the latter rights must be fights of property. Clause 5 companyld as well companytemplate restrictions on the excercise of a citizens freedom to acquire, hold and dispose of property, as for instance, banning acquisition of land in a givien locality, say a tribal area, or putting a ceiling on the quantum of land that a citizen can hold, or restricting alienation of land to specified classes of persons only of. Punjab Province v. Daulat Singh and Other 1 and the reasonableness of such restrictions being brought under judicial review. For all these reasons, I am of opinion that under the scheme of the Constitution, all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under clause 1 of article 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by clauses 2 to 6 of that article, while rights of private property are separately dealt with and their protection provided for in article 31, the cases where social companytrol and regulation companyld extend to the deprivation of such rights being indicated in para. ii of subclause b of clause 5 of article 31 and exempted from liability to pay companypensation under clause 2 . On this view, numberquestion of companyrelating article 19 1 f with article 31 companyld arise and the analogy of Gopalans case has numberapplication. On this view, the question whether section 7 0/3 the amending Act is a reasonable restriction on the exercise of the res pondents right to the property purchased by him companyld number also arise, as clause 5 of article 19 companyld then have reference only to disabilities of the kind already mentioned. Turning next to the companytention based on article 31 1 , it Was put thus in the language of Das J. in Chiranjit Lal Choudhurys case which the learned Attorney-General fully adopted Article 31 1 formulates the fundamental right in negative form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31 2 prohibits the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of companypensation. It is suggested that clauses 1 and 2 0f article 31 deal with the same topic, namely, companypulsory acquisition or taking possession 0f property, clause 2 being only an elaboration of clause 1 . There appear 1 1946 F.C .R. 1 CP. C. . 2 1950 S.C.R. 869, 924. , to me to be two objections to this suggestion.If that were the companyrect view, then clause 1 must be held to be wholly redundant and clause 2 , by itself, would have been sufficient. In the next place such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can companyceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is supported in the United States of America as an exercise of police power. This deprivation of property is different from acquisition or taking of possession of property which goes by the name of eminent domain m the American law. The companystruction suggested implies that our Constitution has dealt with only the law of eminent domain, but has number provided for deprivation of property in exercise of police powers. I am number prepared to adopt such companystruction, for I do number feel pressed to do so by the language used in article 31. On the companytrary, the language of clause 1 of article 31 is wider than that of clause 2 , for deprivation of property may welt be brought about otherwise than by acquiring or taking possession of it. I think clause 1 enunciates the general principle that numberperson shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be deprived of his property, provided he is so deprived by authority of law. No question of companypensation arises under clause 1 . The effect of clause 2 is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will number be permissible under any law, unless such law provides for payment of companypensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, numbercompensation is required, provided that such deprivation is by authority of law. I have made this lengthy extract in order to avoid possible unfairness in summarising it. These 2-9 S.C.I./59 observations were made while rejecting an argument of the petitioner in that case, which, however, the learned Judge decided in his favour on another point, and are thus purely obiter. With all respect-to my learned brother I am unable to share the view expressed by him. He reads clauses 1 and 2 as mutually exclusive in scope and companytent, clause 2 imposing limitations only on two particular kinds of deprivation of private property, namely, those brought about by acquisition or taking possession thereof, and clause 1 . authorising all other kinds of deprivation with numberlimitation except that they should be authorised by law. There are several objections to the acceptance of this view. But the most serious of them all is that it largely nullifies the protection afforded by the Constitution to rights of private property and, indeed, stultifies the very companyception of the right to property as a fundamental right. For, on this view, the State, acting through its legislative organ, companyld, for instance, arbitrarily prohibit a person from using his property, or authorise its destruction, or render it useless for him, without any companypensation and with-out a public purpose to be served thereby, as these two companyditions are stipulated only for acquisition and taking possession under clause 2 . Now, the whole object of Part Iii of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State, which as defined by article 12 includes the Legislatures of the companyntry. It would be a startling irony if the fundamental rights of property were, in effect, to be turned by ,construction into an arbitrary power of the State to deprive a person of his property without companypensation in all ways other than acquisition or taking possession of such property. If the Legislatures were to have such arbitrary power, why should companypensation and public purpose be insisted upon in companynection with what are termed two particular forms of deprivation ? What companyld be the rational principle underlying this differentiation ? To say that clause 1 defines the police power in relation to rights of property is numbersatisfactory answer, as the Same power companyld as well have been extended to these two particular kinds of deprivation. Such extension would at least have avoided the following anomalycompensation is paid to indemnify the owner for the loss of his property. It companyld make numberdifference to him whether such deprivation was authorised under clause 1 or clause 2 . In either case his property would be gone and he would suffer loss. It would matter little to him what happened to the property after he was deprived of it--whether it was used for a public purpose or was simply destroyed without any public purpose being served. In fact, he companyld more readily reconcile himself to the loss forced upon him if he found his property being used for the public benefit for, in that case, he would be participating in that benefit as a member of the public. But that companysolation would be denied to him by deprivation under clause 1 , which makes his 0loss all the more grievous. But, according to Das J.s. reading of that clause, the Constitution-makers have provided for numberindemnification of the expropriated owner. Why ? Because,it is said, deprivation under clause 1 is an exercise of police power. This, to my mind, is fallacious.You first companystrue the clause as companyferring upon the State acting through its Legislature unfettered power to deprive owners of their property in all other cases except the two mentioned m clause 2 , and then seek to justify such sweeping and arbitrary power by calling it police power. According to Das J. clause 1 was designed to companyfer police power on the State to deprive persons of their property by means other than acquisition or taking possession of such property. He would read the clause in a positive form as implying that a person may be deprived of his property by authority of law. In other words, the framers of our Constitution, who began Part Ill by formulating the fundamental rights of individuals against invasion by the Legislatures in the companyntry, ended by formulating the right of the Legislatures to deprive individuals of their property without companypensation. Speaking of police power, as applied to personal liberty, Prof. Willis says 1 There are two main requirements for a proper exercise of the police power-- 1 there must be a social interest to be protected which is more important than the social interest in personal liberty, and 2 there must be, as a means for the accomplishment of this end, something which bears a substantial relation there to. This statement is equally true of police power as applied to private property. This is recognised and given effect to in clauses 2 to 6 of article 19 which delimit the regulative power of the Legislatures as applied to the freedoms enumerated in clause 1 of that article including the freedom referred to in sub-clause f . But clause 1 of article 31 imposes numbersuch limitations. Why should such absolute power be companyferred on the Legislature in relation to private property, whereas the exercise of restrictive power under clauses 2 to 6 of article 19 is carefully limited to specified purposes and to the imposition of only reasonable restrictions in each of those cases ? Could it have been intended that, while restriction imposed on the freedoms mentioned in clause 1 of article 19 should be reasonable and in public interest, deprivation of property, except in the two cases provided for in clause 2 of article 31, need number be reasonable number for the public benefit ? To say that the requirement of authorisation by law was companysidered sufficient limitation in all other cases of deprivation takes numbernote of the fact that in the case of restrictions under clauses 2 to 6 of article 19 also, their authorisation companyld only be by law and yet other limitations have been imposed. In fact, authorisation by law can obviously be numberlimitation on the Legislature, and police power, as developed in the American case law, is essentially a legislative power. Now, what is this police power and how does the Constitution of India provide for its exercise by the State ? Referring to the doctrine of police power Constitutional Law, p. 728. in America, I said in Gopalans case 1 When that power legislative power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of police power, i.e., the power of Government to regulate private rights in public interest, was evolved to companynteract such excesses And Das J. 1 , said that the companytent of due process of law had to be narrowed down by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former. This companyrt held in the aforesaid case that the framers of our Constitution definitely rejected the doctrine of due process of law. Is it to be supposed that they accepted the antidotedoctrine of police power and embodied it in clause 1 of article 31 as a specific power companyferred on the Legislatures to deprive persons of their property ? The suggestion seems unwarranted and, indeed, companytrary to the scheme of our Constitution. That scheme, in marked companytrast with the Constitution of America, is to distribute legislative powers among the Union and the State Legislatures according to the Lists of the Seventh Schedule and among such powers was included the power of acquisition or requisitioning of property for Union and State purposes in entry No. 33 of List I and No. 36 of List II respectively. Thus, what is called the power of eminent domain, which is assumed to be inherent in the sovereignty of the State according to Continental and American jurists and is accordingly number expressly provided for in the American Constitution, is made the subject of an express grant in our Constitution. Having granted the power in express terms, the Constitution defines in article 31 the limitations on the exercise thereof as companystituting the fundamental right to property of the owner, all fundamental rights of the people being restraints on the State see observations at page 198 in Gopalans case 1 . But the power of social companytrol and regulation of private rights and freedoms for the companymon good 1 1950 S.C.R. 88, 200. 2 1950 S.C.R. 88, 313. being an essential attribute of a social and political organisation otherwise called a State, and pervading, as it does, the entire legislative field, was number specially provided for under any of the entries in the legislative Lists and was left to be exercised, wherever desired, as part of the appropriate legislative power. Even where such regulative powers are defined and delimited, as for instance in clauses 2 to 6 of article 19 in relation to the rights and freedoms specified in clause 1 , the powers themselves are left to be exercised under laws made with respect to those matters. For example, the power of social companytrol and regulation as applied to freedom of speech and expression is exercisable under a law made with respect to entry No. 1 of List II Public Order or entry No. 39 of List III Newspapers, books and printing presses and in relation to a freedom number falling under clause 1 of-- article 19, like the freedom to drink or to eat what one likes, such freedom can be restrained or even prohibited under a law made with reference to entry No. 8 of List II Intoxicating liquors, etc. or entry No. 19 of List III Drugs and poisons . Thus the American doctrine of police power as a distinct and specific legislative power is number recognised in our Constitution and it is therefore companytrary to the scheme of the Constitution to say that clause 1 of article 31 must be read in positive terms and understood as companyferring police power on the Legislature in relation to rights of property. I entirely agree with the observations of Mukherjea J. in Chiranjit Lals case 1 , that In interpreting the provisions of our Constitution we should go by the plain words used by the Constitution makers and the importing of expressions like police power, which is a term of variable and indefinite companynotation in American law, can only make the task of interpretation more difficult. The companyrect approach, in my opinion, to the interpretation of article 31 is to bear in mind the companytext and setting in which it has been placed. As already stated, Part III of the Constitution is designed to afford protection to the freedoms and rights mentioned 1 1950 S.C.R. 869, 907 therein against inroads by the State which includes the Legislatures as well as the executive Governments in the companyntry. Though, as pointed out in Gopalans case 1 citing Eshukbayi Eleko v. Officer Administering the Government of Nigeria 2 , protection against executive action is number really needed under systems of Government based on British jurisprudence according to which numbermember of the executive can interfere with the liberty or property of a subject except in pursuance of powers given by law, our Constitution-makers, who were framing a written Constitution, companyferred such protection explicitly by including the executive Governments of the Union and the States in the definition of the State in article 12. A fundamental right is thus sought to be protected number only against the legislative organ of the State but also against its executive organ. The purpose of article 31, it is hardly necessary to emphasis, is number to declare the right of the State to deprive a person of his property but, as the heading of the article shows, to protect the right to propertyof every person. But how does the article protect the right to property ? It protects it by defining the limitations on the power of the State to take away private property without the companysent of the owner. It is an important limitation on that power that legislative action is a pre-requisite for its exercise. As pointed out by Cooley, The right to appropriate private property to public uses lies dormant in the State, until legislative action is had, pointing out the occasions, the modes, companyditions, and agencies for its appropriation. Private property can only be taken pursuant to law 3 . In England the struggle between prerogative and Parliament having ended in favour of the latter, the prerogative right of taking private property became merged in the absolutism of Parliament, and the right to companypensation as a fundamental right of the subject does number exist independently of Parliamentary enactment. The result is that Parliament alone companyld authorise interference with the enjoyment of private property. 1 1950 S.C.R 88. 2 1931 A C. 662. Constitutional Limitations, Vol. II, p. 1119. Blackstone also says that it is the Legislature alone that can interpose and companypel the individual to part with his property 1 . It is this limitation which the framers of our Constitution have embodied in clause 1 of article 31 which is thus designed to protect the rights to property against deprivation by the State acting through its executive organ, the Government. Clause 2 imposes two further limitations on the Legislature itself. It is prohibited from making a law authorising expropriation except for public purposes and on payment of companypensation for the injury sustained by the owner. These important limitations on the power of the State, acting through the executive and legislative organs, to take away private property are designed to protect the owner against arbitrary deprivation of his property. Clauses 1 and 2 of article 31 are thus number mutually exclusive in scope and companytent, but should, in my view, be read together and understood as dealing with the same subject, namely, the protection of the right to property by means of the limitations on the State power referred to above, the deprivation companytemplated in clause 1 being numberother than the acquisition or taking possession of property referred to in clause 2 . Much argument was expended to show that clause 2 dealt only with two specified modes of depriving a person of his property, namely, acquisition and requisitioning and companyld number, therefore, be companysidered to be a mere elaboration of clause 1 , which referred to deprivation generally. It was submitted that clause 2 should be read with entry No. 33 of List I, No. 36 of List II and No. 42 of List III, each of which refers to acquisition or requisitioning of property and to numberother mode of deprivation. It was also pointed out that sub-section 2 of section 299 of the Government of India Act, 1935, as well as entry No. 9 of List II of the Seventh Schedule thereof referred only to companypulsory acquisition of land for public purposes, and it was number until the Bombay High Court held in Tan Bug Taim and Others v. The Collector of Bombay anal Others 2 , that rule 75 a of the Defence of India Rules Commentaries, Vol. I, p, 110. I.L.R. 1946 Bom. 517. under which a property situated in Bombay was requisitioned was ultra vires on the ground that entry No. 9 of List II did number companyfer on the Legislature the power of requisitioning, that such power was-conferred on the Central Legislature by the India Proclamations of Emergency Act, 1946 9 and 10 Geo. V, Ch. 23 . Attention was drawn to the Regulations and Acts relating to companypulsory acquisition of land in this companyntry including the Land Acquisition Act, 1894, all of which provided for the vesting of the property acquired in the Government or in one of its officers, and it was suggested that the framers of our Constitution, who must have been aware of the difficulties arising out of the lacuna in the Government of India Act, 1935, in regard to the power of requisitioning, added the words taken possession of in clause 2 and the word requisitioning in the entries referred to above. It was, therefore, urged that the words acquired or taken possession of should number be taken to have reference to all forms of deprivation of private property by the State. I see numbersufficient reason to companystrue the words acquired or taken possession used in clause 2 of article 31 in a narrow technical sense. The Constitution marks a definite break with the old order and introduces new companycepts in regard to many matters, particularly those relating to fundamental rights, and it cannot be assumed that the ordinary word acquisition was used in the Constitution in the same narrow sense in which it may have been used in pre-Constitution legislation relating to acquisition of land. These enactments, it should be numbered, related to land, whereas article 31 2 refers to movable property as well, as to which numberformal transfer or vesting of title is necessary. Nor is there any warrant for the assumption that taking possession of property was intended to mean the same thing as requisitioning property referred to in the entries of the Seventh Schedule. If that was the intention, why was the word requisitioning number used in clause 2 as well ? It is fallacious to suggest that unless taking possession is synonymous with requisitioning, the power to make a law authorising the taking of possession of property would be lacking because numberentry in any of the Lists of the Seventh Schedule companyfers that power. A specific entry in the legislative Lists is numbermore necessary for companyferring such power than for companyferring power to make a jaw authorising deprivation of property which clause 1 of article 31 postulates. See observations in P.D. Shamdasani v. Central Bank of India 1 . The word acquisition is number a term of art, and it ordinarily means companying into possession of, obtaining, gaining or getting as ones own. It is in this general sense that the word has been used in articles 9, 11 and 19 1 f and number as implying any transfer or vesting of title. In Minister of State Jar the Army v. Dalziel 2 a Full Bench of the High Court of Australia had to companystrue the scope of the legislative power with respect to acquisition of property companyferred on the Commonwealth Parliament by section 51 xxxi of the Austrailan Constitution 63 and 64 Vic., Ch. 12 ,. and the companyrt decided by a majority that the power included the power to take possession of property for a temporary purpose for an indefinite period. To say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his companysent. When the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner, the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition. No formula of vesting is necessary. As already stated, in the case of moveable property numberformal transfer or vesting of title apart from seizing it companyld have been companytemplated And, what is more, clause 5 b ii of article 31, which excepts any law made in future for the prevention of danger to life or property from the operation, of clause 2 shows that the latter clause, but for such exception, would entail liability to pay companypensation for deprivation by destruction, which must therefore- 1 1952 S.C.R. 391,394. 2 68 C.L.R. 261. be taken to fall within the scope of clause 2 , for a law made for the prevention of danger to life or property may often have to provide for destruction of the property appropriate. I am of opinion that the word acquisition and its grammatical variations should, in the companytext of article 31 and the entries in the Lists referred to above, be understood in their ordinary sense, and the additional words taking possession of or requisitioning are used in article 31 2 and in the entries respectively, number in companytradistinction with, but in amplification of the term acquisition, so as to make it clear that the words taken together companyer even those kinds of deprivation which do number involve the companytinued existence of the property after it is acquired. They would, for instance, include destruction which implies the reducing into possession of the thing sought to be destroyed as a necessary step to that end. The expression taking possession can only mean taking such possession as the property is susceptible of and number actual physical possession, as the interest in, or in any companypany owing, any companymercial or industrial undertaking, which is expressly included in clause 2 of article 31, is number susceptible of any actual physical occupancy or seizure. It is, however, unnecessary here to express any companycluded opinion on the precise scope and meaning of the expression shall be taken possession of or acquired in clause 2 except to say that it does number admit of being companystrued in the same wide sense as the word taken used in the Fifth Amendment of the American Constitution, but implies such an appropriation of the property or abridgement of the incidents of its ownerships as would amount to a deprivation of the owner. Any other interference with enjoyment of private property short of such appropriation or abridgement would number be companypensable under article 31 2 . It will number be seen that the two objections raised by Das J. to the view expressed above, namely, that clauses 1 and 2 must be read together and understood as dealing with the same topic, are really baseless. The first objection is that clause 1 would then be redundant. It would number be so because it embodies one of the three important limitations on the exercise of the State power of deprivation of private property, namely, the necessity for the legislative action as a companydition precedent to the exercise of the power and companystitutes a protection against the executive organ of the State. The second objection that the States power in an emergency to deprive a person of his property without payment of companypensation, as for example, to demolish an intervening building to prevent a companyflagration from spreading, would be excluded is equally baseless. Cases of that kind, as we have seen, would fail within the exception in clause 5 b ii , and numbercompensation would be payable for the loss caused by the destruction of property authorised under that clause. The learned Attorney-General suggested that sub-clause b was inserted ex-abundante cautela as even without it numberone companyld have supposed that a law of the kind mentioned in that sub-clause would fall under clause 2 . There companyld have been numberdoubt, for instance, that the power of taxation referred to in paragraph i of that sub-clause was a distinct power. It is difficult to appreciate this argument. If the exceptions in sub-clause b were so obvious that they need number have been explicitly provided for, then equally must be second objection of Das J. fall to the ground. To say that sub-clause b is introduced by way of abundant caution is number to do away with the exceptions but to emphasise their existence aliunde. Whether it was companysidered necessary to provide expressly that destruction of private property under emergency companyditions entails numberliability to pay companypensation or whether the States power to do so was so well established that sub-clause b ii was really unnecessary and must be taken to have been inserted ex abundante cautela, in either view, the second objection must equally fail. The fact is that all the cases referred to in sub-clause b are different forms of deprivation of property and, as difficulties of companystruction might arise in a written Constitution if they are number expressly and specifically excepted from the requirement under clause 2 as to payment of companypensation, the framers have thought it necessary to insert clause 5 b . Where was the necessity, it was asked, to provide in clause 1 of article 31 for protection against the executive government in the matter of companypulsory acquisition of property by the State, as numbersuch protection is provided for in the case of the regulative powers exercisable under article 19 2 to 6 ? The answer is the same need apparently which dictated the enactment of article 265 providing for similar protection in the matter of taxation. In any case, this would be numbermore of an objection, if it be an objection, to the view I have indicated above than to the other view which also recognises the necessity for legislative action before a person companyld be deprived of his property. Attention was called to article 38 as showing that one of the goals set by the Constitution was the promotion of social welfare, and it was urged that the attainment of that object as well as the growing companyplexities of modern companyditions of life must call for an expanding power of social companytrol and regulation, particularly in the sphere of the enjoyment of private property and that the exercise of such power without entailing liability to pay companypensation ought number to be companyfined within the narrow limits specified in article 31 5 b . This is a misconception. In the first place, social welfare is number inconsistent with the ownership of private property and does number demand arbitrary expropriation of such property by the State without companypensation. On the other hand, as pointed out by Blackstone The public good is in numberhing more essentially interested than in the protection of every individuals private rights as modelled by the municipal law 1 . This is number an antiquated view. So modern a document as the Declaration of Human Commentaries Vol. I, p. 109. Rights in the United Nations has specifically provided for the protection of private property by including the clause No one shall be arbitrarily deprived of his in article 17 and the framers of our Constitution have evidently proceeded on that view. Secondly, the argument also overlooks that clause 5 b was number intended to define and does number define exhaustively the power of social companytrol and regulation in relation to rights of private property. It only limits the purposes for which the power companyld be exercised without liability to pay companypensation, though its exercise results in deprivation of property in the sense already explained. But where its exercise does number involve deprivation of property, numberquestion of paying companypensation would arise, and the Legislatures in the companyntry would, as already indicated, be free to enact laws providing for the exercise of such power within the fields marked out for them in the Legislative Lists. There is, therefore, numberroom for the apprehension that article 31 5 b would unduly cramp social companytrol and regulation of private property for the public good or would lead to any alarming companysequences to the safety of the companymunity. But why all this ado, it was asked, about protection against deprivation of property by legislative action ? There is numbersuch protection provided in the Constitution against deprivation of property by the Legislature exercising the power of taxation. Why then companyplain if there is numberprotection against the Legislature authorising deprivation of property without companypensation under article 31 1 ? Our Constitution-makers, it was said, trusted the Legislature, as the people of Great Britain trust their Parliament which protects the Englishmans right to property. In ultimate analysis, is number well-informed and organised public opinion the true and effective protection against arbitrary action of the Legislature ? The argument has numberforce. So far as the power of taxation is companycerned, the Constitution recognises numberfundamental right to immunity from taxation and that is why presumably numberconstitutional protection is provided against the exercise of that power. But fundamental rights under the Constitution stand on a different footing. Indeed, the argument is a bold challenge to the policy of including a declaration of such rights in Part HI of the Constitution. In Gopalans case 1 , I said Madison who played a prominent part in framing the First Amendment of the American Constitution pointing out the distinction, due to historical reasons, between the American and the British ways of securing the great and essential rights of the people, observed Here they are secured number by laws paramount to prerogative but by Constitutions paramount to laws. This has been translated into positive law in Part 1I1 of the Indian Constitution. There have always been two schools of opinion regarding the efficacy of a declaration of fundamental rights in a Constitution. Britain never believed in a formal declaration of such rights. Referring to the ,demand of the Indian Delegation that the Parliamentary Bill which was later passed as the Government India Act, 1935, should embody certain fundamental rights, the Joint Parliamentary Committee observed 2 The question of so-called fundamental rights, which was much discussed at the three Round Table Conferences, was brought to our numberice by the British India Delegation, many members of which were anxious that the new Constitution should companytain a declaration of rights of different kinds, for reassuring minorities for asserting the equality of all persons before the law, and for other like purposes and we have examined more than one list of such rights which have been companypiled. The Statutory Commission observe with reference to this subject--We are aware that such provisions have been inserted in many Constitutions, numberably in those of the European States formed after the war Experience, however, has number shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective.With these 1 1950 S.cR. 88, 198. Para. 366. observations we entirely agree and a cynic might indeed find plausible arguments, in the history during the last ten years of more than one companyntry, for asserting that the most effective method of ensuring the destruction of a fundamental right is to include a declaration of its existence in a companystitutional instrument. But the American view is different. Answering a similar objection to the inclusion of a Bill of Rights in the American Constitution, Jefferson said But though it is number absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cram Government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniences of the want of a declaration are permanent, affective, and irreparable. They are in companystant progressive from bad to worse. The executive in our Governments is number the sole, it is scarcely the principal, object of my jealousy. The tyranny of the Legislatures is the most formidable dread at present, and will be for many years. Quoted in Cooleys Constitutional Limitations, 8th Edn.Vol. I, p. 535 . It is obvious that the .framers of our Constitution shared the American view and included Part III in the Constitution of India. It is, therefore, a wrong approach to companystrue the articles of Part III by pointing to the British way, which is more a traditional than a companystitutional way, of protecting the rights and liberties of the individual by making Parliament supreme. On this view of the meaning and effect of article 31, the question is whether section 7 read with section 4 of the amending Act infringes the fundamental right of the respondent under that article. These provisions by their retrospective operation undoubtedly abridge the respondents rights of property by nullifying one of the incidents of the estate purchased by him at the revenue sale, namely, the right to annul certain kinds of under- tenures and evict certain classes of undertenants in occupation of portions of the estate. Does such abridgement amount to deprivation of property within the meaning of article 31 as interpreted above, and, if so, does it fall within the exception in clause 5 b ii of that article ? Now, the word property in the companytext of article 31 which is designed to protect private property in all its forms, must be understood both in a companyporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its juridical or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others. This wide companynotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of article 31 2 , for, any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of the rights theretofore exercised by the owner. The American companyrts have experienced similar difficulty in deciding whether a given statutory abridgement of the rights of the owner is an exercise of the-police power for which numbercompensation can be claimed, or a taking of property within the meaning of the Fifth Amendment clause Nor shall private property be taken for public use without just companypensation. The general rule at least said Holmes J. in delivering the majority opinion in Pennsylvania Coal Co. v. Mahon 1 , is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognised as a taking. The vague and expansive doctrine of police power and the use of the term taken in the Fifth Amendment companystrued m a very wide sense so as to companyer any injury or damage to property, companypled with the equally vague 1 260 U.S. 393. 3--95 S.G.I./59 and expansive companycept of due process, allow a greater freedom of action to the American companyrts in accommodating and adjusting, on what may seem to them a just basis, the companyflicting demands of police power and the companystitutional prohibition of the Fifth Amendment. Under the Constitution of India, however, such questions must be determined with reference to the expression taken possession of or acquired as interpreted above, namely, that it must be read along with the word deprived in clause 1 and understood as having reference to such substantial abridgement of the rights of ownership as would amount to deprivation of the owner of his property. No cut and dried test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of article 31 each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of article 31 if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value. The learned Judges of the High Court did number companysider the case from this point of view. As has been stated, they applied article 19 1 f and 5 and held that section 7 of the amending Act, by its retrospective operation, imposed on the respondents enjoyment of the property purchased by him at the revenue sale restrictions which were number reasonable. That view, for reasons already indicated, cannot be accepted and the matter has to be looked at from the point of view of article 31 as interpreted above. A companyparison of the scope and effect of the old section 37 which is substituted in its place by section 4 of the amending Act and which section 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annual under-tenures and evict under-tenants is curtailed by the new section 37 by enlarging the scope of the exceptions in the old section, it entitles the purchaser, as a companyntervailing advantage, to enhance the rent payable by the tenure holders and tenants newly brought within the exception. The purchaser is left free in other respects to companytinue in enjoyment of the property as before. In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while companyferring certain companypensating benefits on the purchaser. This amendment is in the line with the traditional tenancy legislation in this companyntry affording relief to tenants whenever the tenancy laws were found, due to changing companyditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgement sought to. be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31 1 and 2 . No question accordingly arises to the applicability of clause 5 b ii to the case. In the result, the appeal is allowed and the judgment of the High Court is set aside. The first respondent will pay the companyts of this appeal incurred by the appellant here and in the lower Court. MEHR CHAND MAHAJAN J.--For reasons given in my judgment in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd., C.A. 141 of 1952 1 I agree with my Lord the Chief Justice in his companystruction of article 31 of the Constitution. I also companycur in the companyclusions reached by him, and in his decision of the appeal. DAS J.--I agree that this appeal must be allowed but I have arrived at this companyclusion by a different process of reasoning. As the arguments advanced before us have raised very important companystitutional issues it is only right that I should give the reasons for my decision in some detail. The facts and circumstances leading up to the present appeal are as follows At a revenue sale held on the 9th January, 1942, the respondent Subodh Gopal Bose purchased the entire Touzi No. 341 recorded in the companylectorate of the Reported infra. permanently settled district of 24-Parganahs in West Bengal. At the date of that sale the auction-purchasers at a revenue sale had, under section 37 of the Bengal Land Revenue Sales Act, 1859, as it then stood, certain rights as therein mentioned. That section ran thus The purchaser of an entire estate ,in the permanently-settled districts of Bengal, Bihar and Orissa, sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants, with the following exceptions -- First--Istimrari or Mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement. Secondly--Tenures existing at the time of settlement which have number been held at a fixed rent , Provided always that the rents of such tenure shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures. Thirdly--Talukdari and other similar tenure created since the time of settlement and held immediately of the proprietors of estates and farms for terms of years so held, when such tenures and farms have been duly registered under the provisions of this Act. Fourthly--Leases of lands whereon dwelling houses, manufactories or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk. And such a purchaser as is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land companying within the fourth class of exceptions above made, if he can prove the same to have been held at what was orginally an unfair rent, and if the same shall number have been held at a fixed rent, equal to the rent of good arable land, for a term exceeding twelve years but number otherwise Provided always that numberhing in this section companytained shall be companystrued to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do. In exercise of his rights under the section set out above, the respondent Subodh Gopal Bose annulled all under-tenures and tenancies appertaining to the said Touzi and on tile 18th March, 1946, instituted a suit, being Title Suit No. 35 of 1946, in the Fourth Court of the Subordinate Judge at Alipore 24-Parganahs for the ejectment of respondents Nos. 2 to 6, claiming that he was entitled to recover possession of the lands in suit by virtue of the rights companyferred on him by section 37. The respondent No. 2, who was the defendant No. 1, alone companytested the suit. His defence was, inter alia, that he was a raiyat and as such protected by the proviso to section 37. He also claimed protection under the fourth exception to that section. The learned Subordinate Judge who tried the suit delivered his judgment on the 14th February, 1949. By that judgment he overruled the companytentions of the companytesting defendant and passed a decree for ejectment against him. He dismissed the suit against the other defendants who are number respondents Nos. 3 to 6 , holding that they were number necessary parties to the suit. On the 25th March, 1949, the respondent No. 2 preferred an appeal, being Title Appeal No. 252 of 1949, before the District Judge at Alipore, 24Parganahs. That appeal was transferred to the companyrt of the Additional District Judge for hearing. While that appeal was pending the West Bengal Legislature passed West Bengal Act VII of 1950, called the Bengal Land Revenue Sales West Bengal Amendment Act of 1950, which received the assent of the Governor of Bengal on the 15th March, 1950, and was published in the Official Gazette on the day. By section 4 of the amending Act, section 37 of the Bengal Revenue Sales Act, 1859, was replaced by a new section the material part of which runs thus 37. 1 The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free. from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures, holdings and .leases with the following exceptions a tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent,. and b i tenures and holdings number included in exception a above made, and other leases of land whether or number for purposes companynected with agriculture or horticulture, existing at the date of issue of the numberification for sale of the estate under this Act Provided that numberwithstanding anything companytained in any law for the time being in force or in any lease or companytract numberperson shall be entitled to hold under such a purchaser as is aforesaid any tenure holding or lease companying within exception b above made, free Of rent or at a low rent or at a rent or rate of rent fixed in perpetuity or for any specified period unless the right so to hold has been expressly recognised under any law for the time being in force by any companypetent civil or revenue companyrt and the purchaser shall be entitled to proceed in the manner prescribed by any law for the time being in force for the determination of a fair and equitable rent of such tenure, holding or lease. Section 7 of the amending Act provides as follows - 7. 1 a Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and b every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of the companymencement of this Act shall if the suit, proceeding, appeal or application companyld number have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate. Every decree passed or order made, before the date of companymencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall, if the decree or order companyld number have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void , Provided that numberhing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of companymencement of this Act. Whenever any suit, proceeding, appeal or application abates under sub-section 1 or any decree or order becomes void under sub-section 2 , all fees paid under the Court-fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid. It is quite clear that under this section 7 the suit of the respondent Subodh Gopal Bose must abate and the decree passed in his favour must become void if that section be valid law and intra vires the Constitution of India. On the 21st July, 1950, the respondent Subodh Gopal Bose applied before the Additional District Judge before whom the appeal was pending to make a reference under article 228 of the Constitution of India for a decision of the question whether the provisions of section 7 were void being ultra vires the Constitution. The learned Additional District Judge by his order dated the 16th September, 1950, dismissed that application. On the 24th November, 1950,the respondent Subodh Gopal Bose applied to the High Court under article 228 and eventually on the 18th December, 1950, the High Court directedthe appeal to be transferred to the High Court only for the decision of the companystitutional point. The proceedings were numbered as Reference Case No. 4 of 1950. Notice having been given by the Court to the Advocate- General of Bengal, the State of West Bengal appeared on the Reference. On the 22nd March, 1951, the High Court held that section 7 imposed an unreasonable restriction on the respondent Subodh Gopal Boses right to hold property and violated his fundamental right guaranteed by article 19 1 f read with article 19 5 and was, therefore void under article 13 1 . With this finding the High Court sent back the records to the lower appellate companyrt for disposal of the appeal in the light of that finding. On the 30th November, 1951, the High Court gave leave to the State of West Bengal to appeal to us. Hence the present appeal. Section 7 of the amending Act, the validity whereof is challenged before us, in terms, affects preexisting rights. Accordnig to that section every suit or proceedings for ejectment under old section 37 and every appeal or application for review or revision arising out of such suit or proceeding pending at the companymencement of the amending Act is to abate if the suit, proceeding, appeal or application companyld number have been validly instituted, referred or made, had the amending Act been in operation at the date of such suit, proceeding, appeal or application. Further, every decree passed or order made before the companymencement of the amending Act for the ejectment of any person from land in pursuance of old section 37 is likewise to become void if such decree or order companyld numberhave been validly passed or made if the amending Act had been in operation at the date of the decree or order. The proviso, however, saves -decrees or orders in execution whereof possession had been delivered before the companymencement of the amending Act. It is, therefore,clear that section 7 affects pre-existing rights bygiving, in effect,retrospective operation to section4 which has sub-stituted, inter alia, the new section 37 for the old section 37 of the Act of 1859. A cursory companyparison of the language of the old section 37 with that of the new section 37 will at once make it clear that the substantial right given by the old sectionto the purchaser to avoid and annul under-tenuresand to eject under-tenants is numberlonger availableto him under the new section 37. Although the opening part of the new section 37 purports to give to the purchaser the right to avoid and annul the tenures etc., that right, by reason of the wide sweep of exception b , has, for all practical purposes, ceased to exist. The new section 37 does number deprive the purchaser of the physical property, namely, the estate purchased at the revenue sale and he companytinuesto be the owner of that property and can exerciseand enforce all the rightes which his ownership giveshim, except that he cannot, by reason of the new section 37, avoid or annul the under-tenures etc. or eject the under-tenants. In other words, out of the bundle of rights companystituting the ownership acquired by him under the old section 37, an item of important right has been taken away, thereby abridging or restrictin.g his ownership. The respondent, Subodh Gopal Bose, companytends that his fundamental right, under article 19 1 f of the Constitution, namely his right to hold, that is to say, his right to enjoy and exercise the full rights of ownership in relation to the property acquired by him under the old section 37 has been I violated and, therefore, section 7 which operates retrospectively and gives retrospective operation to the new section 37 is ultra vires the Constitution and is void under article 13 1 . The learned Attorney-General has number seriously companytended that the impugned section has number prejudicially affected the right given to the purchaser by the old section 37 but he maintains that the abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37. amounts to numberhing more than the imposition of a reasonable restriction on the exercise of the right companyferred by article 19 1 f in the interests of the general public and is perfectly legitimate and permissible under clause 5 of that article. The High Court repealled the above numbered companytention and held that the restriction was unreasonable.The High Court based its companyclusions on three things, namely, 1 the retrospective operation of the impugned section, ii the absence of any provision for the abatement of the purchase price and iii the failure of the State to show any reason why the impugned section was introduced into the amending Act. The learned Attorney-General submits that the first two elements taken into companysideration by the High Court are wholly irrelevant for the purpose of determining whether the restriction imposed was reasonable in the interest of the general public. Ordinarily a statute is companystrued prospectively unless it is made retrospective by express words or necessary intendment but, the learned Attorney- General submits, the fact that a statute is expressly or by necessary implication made retrospective, does number, by itself, furnish any companyent reason for saying that the statute is prima. facie unfair and, therefore, unreasonable. While I see some force in this argument I am, nevertheless, number companyvinced that the fact of the statute being given retrospective operation may number be properly taken into companysideration in determining the reasonableness of the restriction imposed in the interest of the general public. Nor am I satisfied that the loss occasioned to the purchaser by reducing, without any abatement of the purchase price, an estate in possession into one in reversion may number also be taken into account in determining the reasonableness of the restrictions permissible under article 19 5 . As said by my Lord the Chief justice in The State of Madras v. V.G. Row 1 I 1952 S.C.R. 597 at 7.607. It is important in this companytext to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and numberabstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be. remedied thereby, the disproportion of the imposition, the prevailing companyditions at the time, should all enter into the judicial verdict. As regards ,the third element, the High Court has pointed out that numbersuggestion had been made before it that the number of pending suits or proceeding for ejectment of tenants was abnormally large or that there was any other companyent reason for introducing the impugned section in the amending Act. Indeed, in the later case of Iswari Prasad v. N.R. Sen 1 a special bench of the same High Court, companysisting of three learned Judges including the two who had decided the case under appeal before us, has distinguished the very judgment from the one then under appeal, and in doing so, laid great emphasis on the absence of any such suggestion in this case. The High Court held that those circumstances were present in the later case and accordingly held that the law impugned in the later case was number unconstitutional. It is, indeed, very unfortunate that several important matters which would have assisted the High Court in arriving at a right companyclusion as to the reasonableness of the restrictions imposed by the impugned section were number brought to the numberice of the High Court. Thus, for example, the statement of objects and reasons appended to the Bill which eventually became the amending Act does number appear to have been placed before the High Court. The statement of the objects and, reasons appended to the Bill quite clearly refers to the great hardship caused by the application of the old section 37 to a large number of people in the urban area and particularly in Calcutta 1 55 C.W.N. 719 at p. 727. and its suburbs where the then prevailing phenomenal increase in land values had supplied the necessary incentive to speculative purchasers in exploiting that section for unwarranted large-scale eviction and maintains, according to the sponsor-of the Bill, that such large-scale evictions necessitated the enlargement of the scope of protection of that section, with due safeguards for the securing of Government revenue. It is well settled by this companyrt that the statement of objects and reasons is number admissible as an aid to the companystruction of a statute see Aswini Kumar Ghose v. Arabinda Bose 1 and 1 am number, therefore, referring to it for the purpose of companystruing any part of the Act or of ascertaining the meaning of any word used in the Act but I am referring to it only for the limited purpose of ascertaining the companyditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. Those are all matters which, as already stated, must enter into the judicial verdict as to the reasonableness of the restrictions which article 19 5 permits to be imposed on the exercise of the right guaranteed by article 19 1 f . Further, there is another significant fact which does number appear to have been pressed on the attention of the High Court. The Bill had been. introduced in the Legislature on the 23rd March, 1949, and was referred to a select companymittee. On the 25th April, 1949, when the Bengal Legislature was number in session West Bengal Ordinance No. 1 of 1949 was passed, The two preambles to that Ordinance recited as follows Whereas it is expedient, pending the enactment of further legislation, to provide for the temporary stay of certain suits, proceedings and appeals in pursuance of the Act And whereas the West Bengal Legislature is number in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action The fact that an Ordinance had to be passed pending the passing of this Bill and the preambles to the 1 1953 S.C.R. 1. Ordinance do undoubtedly indicate that, in the opinion of the authorities, the then prevailing companyditions disclosed a serious evil which urgently necessitated the taking of immediate action. Further, it appears from the judgment delivered by the High Court on the application subsequently made by the State for leave to appeal to this companyrt that a number of cases were pending before the companyrts in which the same question was involved. This is also a circumstance which was number brought to the numberice of the High Court before the judgment under appeal was pronounced. Finally, in the judgment under appeal I find numberreference to the proviso to the new section 37 which enlarges, as it were, by way of companypensation for the loss of the right of ejectment, the purchasers right to claim enhancement of rent much beyond the very limited right of enhancement of rent which, under the old section, was companyfined only to the fourth excepted under-tenures. Then there is the fact, found by the High Court, that land values had gone up so high that auction-purchasers companyld number be found who, even without the right to eject the under-tenants, would willingly pay a sum much in excess of the arrears of Government revenue which remains companystant since the permanent settlement. The cumulative effect of the foregoing facts which were number placed before the High Court much outweighs the companysideration of the pecuniary loss of the respondent, Subodh Gopal Bose, as the auction- purchaser and in the circumstances the infliction of the loss of the right to eject under-tenants can only be regarded as a reasonable restriction permitted by article 19 5 to be imposed on the exercise of the right guaranteed under article 19 1 f . In my judgment the reasons for which the High Court declared section 7 of the amending Act to be ultra vires the Constitution are numberlonger tenable in view of the circumstances number before us which were number brought to the numberice of the High Court and the decision of the High Court cannot, therefore, be sustained. An alternative-argument, however, has been raised by learned advocate for the respondent, Subodh Gopal Bose, that the impugned section violates the fundamental right secured to him by article 31 2 of the Constitution and is, therefore, void under article 13 1 . The companytention, shortly put, is that the right, companyferred by the old section 37 to avoid and annul the under- tenures and to eject the under-tenants is, by itself,property anti that as the new section 37 has taken away that property without having made any provision for I companypensation there for the impugned section is unconstitutional in that it violates the provisions of article 31 2 . The Bill which eventually became the Bengal Land Revenue Sales West Bengal Amendment Act, 1950, was introduced in the West Bengal Legislature on the 23rd March, 1949, and after having been passed by the Legislature it received the assent of the Governor on the 15th March, 1950. The Bill was, therefore, pending in the West Bengal Legislature when the Constitution ,of India came into force and was passed into law after the date of the Constitution. It does number appear, however, that the Bill was reserved for the companysideration of the President or received his assent. Therefore, the impugned law cannot claim the protection of article 31 4 and, what is more, if it is such a law as is referred to in clause 2 of article 31, then, by virtue of clause 3 , it cannot have any effect at all. The question, therefore, is as to whether the impugned section is or is number such a law as is referred to in article 31 2 . The question requires, for a proper answer, a close scrutiny of the provisions of article 31 and other relevant articles of the Constitution bearing on it. At the outset it is well to bear in mind the decision of this companyrt in A.K. Gopalans case 1 , explaining the companyrelation between the provisions of sub-clauses a to e and g of clause 1 of article 19 and articles 20, 21 and 22 of the Constitution. Kania C.J., at page 101, my Lord the present Chief Justice at pages 191-192, Mahajan J., at page 229, Mukherjea J., at pages 255256 and I at pages 302-306 expressed the view that the validity of the Preventive Detention Act companyld number be judged by the provisions of article 19. The majority 1950 S.C.R. 88. of the Bench took the view that the rights companyferred by article 19 1 a to e and g companyld be enjoyed only so long as the citizen was free and had the liberty of his person but that, the moment he was lawfully deprived of his personal liberty under article 21 he ceased to have the rightsguaranteed by article 19 I a to e and g . The result of this part of the deci sion in A.K. Gopalans case 1 was summarised in the later case of Ram Singh v. The State of Delhi 2 , by my Lord the present Chief Justice in the judgment that he delivered on behalf of himself, Kania C. 1,and myself. Said his Lordship at pages 455-456 Although personal liberty has a companytent sufficiently companyprehensive to includei the freedoms enumerated in article 19 1 , and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and companyditions subject to which alone they companyld be taken away of abridged. The interpretation of these articles and their companyrelation were elaborately dealt with by the full companyrt in Gopalans case 1 . The question arose whether section 3 of the Act was a law imposing restrictions on the right to move freely throughout the territory of India guaranteed under article 19 1 d and, as such, was liable to be tested with reference to its reasonableness under clause 5 of that article. It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did number fall within the purview of article 19 and itsvalidity was number be judged by the criteria indicated in that article but depended on its companypliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was companystitutional. Mahajan J., who by a separate judgment dissented from the majority on another point, number material for our present purpose, said at page 467 On the other points argued in the case I agree judgment of Sastri J. 1 1950 S.C.R. 88. 9 1951 S.C.R. 451. It must, therefore, be regarded as settled that the freedom referred to in article 19 1 sub-clauses a to e and g are guaranteed to a citizen of India while he is a free man. These freedoms, even when they are so available, are, however, number absolute and unbridled licence but are subject to social companytrol in that reasonable restrictions may be imposed on them by law as indicated in clauses 2 to 6 of article 19. But as soon as the citizen is lawfully deprived of his personal liberty as a result of detention, punitive or preventive, he loses his capacity to exercise the several rights enumerated in sub-clauses a to e and g of article 19 1 and cannot companyplain of the infraction of any of those rights. The validity of the law which deprived a citizen of his personal liberty which inevitably destroys his rights under the sub-clauses mentioned above cannot be judged by the test of reasonableness laid down in clauses 2 to 6 of article 19 but falls to be determined according to the provisions of articles 20, 21 and 22 of the Constitution. This, I apprehend, is the result of the two decisions of this companyrt referred to above. Such being the companyrect companyrelation between article 1 sub-clauses a to e and g on the one hand and article 21 on the other, the question necessarily arises as to the companyrelation between article 19 1 f and article 31. Article 19 1 f guarantees to a citizen,as one of his freedoms, the right to acquire, hold and dispose of property but reasonable restrictions may be imposed on the exercise of that right to the extent indicated in clause 5 . Article 31, as its heading shows guarantees to all persons, citizens and number-citizens the right to property as a fundamental right to the extent therein mentioned. What, I ask myself, is the companyrelation between article 19 1 f read with article 19 5 and article 31 ? If, as held by my Lord in A.K. Gopalans case 1 at page 191, sub-clauses a to e and g of article 19 1 read with the relevant clauses 2 to 6 presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily 1 1950 S.C.R. 88. rests, it must follow logically that article 19 1 f read with article 19 5 must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised. I found myself unable to escape from this logical companyclusion and so I said in A.K. Gopalans case at pages 304-305 But suppose a person loses his property by reason of its having been companypulsorily acquired under article 31 he loses his right to hold that property and cannot companyplain that his fundamental right under subclause f of clause 1 of article 19 has been infringed. It follows that the rights enumerated in article 19 1 subsist while the citizen has the legal capacity to exercise them. If his capacity to exercise them is gone, by reason of lawful companyviction with respect to the rights in sub- clauses a to e and g , or by reason of a lawful companypulsory acquisition with respect to the right in sub- clause f , he ceases to have those rights while his incapacity lasts. I reiterated the same opinion in my judgment in ChiranJitlals case 1 . Nothing that I have heard on the present occasion has shaken the opinion I expressed in those cases as to the companyrelation of article 19 1 f read with article 19 5 and article 31 of our Constitution. A suggestion was thrown out by my Lord in companyrse of arguments, that article 19 1 f was companycerned only with the abstract right and capacity to acquire, hold and dispose of property and had numberreference or relation to any rights in any particular property but that article 31 only was companycerned with the right to a companycrete property and there was numbercorrelation between the two articles. The matter, however, was number argued by either side and I am number prepared to express any final opinion on it. For the purpose of this appeal I am companytent to proceed on the footing that article 19 relates to abstract right as well as to right to companycrete property. I 1950 S.C.R. 869 at p. 919. 4--95 S.C.I./59 I number turn to article 31 which appears under the heading right to Property. The clauses of that article which are material for the purposes of determining the question in debate run as follows- No person shall be deprived of his property save by authority of law. No property, movable or immovable, including any interest in, or in any companypany owing, any companymercial or industrial undertaking, shall be taken possession 01 or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for companypensation for the property taken possession of or acquired and either fixes the amount of the companypensation, or specifies the principles on which, and the manner in which, the companypensation is to be determined and given. Nothing in clause 2 shall affect- a the provisions of any existing law other than a law to which the provisions of clause 6 apply, or b the provisions of any law which the State may hereafter make- for the purpose of imposing or levying any tax or penalty, or for the promotion of public health or the prevention of danger to life or property, or in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other companyntry, or otherwise, with respect to property declared by law to be evacuee property. It is suggested that the two clauses are number mutually exclusive but must be read together and that they are only companycerned with what has -been described as the States power of eminent domain which, according to Professor Willis, means the legal capacity of sovereignty, or one of its governmental organs, to take private property for a public use, upon the payment of just companypensation. Reference is made to certain passages culled from the works of eminent ancient writers like the Dutch publicist and statesman Hugo Grotius who flourished in the 17th century and William Blackstone the celebrated English jurist who wrote his Commentaries round about 1769 and from Judge Cooleys well known book on Constitutional Limitations to show that from early times jurists have insisted on three things as pre-requisites for the exercise of this power of eminent domain, namely, 1 the authority of law, 2 the requirement of public use, and 3 the payment of just companypensation. These three prerequisites which companystitute limitations on the power of eminent domain are said to have been epitomised in 1791 in the last two clauses of the Fifth Amendment to the Constitution of the United States of America. The companytention is that article 31 reproduces those three limitations on the power of eminent domain, namely, that clause 1 announces the necessity for legislative sanction as a pre-requisite for the exercise of the power, thus protecting all persons against expropriation by the State acting through its executive organ, the Government, and that clause 2 reproduces the necessity of a public purpose and payment of companypensation. It is companycluded that these important limitations on the States power of eminent domain are designed to protect a person against arbitrary deprivation of his property and they companystitute his fundamental right in relation to his property. The proposition thus formulated is certainly attractive and, indeed, has found favour with my learned companyleagues but appears to me to be open to certain objections. I say in all humility that I companysider the method of approach and the line of reasoning in support of that proposition entirely fallacious and wrong. The steps in the argument seem to be i that the power of eminent domain and the limitations thereon as explained by eminent jurists are incorporated in the Fifth Amendment to the Constitution of the United States, that clauses 1 and 2 of article 31 are companycerned with the same topic of eminent domain and iii that, therefore, clauses 1 and 2 of article 31 must be read as having reproduced the same limitations on the power of eminent domain. This line of reasoning amounts, in effect, to likening one thing with another thing and then saying that as that other thing means such and such this thing must, therefore, bear the same meaning--a method which has been deprecated by Lord Halsbury in Styles case 1 . Further, if this line of reasoning were companyrect or permissible then we might as well have said,as indeed we were asked to say, that article 21reproduced the American companystitutional limitationsa gainst deprivation of life and personal liberties and that, therefore, the expression procedure established by law to be found in article 21 meant exactly what the expression dueprocess of law occurring in the Fifth Amendmentdid. This we resolutely and definitely declinedto do in A. K. Gopalans case supra . At page 108 of the report of that case Kania C-I- expressed the view that that line of reasoning was number proper and was misleading. My Lord the present Chief Justice at page197 repelled that companytention. After quoting the words of Madison about the great and essential rights of the people my Lord companycluded at page This has been translated into positive law in Part III of the Indian Constitution, and I agree that in companystruing these provisions the high purpose and spirit of the Preamble as well as the companystitutional significance of a Declaration of Fundamental Rights should be borne in mind.This, however, is number to say that the languageof the provisions should be stretched to square withthis or that companystitutional theory in disregard of the cardinal rule of interpretation of any enactment, companystitutional or other, that its spirit, numberless than its intendment should be companylected primarily from the natural meaning of the words used. After numbericing the argument of learned companynsel for the petitioner Mukherjea J. at page 266 et scq found 1 1889 L.R. 14 A.C. 381. It impossible to introduce the American doctrine of due process of law into our article 21. If the language of our articlc 21 companyld number be stretched to square with the American due process clause so as to give effect to the suggested enlargement of the scope of our fundamental right to life and personal liberties but had to be interpreted by giving the words their ordinary natural meaning I cannot see why the language of article 31 should number bc companystrued in the usual way so as to give effect to the plain intention our Constitution- makers. I say with the utmost humility that the proper method of approach is to adopt the golden rule of companystruction referred to in the judgment of my Lord quoted above and number to start off with any kind of assumption that our Constitution must be regarded as having reproduced this or that doctrine. Apart from the erroneous line of reasoning referred to above, the companyclusion arrived at by following that reasoning appears to me to be open to serious objections on merits also. If it were companyrect to say that the two. clauses, 1 and 2 , of article 31 deal with the same topic of the States power of eminent domain which is inherent in its sovereignty then, as I pointed out in my judgment in Chiranjitlals case 1 at page 925, clause 1 . must be held to be wholly redundant and clause 2 by itself would have sufficed, for the necessity of a law is quite clearly implicit in clause 2 itself which alone would have served as a protection against State action through its executive organ, the government. Another and more serious objection against reading both the clauses as dealing only with the same topic of eminent domain is, as pointed out by me in Chiranjitlals case supra , that such companystruction will place the deprivation of property otherwise than by the taking of possession or acquisition of it outside the pale of all companystitutional protection. As I said there and as I shall also do hereafter in detail, one can companyceive of circumstances where the State, in exercise of the States police power, may have to deprive a person of his property without taking possession of it or acquiring it within the meaning of 1 1950 S.C.R. 869. article 31 2 . This police power of the State is also one of the powers inherent in the sovereignty of the State. The suggestion that the first two clauses of article 31 should be read as dealing only with eminent domain will, if accepted, lead us to hold that our Constitution has number dealt with the States police power to deprive a person of his property and has number provided for us any protection against the State by imposing any limitation on the exercise of that power. The suggested companystruction will render the enunciation of our fundamental Right to property patently incomplete. It has been urged that the States police power is recognised and regulated by article 19 clauses 2 to 6 and article 31 5 b . I shall deal with that argument in detail hereafter and show that it is quite untenable. Apart from that argument, the result of reading article 31, clauses 1 and 2 together will be to hold that our Constitution has number provided for us any protection against the exercise of the States police power either by the Legislature or by the executive. Such a companyclusion I am number prepared to accept. Accordingly I thus explained what I companyceived to be the true scope and effect of clauses 1 and 2 of article 31 in Chiranjitlals case supra at page 925, namely, that clause 1 deals with deprivation of property in exercise of police power and enunciates the restriction which our Constitution-makers thought necessary or sufficient to be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and number by a mere executive fiat and that clause 2 deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. It is these limitations which companystitute our fundamental right against the States power of eminent domain. The language used in article 31 2 clearly indicates beyond doubt that the power of eminent domain as adopted in our Constitution is companycerned with only that kind of deprivation of property which is brought about by the taking of possession or acquisition companytemplated by that clause. I again adverted to this matter in The State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga 1 . It is said that such a companystruction of article 31 1 instead of enunciating any fundamental right of the people at all will, on the companytrary, declare the fundamental right of the Legislature to deprive a person of his property by merely. enacting a law. This appears to me to be a very superficial. criticism which companypletely overlooks that article 31 1 , as far as it goes, does lay down a fundamental right by imposing a limitation at least on the executive power. It is this limitation placed on the executive power that companystitutes our fundamental right to property under article31 1 . I see numbercompelling or companyent reason for changing the views I expressed on this point in my judgments in those two cases. It is necessary, at this stage, to examine the several other objections that have been taken to the companyrectness of the interpretation suggested by me. It is said that the States. police power in relation to the citizens right to freedom is fully recognised in article 19. Clause 1 of that article secures to the citizens of India seven specified rights but clauses 2 to 6 permit the State to make laws imposing reasonable limitations on the exercise of these seven rights as therein mentioned. The argument is that clauses 2 to 6 recognise the police power of the State in that they permit it to make laws imposing restrictions on the seven rights of the citizens and that they at the same time regulate that power by placing limitations upon it by requiring that the restrictions which may be imposed must be reasonable. It is then pointed out that the States police power is further saved by article 31 5 b and it is companycluded that the police power having been recognised and provided for in article 19 and article 31 5 b - there is numbernecessity to read article 31 1 as companycerned with the States police power at all. I see numberforce or validity in the aforesaid objection. I first deal with the objection in so far as it is founded on the recognition of the States police power in 1 1952 S.C.R. 889 at pp. 988-989. article 19. I say that there is numberforce in this objection for the following reasons a article 19 1 enumerates seven rights to freedom and guarantees them to the citizens of India. Clauses 2 to 6 of that article recognise and regulate the exercise of police power over those rights by the State through its legislative organ, for the State is, by those clauses, permitted to impose reasonable restrictions by law only. Therefore, it follows that article 19 does number give any protection to the citizens against the executive government in respect of even those seven rights. The citizens, however, have protection against the executive as well as the Legislature under article 21 but that protection companyers life and personal liberties only. Where, then, is the citizens protection against the exercise of police power by the executive over his property? It is numberhere except in article 31 1 as companystrued by me. Article 19 guarantees the seven rights of the citizens only and recognises and regulates the exercise of police power over those rights by the legislative organ of the State. A number-citizen is entirely outside that article and companysequently he has numbere of those seven rights and has numberprotection against the State under that article. He has, therefore, to fail back upon article 21 and companytended that all his personal liberties including the six rights enunciated in article 19 1 a to e and g are protected against the exercise of police power by the State through its executive or legislative limb. But article 21, as already observed, only protects him from deprivation of life and personal liberties. Where, then, is the number-citizens protection against deprivation of his property by the exercise of police power by the executive government. It is numberwhere unless article 31 1 is read in the way I have suggested. Finally, clauses 2 to 6 of article 19 authorise the State to make laws imposing reasonable restrictions on the citizens rights under clause 1 . It is true that in A. K. Gopalans case supra Fazl Ali J. in his dissenting judgment took the view that restrictions might companyer the case of total deprivation, but numbere of the other members of that Bench accepted that position. Kania C.J. said at page 106 Therefore, article 19 5 cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the companytention that the word deprivation includes within its scope restriction when interpreting article 21. My Lord the present Chief Justice expressed his views at p. 191 in the words following The use of the word restrictions in the various sub-clauses seems to imply, in the companytext, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words restriction and deprivation are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions articles 19- 22 relating to Right to Freedom, article 19 seems to my mind to presuppose that the citizen to whom the possession of these fundamental fights is secured retails the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests. The companytrary view expressed by a Bench of the Allahabad High Court was rejected by my Lord at the end of page 193 with the following remark their major premise that deprivation of personal liberty was a restriction within the mean- ing of article 19 is, in my judgment, erroneous. Mahajan J. expressed the same view in the following passage at page 227 in his judgment in that case Preventive detention in substance is a negation the freedom of locomotion guaranteed under article 19 1 d but it cannot be said that it merely restricts it. Mukherjea J. said at page 256 and the purpose of article 19 is to indicate the limits within which the State companyld, by legislation, impose restrictions on the exercise of these fights by the individuals. The reasonableness or otherwise of such legislation can indeed be determined by the companyrt to the extent laid down in the several clauses of article 19, though numbersuch review is permissible with regard to laws relating to deprivation oflife and personal liberty. His Lordship companycluded thus at page 264 The result is that, in my opinion, the first companytention raised by Mr. Nambiar cannot succeed and it must be held that we are number entitled to examine the reasonableness or otherwise of the Preventive Detention Act and see whether it is within the permissible bounds specified in clause 5 of article 19. After discussing the matter at some length at pages 302- 305 I companycluded on page 306 In my judgment article 19 has numberbeating on the question of the validity or otherwise of preventive detention and, that being so, clause 5 which prescribes a test of reasonableness to be defined and applied by the companyrt has numberapplication at all. A suggestion was made that although in A.K. Gopalans case supra the word restriction occurring in clauses 2 to 6 companyld number, in its application to, sub-clauses a to e and g be taken as extending to deprivation , there is numbercompelling reason to hold that the word restriction occurring in clause 5 may number in its application to sub-clause f companyer derivation There is numbersubstance in this companytention. Clause 5 companyers sub-clauses d , e and f and surely one and the same word restriction used in one and the same clause 5 cannot have one meaning in its application to sub-clauses d and e and a different meaning and companynotation in its application to subclause f . Further, the reasons why, in A.K. Gopalans case supra , that word was given a narrower meaning in its application to sub-clauses a to e and g apply mutatis mutandis in its application to sub-clause f read in companyrelation to article 31. It is, therefore, clear from the decision of this companyrt in K. Gopalans case supra that article 19 does number give any protection against deprivation of property as distinct from mere restriction imposed on the right to property. For protection against deprivation of life and personal liberties including the several rights to freedom enunciated in sub-clauses a to e and g of article 19 by the exercise of police power by the legislative or the executive organ of the State the citizen as well as the number-citizen will have to look to article 21. For protection against the deprivation of property by legislative or executive State action both the citizen and the number-citizen will have to rely on article 31. If, as I shall show presently, clause 5 b were inserted in article 31 ex abundanti cautela and number as a substantive provision defining the ambit or scope of the police power or formulating any limitation on that power, then the protection against deprivation of property will have to be derived from only clauses 1 and 2 . If, in such circumstances, both those clauses are read in the way suggested by learned companynsel for the respondent, Subodh Gopal Bose, namely, as dealing only with the topic of the States power of eminent domain then there will remain numberescape from the companyclusion that in the Republic of India neither a citizen number a number-citizen has any companystitutional protection against the exercise of police power either by the legislative or executive organ of the State. On the other hand, if the companystruction suggested by me be adopted, everybody, citizen or number- citizen, will have, under article 31 2 , full protection against the exercise the power of eminent domain by both the executive as well as Legislature and in addition to that will also have protection against the exercise of police power over property by the executive. The preservation of this protection alone, even if some may regard it as very meagre, is, to my mind, a sufficiently companyent reason for adopting the companystruction suggested by me in preference to the other companystruction which, if adopted, will number save even this meagre protection. The next objection to the companyclusion arrived at by me is that police power of depriving a person of his property is amply provided for in article 31 5 b and it is number necessary to read it into article 31 1 . A perusal of clause 5 of article 31 which 1 have already quoted will at once show that that clause excepts certain laws from the operation of clause 2 only. It will also appear that the exception companyers, under sub-clause b , only certain kinds of future laws. Item i under sub- clause b companyprises future laws imposing or levying any tax or penalty. Item ii under that sub-clause saves future laws for the promotion public health or the prevention of danger to life or property. It is said that this clause 5 b ii saves laws to be made in exercise of the States police power. The argument is that the States police power of imposing restriction on the citizens right to acquire, hold and dispose of property is recognised and companytrolled by clause 5 of article 19 and that when it becomes necessary for the police power to extend beyond restrictions and to inflict deprivation property it can do so by the kind of law which is, by clause 5 b ii of article 31, saved from the operation of clause 2 . It is pointed out that in the matter of imposition of restrictions on the exercise of the right to acquire, hold and dispose of property the only limitation on the police power is that the restrictions to be imposed by law must be reasonable as indicated in article 19 5 but that in the matter of deprivation of property by authority of law under article 31 the limitation on the police power is more stringent, namely, that such law may be made only for the promotion of public health or the prevention of danger to life or property as mentioned in clause 5 b ii and for numberother purpose. The argument thus formulated is attractive for its simplicity and has the appearance of plausibility but cannot stand the test of close scrutiny. I say so far the following reasons - Every student of Constitutional law is well aware that companystitutional lawyers classify the State sovereign power into three categories, namely, the power of taxation, the power of eminent domain and the police power. These are distinct categories of sovereign powers with different companynotations subserving different needs of the society and the State. If both clauses 1 and 2 of article 31 deal with and impose restrictions only on the States power of eminent domain, then there was numberreal necessity for exempting by article 31 5 b the taxation power or the police power from the operation of the power of eminent domain, for, ex hypothesis, the two first mentioned powers, being distinct from the power of eminent domain, did number and companyld number fail within the last mentioned power and, therefore, needed numberexemption. Even a casual student of Constitutional law knows that money is one of the kinds of property which, it is said, cannot be taken in exercise of the States power of eminent domain and that being so there companyld be numbernecessity for exempting laws imposing taxes from the operation of article 31 2 which embodies only the doctrine of eminent domain. Further, the police power, like the pOwer of taxation and the power of eminent domain, is an attribute of sovereignty itself.It is, as Professor Willis calls-it, the offspring of political necessity. This companyrcive legal capacity is inherent in every sovereign and requires numberspecific reservation. Indeed, in the Constitution of the United States there. is numberspecific reservation of the police power of the State. There was, therefore, numbernecessity for expressly saving the police power of our State by a companystitutional provision. Why, then, was clause 5 b ii inserted in article 31 at all ? The answer will become obvious if it is remembered that it is extremely difficult to define precisely the ambit and scope of the States police power over or in relation to private property and some of the instances and forms of the exercise of such police power over or in relation to property may superficially resemble the exercise of the power of eminent domain. The companyclusion, therefore, becomes irresistible that although clause 5 b ii was number strictly speaking necessary for saving the police power, nevertheless, our Constitution-makers, out of abundant caution and with a view to avoid any possible argument, thought fit to insert sub-clause 5 b ii in article 31. It is impossible to hold that the entire police power of the State to deprive a person of his property is companytained in that sub-clause. According to the argument article 31 5 b saves the power of the State to make certain laws in exercise of its power of taxation or its police power. It will be numbericed that it does number give us any protection against the Legislature by laying down any test for the validity of those laws. The acceptance of the suggested companystruction will mean that laws thus saved may be as archaic, offensive and unreasonable as the legislature may choose to make them so long as they relate to the subjects referred to in that sub-clause. If our sense of the sanctity of private property is number shocked at the prospect of leaving our property at the unfettered mercy of the Legislature in respect of laws of the kind specified in clause 5 b ii , I do number see why the companystruction suggested by me should be rejected only on the ground that it will give a carte blanche to the Legislature to make any law it pleases for the deprivation of property in exercise of police power. Article 31 5 b gives us numberprotection against the executive with respect to the exercise of these powers. Take article 31 5 b i first. That it was. number intended to be a protection against the executive in the exercise of the power of taxation cannot for a moment be doubted, for if it were so intended, there was numbernecessity, then, for inserting into the Constitution article 265 providing that numbertaxes. shall be levied or companylected except by authority of law, which clearly means that the executive cannot, on its own authority, levy or companylect any tax. It is, therefore, quite plain that article 31 5 b i was number designed to give any protection against the executive in the matter of the exercise of the power of taxation and that our Constitution-makers, precisely for that reason, companysidered that it was necessary that such protection should be given expressly and, therefore, inserted article 265. Likewise, article 31 5 b ii saves certain laws and does number in terms give us any protection against the exercise of police power by the executive. Where, then, is our protection against deprivation of property by the exercise of police power by the executive Government? It is numberhere to be found in our Constitution except in article 31 1 . This, to my mind, clearly indicates that article 31 1 was designed to formulate a fundamental right against deprivation of property by the exercise of police power by the executive arm of the State. The protection against the exercise of the power of eminent domain by the executive government is to be found in the requirement of a law which alone may authorise the taking of possession or the acquisition of the property which, as will be explained later, is implicit in article 31 2 itself and it is, therefore, number necessary to have recourse to article 31 1 to secure that protection. To say that the entire police power of the State to deprive a person of his property is to be found only in article 31 5 b ii will be to companyfine the exercise of that power by the Legislature within a very narrow and inelastic limit, namely, only for the promotion of public health or the prevention of danger to life or property. On the assumption that article 31 5 b ii is companycerned with saving the police power it may companyer the laws authorising the destruction of rotten or adulterated foodstuff or the pulling down of a dangerous dilapidated building or the demolition a building to prevent fire from spreading. But it is quite easy to companytemplate laws which do number fall within article 31 5 b ii but are, nevertheless, made mistakably in exercise of the States police power. Consider the case of a law authorising the seizure and destruction of, say, obscene pictures or blasphemous literature. Such law is clearly necessary for the promotion or protection of public morality. Nobody can for a moment think of companytending that such law will be void if it does number provide for companypensation and yet that will be the result if we are to accept the suggested companystruction, for such a law made for protecting public morality is obviously number companyered by article 31 5 b ii and will, according to such companystruction, be hit by article 31 2 . A companystruction which leads to the astounding result of companypelling the State to buy up obscene pictures and.blasphemous literature if it desires to preserve public morality cannot merit serious companysideration and must be discarded at once. Take the case of a law providing for the companypulsory companytribution by all banks based upon the average daily deposits for the purpose of creating a guarantee fund to secure the full repayment of deposits to all depositors in case any such bank becomes insolvent and i ordered to be wound up. This law quite clearly deprives the banks of property in the shape of their respective companytributions and it is number companyered by clause 5 b i as it cannot be said to impose a tax or a penalty and does number fail within 5 b ii either, for it is number a law for the promotion of public health or for the prevention of danger to life or property. This law being thus outside clause 5 b cannot, according to the suggested companystruction be supported as an instance of exercise of police power for, ex hypothesis the entire police power with regard to deprivation of property is companytained in clause 5 b and companysequently the law I have mentioned will number be protected from the operation of article 31 2 and must be void for number providing any companypensation. Yet in the United States where so much is made of the sanctity of private property and from where we are prone to draw inspiration in these matters such a law has been upheld as ,constitutional, as an instance of a valid exercise of the States-police power which extends to all the great public needs. See Noble State Bank v. Haskell 1 . Again, suppose there is a labour dispute between, say, a tramway companypany and its workers and the running of the tram cars is stopped. A law which in such circumstances authorises the State to take possession of the tram depot and run the tram cars by the military or other personnel during such emergency for the companyvenience of the travelling public is number within clause 5 b ii and on this companystruction will be void if it does number provide for companypensation to the tramway companypany. On the suggested companystruction pushed to its logical companyclusion it will number be possible in future to impose any social companytrol on the profiteers or blackmarketeers, for a law companytrolling and fixing prices of essential supplies will always deprive them of property of the value to be measured by the difference between 1 219 U.S. 104. the blackmarket price and the companytrolled price. The suggested companystruction may even make it difficult to support any future law companytaining provisions similar to those in the procedure companyes or other laws number strictly falling within the clause 5 b ii but authorising the seizure of books, documents or other property or the appointment of a receiver or sequestrator to take possession of property, for in all such cases there will be a deprivation of property. It is unnecessary to multiply instances. The several instances I have just given above appear to me to furnish ample justification for rejecting a companystruction which may make it impossible for the State to undertake beneficial legislation to promote social interest and may invalidate laws of the kind I have mentioned. Article 31 5 b ii saves from the operation of clause 2 laws to be made in future for the promotion of public health or the prevention of danger to life or property. Obviously it was companytemplated that the laws thus saved would involve the taking of possession or acquisition of private property, for otherwise there would be numbernecessity for the exemption at all. Take the case of a law authorising the opening out of a companygested part of a town and the acquisition of land for the laying out of a public park for affording fresh air and other health amenities to the public. Consider the case of a law authorising the clearing up of slums and the closing down of putrid and unhealthy surface drains and acquisition of land for broadening the lanes so as to lay underground sewers thereunder. One may also refer to a law authorising the acquisition of land for the erection of a hospital for patients suffering from infectious diseases, e.g., plague, small-pox and cholera. All these laws will ,come under the heading of promotion of public health or the prevention of danger to life. According to the suggested companystruction the acquisition of property authorised by each of these laws will be exempt from payment of companypensation to the owner, for these laws are, by clause 5 b ii exempted from article 31 2 . And yet acquisition of land for such public purposes is precisely the kind of acquisition which is always made on payment of 5--95 s.C.I.159 companypensation under the Land Acquisition Act 1894. A companystruction which takes a law made really and essentially in exercise of the power of eminent domain out of article 31 2 cannot readily be accepted as companyent or companyrect. The companyplexities of modern States companystantly give rise to companyflicts between opposing social interest and it is easy to visualise circumstances when much wider social companytrol legislation than is envisaged or recognised in the laws referred to in article 31 5 b will be imperatively necessary. Indeed, as Professor Willoughby states in his Constitutional Law of the United States, Vol. III, p. 1774, the police power knows numberdefinite limit. It extends to every possible phase of what the Courts deem to be the public welfare. In the language used by Holmes J. in Noble State Bank v. Haskell supra , it may be said in a general way that the police power extends to all the great public needs. In Eubank v. Richmond 1 the Court said of the police power It extends number only to regulation which promote the public health, morals, and safety, but to those which promote the public companyvenience or the general prosperity It is the most essential of powers, at times most insistent, and always one of the least limitable of the powers of government. And all the more will such wide police powers be required in a State which, like our own, aims at being a welfare State governed by the directive principles of State policy such as are to be found in Chapter IV of our Constitution. To so companyfine the States police power as suggested by learned advocate for the respondent will be to bring about social stagnation and thereby to retard the progress of our State. There is numberhing in the language of our Constitution which companypels us to adopt such a companystruction. In my judgment a companystruction which is calculated to produce the undesirable result I have mentioned must, I feel sure, be rejected. 1 226 U.S. 137. The last objection to reading article31 1 as the enunciation of the fundamental right against deprivation of property by the exercise of police power and reading article 31 2 as laying down limitations on the States power of eminent domain is that so read article 31 will, in reality, afford numbereffective protection at all, for the State will always exercise its police power under article 31 1 and deprive a person of his property without any companypensation by the simple device of making a law and will never exercise its power of eminent domain under article 31 2 . Where, then, it is asked, is our protection against the State with respect to our property ? The objection thus formulated overlooks the difference between the nature and purpose of the two powers which I shall presently discuss and explain and is number otherwise well rounded for the following reasons It is incorrect to say that article 31 1 as companystrued by me gives numberprotection at all. It certainly gives protection against deprivation of property by executive fiat just as did that part of the famous 29th Clause of the Magna Charta which proclaimed that numberfree person should be dispossessed of any free tenement of his except by the law of the land. As pointed out by Mathews J. in joseph Hurtado v. People of California 1 , by the 29th Clause of the Magna Charta the English Barons were number providing for security against their own body or in favour of the companymons by limiting the power of Parliament but were protecting themselves against oppression and usurpation of the Kings prerogatives. In other words, that clause of the Magna Charta was number designed as a protection against Parliament at all and indeed did number purport to formulate any limitation on the Sates power of eminent domain but was only intended to be a protection against the exercise of police power by the highest executive, the King. There is unmistakably a familiar ring in the language of our article 31 1 echoing the sound of the language of the 29th Clause of that great charter which the English Barons had wrested from their King. The purpose and function 1 1883 10 U.g. 516 at p. 531. of our article 31 1 , as I apprehend it, are the same as those of the Magna Charta. Our Constitution has given us ample protection against the executive in relation to all the three sovereign powers of the State. Thus the executive cannot, on its own authority, and without the sanction of a law deprive any person of his life or personal liberty by reason of article 21 or of his property because of article 31 1 or take possession of or acquire private property under article 31 2 or impose any tax under article 265. Our Constitution makers evidently companysidered the protection against deprivation of property in exercise of police power or of the power of eminent domain by the executive to be of greater importance than the protection against deprivation of property brought about by the exercise of the power of taxation by the executive, for they found a place for the first mentioned protection in article 31 1 and 2 set out in Part III dealing with fundamental rights while they placed the last mentioned protection in article 265 to be found in Part XII dealing with finance etc. So with regard to all the three sovereign powers we have companyplete protection against the executive organ of the State. It is said we have numberprotection against legislative tyranny in respect of our property. This companyplaint obviously is number well rounded, for our Constitution has given us some measure of protection against the legislature in respect of our property. Thus if the State exercises its power of eminent domain by taking possession of or acquiring private property of any person it must do so upon the three companyditions prescribed by article 31 2 . There is numbershorter cut in such a case. Apart from this the citizens of India have further protection against the legislature in respect of their right to acquire, hold and dispose of property. This right is guaranteed to them by article 19 1 f . The Constitution, however, recognises by clause 5 that the State has police power to restrict the right in the interest of the general public or for the protection of the interests of any Scheduled tribe but prescribes a limitation on this police power by requiring that the restrictions to be imposed by law must be reasonable. This requirement companystitutes the citizens fundamental right against the exercise of police power by the legislature in respect of his fight under article 19 1 f whilst they are in possession and enjoyment of this right. It is then urged that our Constitution, according to my companystruction of it, does number give us any protection against the legislature in the matter of deprivation of property in exercise of the States police power. This is numberground for rejecting my companystruction, for, on the companystruction suggested to the companytrary, the position is exactly the same, for article 31 5 b only saves certain laws from article 31 2 , that is to say, recognises the police power but does number formulate any test for determining the validity of those laws which may be as unreasonable as the legislature may make them. Apart from this, what, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation ? None. whatever. By exercising its power of taxation by law the State may deprive uS, citizen or number-citizen of almost sixteen annas in the rupee of our income. What, I next ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty ? None, except the requirement of article 21, namely, a procedure to be established by the legislature itself and a skeleton procedure prescribed in article 22. In A.K. Gopalans case supra , numberwithstanding the reference made to the epigrammatic observation of Bronson J. in Taylor v. Porte 1 to the effect that it sounded very much like the Constitution speaking to the legislature that the latter companyld number infringe our right unless it chose to do so, the majority of this Court declined to question the wisdom and policy of the Constitution or to stretch the language of article 21 so as to square it with its own numberions of what the ambit of the right should be but felt bound to give effect to the plain words of the Constitution. See Kania C.J. at page 11, Mukherjea J. at page 277 and my judgment at page 321 . If, 1 4 Hill 140. therefore, in the matter of deprivation of property by the exercise of the States power of taxation our Constitution has only given us protection by article 265 against the executive but numbere whatever against the legislature and if, in the matter of deprivation of our life and personal liberty our Constitution has given us numberbetter protection against the legislature than the requirement of a procedure to be established by the legislature itself and the skeleton procedure prescribed by article 22, and seeking that our Constitution has, by article 31 2 , given us protection against the legislature at least with respect to the exercise of the power of eminent domain, what is there to companyplain of ,if, in the matter 015 deprivation of property by the exercise of the States police power, our Constitution has, by article 31 1 , given us protection only against the executive but numbere against the legislature ? What is abnormal if our Constitution has trusted the legislature, as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament or State legislatures should act like mad men and deprive us of our property without any rhyme or reason ? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be numberjustification for stretching the language of the Constitution to bring it into line with our numberion of what an ideal Constitution should be. To do so is number to interpret the Constitution but to make a new Constitution by unmaking the one which the people of India have given to themselves. That, I apprehend, is number the function of the companyrt. If the Constitution, properly companystrued according to the cardinal rules of interpretation, appears to some to disclose any defect or lacuna the appeal must be to the authority companypetent to amend the Constitution and number to the companyrt. Further, there may be quite companyent and companypelling reason why our Constitution does number provide for any protection against the legislature in the matter of deprivation of property otherwise than by taking of possession or acquisition of it. It is futile to cling to our numberions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined m our Constitution the numberions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has number unmistakably shifted from the individual to the companymunity. We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social interest in individual liberty or property to the larger social interest in the rights of the companymunity. As already observed, the police power of the State is the most essential of powers, at times most insistent, and always one of the least limitable powers of the government. Social interests are ever expanding and are too numerous to enumerate or even to anticipate and, therefore, it is number possible to circumscribe the limits of social companytrol to be exercised by the State or adopt a companystruction which will companyfine it within the narrow limits of article 31 5 b ii . It must be left to the State to decide when and how and to what extent it should exercise this social companytrol. Our Constitution has number thought fit to leave the responsibility of depriving a person of his property, whether it be in exercise of the power of eminent domain or of the police power, to the will or caprice of the executive but has left it to that of the legislature. In the matter of deprivation of property otherwise than by the taking of possession or by the acquisition of it within the meaning of article 31 2 our Constitution has trusted our legislature and has number thought fit to impose any limitation on the legislatures exercise of the States police power over private property. Our protection against legislative tyranny, if any, lies, in ultimate analysis, in a free and intelligent public opinion which must eventually assert itself. Having dealt with the companyrelation between clauses 1 and 2 of article 31 as I apprehend it and having companysidered and rejected the objections to the companyclusions I have arrived at, I proceed number to examine and analyse the provisions of clause 2 . As I explained in my judgment in the Darbhanga case supra at pp. 989-990, article 31 2 has imposed three companyditions on the exercise of the States power of eminent domain over private property and those limitations companystitute the protection granted tO the owner of the property as his fundamental right. It insists that this sovereign power may be exercised only if it is authorised by a law. It is, therefore, clear that the executive limb of the State cannot exercise this power on its own authority and without the sanction of law. The taking of possession or acquisition must be for a public purpose which implies that this power cannot be exercised except for implementing a public purpose. It cannot be exercised for a private purpose. What is a public purpose has been elaborately dealt with in that case and need number be discussed over again here. Finally, the law authorising the taking of possession or acquisition of the property must provide for companypensation. Compensation, therefore, is payable only when the State takes possession of or acquires private property. What, then, is the meaning of the words. taken possession of or acquired, and their grammatical variations as used in article 31 2 ? It is pointed out that the last clause of the Fifth Amendment which deals with eminent domain uses the word taken and it is suggested that as our article 31 2 deals with the same topic of eminent domain it will be reasonable to hold that our article 31 2 reproduces the American companystitutional limitations and that, therefore, the expression taken possession of or acquired used in our article 31 2 must be read as having the same meaning which has been attributed , by the Judges of the Supreme Court of the United States to the word taken occurring in their Fifth Amendment. I am quite unable to accept this companystruction and the line of reasoning on which it is founded. In the first place, I deprecate the line of reasoning which starts by likening one thing with another and then ends by imputing the qualities of the other thing to the first mentioned thing. The cardinal rule of interpretation is to ascertain the meaning and effect of an enactment, companystitutional or otherwise, from the words used therein. If the words used have acquired a technical or special meaning, that meaning must be given to them. To say that the expression taken possession of or acquired must be read as taken and given. the same wide meaning as the American companyrts have given to the word taken is to ignore the entire historical background of the law relating to companypulsory acquisition of private property by the State. Under the English law, on which more or less our modern laws are rounded, the term acquisition has a special meaning. It companynotes the idea of transfer of title, voluntary or involuntary. When the acquisition by the State is effected by agreement after negotiation there is a regular companyveyance transferring the title from the vendor to the State. Even when the acquisition by the State is effected by the companyrcive -process of exercising its sovereign power the idea of purchase is nevertheless present, for there is vesting of the property in the State by operation of law. Acquisition of private property by the State under the English law, therefore, companynotes the companycept of a purchase, voluntary or involuntary, and involves a transfer of the entire title from the owner to the State or a third party for whom the State acquires the property. In India, the companypulsory acquisition of private property was first introduced by Bengal Regulation I of 1824. Since then we have had numberless than seven Acts dealing with the companypulsory acquisition of private property by the State, namely, Act I of 1850, Act XLII of 1850, Act XX of 1852, Act I of 1854, Act. XXII of 1863, Act X of 1870 and lastly the present Land Acquisition Act, Act I of 1894. Each, of these Acts provides for the vesting of the acquired property in the State. This means that the owner is divested and his title passes, by operation of law to the State. The word acquisition, therefore, has become, as it were, a word of art having a long accepted legislative meaning implying the transfer of title. It will be quite wrong, according to the companyrect principles of interpretation, number to give the word acquisition and its grammatical variations this technical and special meaning I, therefore, respectfully agree-with what Mukherjea J. said in Chiranjit Lals case supra at page 902, namely It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving numberhing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 2 of the Constitution itself makes a clear distinction, between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of companypensation to the displaced or expropriated holder of the property. In the companytext in which the, word acquisition appears in article 31 2 , it can only mean and refer to acquisition of the entire, interest of the previous holder by transfer of title and It follows from what has been stated above that the word acquired used in article 31 2 must be given the special meaning which that word has acquired and cannot be read as synonymous with taken as used in the Fifth Amendment to the Constitution of the United States. It is then suggested that any rate the expression taken possession of should be read in the sense in which the word taken is understood in the American law. But even in America the word taken has number always been interpreted in the same way. The old view was that in order to be a taken there must be either an actual taking of physical property or a physical occupancy of some physical property. This view was, however, regarded as too narrow and mechanical. It was said that the ownership of a thing, tangible or intangible, was made up of the rights, powers, privileges and immunities companycerning that thing and that the property was number the thing itself but companysisted of these rights, powers, privileges and immunities. It was, therefore, companycluded that there must be a taking whenever there was any injury to property otherwise than by the police power or taxation which, if done by a private individual, would be actionable as a tort in other words that it must be held that there would be a taking whenever any of the rights, powers, privileges or immunities making up the ownership was taken from the owner. Indeed, this wide interpretation of the word taken was facilitated by the fact that, in order to avoid the old, narrow view of the meaning of that word, many of the States so amended their Constitutions as to require companypensation for property damaged, injured or destroyed for a public use. See Professor Willis Constitutional Law, pp. 820-821 . Our Constitution-makers were well aware of the very wide meaning eventually given to the word taken by the American companyrts. They did number, however, use the word taken in article 31 2 which they would surely have done if they intended to reproduce the wide American companycept of taking. Our Constitution-makers, on the companytrary, deliberately chose to adopt the narrower view point and accordingly used the words taken possession of in order to make it quite clear that they required companypensation to be paid only when there was an actual taking of the property out of the possession of the owner or possessor into the possession of the State or its numberinee. Of companyrse the manner of taking possession must depend on the nature of the property itself. I repeat with humility that it is number permissible to ignore the historical background and the actual words used in our Constitution. It is finally said that both clauses 1 and 2 of article 31deal with the topic of eminent domain and, therefore,the expression taken possession of or acquiredoccurring in clause 2 has the same meaning which the word deprived used in clause 1 has In other words, both the clauses are companycerned with deprivation of property and there is numberreason to think that the expression taken possession of or acquired was usedin clause 2 to indicate any particular kind or shadeof deprivation. The Obvious retort that at once companyes to ones mind is that if it were intended by our Constitution- makers to companyvey the same general idea of deprivation of property by whatever means or mode it was brought about why did they use the word deprived in clause 1 and why did they use in clause 2 a different expression which, as companymonly used and understood, companynotes a much narrower meaning ? It would have been quite easy to frame clause 2 by using the word deprived instead of the expression taken possession of oracquired. As our Constitution-makers used different expressions in the two clauses it must be held that they had done so for a very definite purpose and that purpose companyld be numberhing else but to provide for companypensation for only a particular kind of deprivation specifically mentioned and number for any and every kind of deprivation. In this companynection reference may be made to Entry 33 in List I, Entry 36 in List II and Entry 42 in List III of the Seventh Schedule. The words used in those entries are acquisition or requisitioning ortheir grammatical variations. The legislative powerbeing companyfined only to acquisition or requisitioningit will number be unreasonable to hold that taking of possession referred to in article 31 2 is in the nature of requisitioning. In section 299 2 of the Government of India Act the words taking of possession did number occur number did they occur in any of the legislative lists in the Seventh Schedule to that Act, but they have been introduced in article 31 2 and in the three entries mentioned above the word requisitioning has been added after the word acquisition. If taken possession of or acquired-occurring in article 31 2 be given a meaning wider than what is meant by acquired or requisitioned or their variations used in the entries then it will amount to saying that article 31- 2 even companytemplates a law with the respect to matters which are beyond the legislative powers companyferred on Parliament and the State Legislatures, for they can only make a law with respect to acquisition or requisitioning. To companynter this reasoning it is pointed out that Parliament under the Union List has the residuary power of legislation and, therefore, there is numberdifficulty in giving a wider meaning to the expression taken possession of or acquired. It will then amount to giving one and the same expression different meanings. Thus in its application to a law made by the State Legislature taken possession of or acquired must perforce mean requisitioned or acquired whereas in its application to a law made by Parliament it will have a much wider meaning. This is opposed to the cardinal rules interpretation. Therefore, taken possession of or acquired should be read as indicative of the companycept of requisition or acquisition. A further question, however, arises at this stage and it may be number companysidered. Does every taking of a thing into the custody of the State or its numberinee necessarily mean the taking of possession of that thing within the meaning of article 31 2 so as to call for companypensation ? The exercise of police power in relation to property may companyceivably result in the extinction or destruction of the property or in the State taking the property in its companytrol. Take the case of the law authorising the municipal bailiff to seize rotten vegetables or adulterated foodstuffs and destroy them or to enter upon the property of a private owner to pull down the dilapidated structure. Consider the law authorising the men of the fire brigade to go upon the property of a private owner and demolish it to prevent the fire from spreading to the houses beyond or on the other side of that house. Take the case of the law authorising the seizure and destruction of property for the protection of public morality. Although in numbere of the above cases there is any acquisition of property involving a transfer of title, there is in each of the above cases a taking of possession and destruction of property by the State by authority of law and yet numberody will say that any of the above laws authorise the taking of possession of the property within the meaning of article 31 2 so that if such law does number provide for companypensation the law will be unconstitutional and void. Take the case of the Court of Wards Act. It is a law which authorises the State to take possession of the estate of a disqualified proprietor and to manage it for him. The State only manages the estate on behalf and for the benefit of the disqualified proprietor. The disqualified proprietor does number appoint the State or any State official to manage his estate and he cannot dismiss or discharge the manager appointed by the State. The possession of the manager can hardly, in such a situation, be described as the possession of the disqualified proprietor. The disqualified proprietor is, therefore, in a sense, deprived of the possession of his estate and the State takes the estates m its possession. The same thing may be said of the Lunacy Act. There is numbertransfer of title to the State and, therefore, there is numberacquisition of property by the State. This law, however, takes the property out of the possession of the owner who is adjudged a lunatic. But numberody will say that the Court of Wards Act or the Lunacy Act calls for companypensation. The learned Attorney-General has also drawn our attention to statutes, namely, Act XLVII of 1950 The Insurance Amendment Act, 1950 passed on the 20th May, 1950, and which has added several sections to the Insurance Act, 1938, Act LI of 1951 Railway Companies Emergency Provisions Act, 1951 , passed on the 14th September, 1951, and Act LXV of 1951 Industries Development and Regulation Act, 1951 enacted on the 30th October, 1951, in support of his companytention. He points out that each of those laws is strictly Speaking outside article 31 5 b and that the result of our holding that the taking of possession authorised by those Acts fails within article 31 2 so as to call for companypensation will be to prevent imposition of social companytrol so urgently necessary for the protection of the larger interests of the society. His argument is that the taking of possession authorised by numbere of these three Acts fails within article 31 2 and only illustrates the exercise of the States police power. As all the three Acts were passed after the Constitution came into force and as they may be challenged in future an argument rounded on them will really be begging the question in debate before us. I, therefore, prefer just to numbere the Attorney-Generals companytention and pass on and number to base my decision on companysideration of any of those Acts. Confining myself then to the illustrations given by me I think it is fairly clear from the foregoing discussion that numbere of the laws referred to above by me authorise any acquisition of property in the sense explained above and although each of them does authorise a sort of taking of possession of the property yet numberody can companytend that the taking of possession so authorised by them fails within article 31 2 . In other words, the taking of possession authorised by those laws does number amount to the exercise of the power of eminent domain but is the result of the exercise of police power. It follows, therefore, that every taking of possession does number fail within article 31 2 . What, then, is the test for determining whether a taking of possession authorised by a particular law is a taking of possession in exercise of the power of eminent domain or is a taking of possession in exercise of the States police power. I have already referred to the nature of the States police power and quoted from some American decisions showing that the States police power extends number only to regulations which promote public health, morals and safety but to those which promote the public companyvenience or the general prosperity. In its application to private property it, in some measure, resembles the exercise of the power of eminent domain. Thus the police power is exercised in the interest of the companymunity and the power of eminent domain is exercised to implement a public purpose and in both cases there is a taking of possession of private property. There is, however, a marked distinction between the exercise of these two sovereign powers. According to Professor Willis at page 717 eminent domain takes property for use by the public or for the benefit of the public, while the police power prevents people from so using their own property as to injure others. The fundamental principle which is held to justify the exercise of police power is that numberone shall use his property or exercise any of his legal rights as -injuriously to interfere with or affect the property or other legal rights of others. See Willoughby, Vol. Ill, p. 1775 . The primary purpose of police power is protection or prevention that persons may be restrained from so exercising their private rights of property, companytract or companyduct as to infringe the equal rights of others or to prejudice the interests of the companymunity. Willoughby, Vol. III, p. 1783 . When the State finds that a certain public purpose needs fulfillment and then in order to implement that public purpose the State takes possession of private property on its own account after acquiring it or even without acquiring it and having taken possession of the property the State itself uses or utilises the property or makes it over to a third party to do so for implementing that public purpose which the State has taken upon itself to serve and for which the property was taken possession of or acquired the State is said to have exercised its power of eminent domain. This power can only be exercised under a and that law must provide for companypensation. The point to numbere is that in such a case the public purpose is one which the State has set out to fulfil as its own obligation and the State takes possession on its own account to discharge its own obligation. In police power the State destroys or extinguishes or takes possession of property in order to prevent the owner from indulging in anti-social activities or otherwise inflicting injury upon the legitimate interests of other members of the companymunity either by using his property in a manner he should number do or by omitting to use it in a manner he should do. In such a case the State steps in and destroys or extinguishes only to prevent an injury to social interest or takes possession and assumes the superintendence of the property number on its own account for implementing its own public purpose but for protecting the interests of the companymunity. It is easy to perceive,though somewhat difficult to express, the distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the States police power it is neither desirable number possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular law fails into one category or the other. Without, therefore, attempting any such general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that in each case the provisions of the particular law in question will have to be carefully scrutinised in order to determine in which category falls the taking of possession authorised by such law. A companysideration of the ultimate aim, the immediate purpose and the mode and manner of the taking of possession and the duration for which such possession is taken, the effect of it on the rights of the person dispossessed and other such like elements must all determine the judicial verdict. The task is difficult and onerous but the companyrt will have to hold the scale even between the social companytrol and individual rights and determine whether, in the light of the companystitutional limitation, the operation of the law is companyfined to the legitimate sphere of the States police power or whether it has overstepped its limits and entered into the field of eminent domain. It is only in this way that the Court serves and upholds the Constitution by reconciling the companyflicting social interests. In the light of the foregoing discussions and the companyclusions reached by me I number proceed to examine the companytention. that the impugned section 7 of the amending Act VII of 1950 is unconstitutional in that it infringes Subodh Gopal Boses fundamental right to property guaranteed by article 31. The argument is 6--95 S.C. India/59. that having purchased the entire Touzine at a revenue sale the respondent Subodh Gopal Bose had under the old section 37 of the Act of 1859, acquired the valuable right to annul the under-tenures and to eject the under-tenants and that he had actually obtained a decree for ejectment but that he had been deprived of those vested rights by the operation of section 7 of the amending Act which, in effect, gave retrospective operation to the new section-37. Assuming that the right to annul under- tenures and to eject under-tenants and the decree for ejectment companye within the term property, as used in article 31 2 as to which I have companysiderable doubts the question at once arises whether they have been taken possession of or acquired under the impugned Act. The Touzi still remains the property of the respondent Subodh Gopal Bose. He can realise rents and exercise all acts of ownership except that he cannot exercise the right to annul the under-tenures or eject any under-tenants or execute the decree he has obtained. But have these last mentioned rights been taken possession of or acquired by the State within the meaning of article 31 2 ? There is numberdoubt that the State has number acquired these rights in the sense I have explained, for there has been numbertransfer, by agreement or by operation of law, of those rights from the respondent Subodh Gopal Bose to the State or anybody else. The impugned law has number vested those fights in the State or anybody else and does number authorise the State or anybody else to exercise these rights. Referring to the position of the shareholders under the Sholapur Spinning and Weaving Company Emergency Provision Act, 1950, Mukherjea J. said in his judgment in Chiranjitlals case supra at pp. 905- 906 - The State has number usurped the shareholders right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, number in exercise of the shareholders right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been numberdispossession of the shareholders from their right of voting at all. The same reasoning applies to the other fights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petitions. These rights have been restricted undoubtedly and may number be capable of being exercised to the fullest extent as long as the management by the State companytinues. Whether the restrictions are such as would bring the case within the mischief of article 19 1 f of the Constitution I will examine presently but I have numberhesitation in holding that they do number amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders. The above reasoning applies mutatis mutandis to the case number before us. The truth is that these rights have number been taken possession of or acquired at all in exercise of the power of eminent domain but have been extinguished or destroyed in exercise of the States police power to prevent public mischief and anti-social activities referred to in the objects and reasons appended to the bill which eventually became the impugned law. In the premises, the respondent Subodh Gopal Bose has been deprived of his property, if these rights can be properly so described, by authority of law and the case fails within article 31 1 and number within article 31 2 at all. If the impugned section is regarded as imposing a restriction on the right of Subodh Gopal Bose to hold property then, for reasons I have mentioned, I hold such restrictions, in the circumstances of this case, to be quite reasonable and permissible under article 19 5 . If the impugned section operates as an extinguishment of his right to property, treating the right to annul under- tenures and to eject under-tenants and to execute the decree for ejectment as property, then, in my judgment, these rights of the respondent Subodh Gopal Bose have number been taken possession of or acquired by the State within the meaning of article 31 2 but he has been deprived of his property by authority of law under article 31 1 which calls for numbercompensation. In the premises, the plea of unconstitutionality cannot prevail and must be rejected. I would, therefore, allow the appeal with companyts both here and in the High Court. GHULAM HASAN J.--I companycur with my Lord the Chief Justice that the view of the High Court, Calcutta, that section 7 of the West Bengal Revenue Sales West Bengal Amendment Act, 1950, is void as abridging the fundamental rights of the first respondent under article 19 1 f and 5 of the Constitution cannot be sustained and I agree with the order proposed by him. JGANNADHADAS J.--l have had the advantage of reading the judgments of my Lord the Chief Justice and of my learned brother Justice S.R. Das. On the assumption that the question raised in this case is one that arises under article 19 1 f and 5 of the Constitution--that being the footing on which the learned Judges of the High Court dealt with the case--I agree with that portion of the judgment of my learned brother Justice S.R. Das which holds that the impugned section 7 of the Bengal Land-Revenue Sales West Bengal Amendment Act, 1950 West Bengal Act VII of 1950 is intra vires and for the reasons stated by him. A larger question has, however, been raised as to whether this is a case which falls within the scope of article 19 1 f and 5 or article 31 of the Constitution. Since, on either view, we are all agreed as to the final result of this appeal, I have felt rather reluctant to go into this larger question. But out of profound respect for my Lord the Chief Justice and my learned brother Justice S.R. Das who have dealt with the matter fully and out of a sense of duty to the Court, I venture to express my views briefly. My Lord the Chief Justice is inclined to the view that the fundamental right declared in article 19 1 f has numberreference to companycrete property rights but refers only to the natural rights and freedoms inherent in the status of a citizen. Even so, with respect, I fail to see how the restrictions on the exercise of those fights referred to in article 19 5 can be otherwise than with reference to companycrete property rights. To me, it appears, that article 19 1 f , while probably meant to relate to the natural rights of the citizen, companyprehends within its scope also companycrete property rights. That, I believe, is how it has been generally understood with out question in various cases these nearly four years in this Court and in the High Courts. At any rate, the restrictions on the exercise of rights envisaged in article 19 5 appear to relate--normally, if number invariably to companycrete property rights. To companystrue article 19 1 f and 5 as number having reference to companycrete property rights and restrictions on them would enable the legislature to impose unreasonable restrictions on the enjoyment of companycrete property except where such restrictions can be brought within the scope of article 31 2 by some process of companystruction . As at present advised, I am unable to give my assent to such a view. Now as regards article 31, I agree that clause 1 cannot be companystrued as being either a declaration or implied recognition of the American doctrine of police power. The negative language used therein cannot, I think with respect, be turned into the grant, express or implied, of a positive power. I need as my Lord the Chief Justice has pointed out in his judgment, numbersuch grant of police power is necessary having regard to the scheme of the Constitution. That scheme, as I understand it, is this. The respective legislatures in the companyntry have plenary powers assigned to them with reference to the various subjects companyered by the entries enumerated in the Lists of the Seventh Schedule by virtue of articles 245 to 255. These powers are subject to the limitation under article 13 that the power is number to be so exercised as to infringe the fundamental rights declared in Part III of the Constitution. And, therefore, the legislatures can exercise every power--including the police power, if it is necessary to import that companycept--within these limits, in so far as it is number provided for in article 19 2 to 6 and article 31 5 b ii or other specific provisions in the Constitution, if any. The only problem thus presented to the Courts is number as to what is the extent of the police power, but as to what is the scope and limit of the fundamental right which is alleged to have been infringed by legislative action. I agree with my learned brother Justice S.R. Das that the Constitution envisages a large measure of social companytrol a means to achieve the goal set out in the preamble and in the directive principles enumerated in Part IV. I am also of the view that the Courts may number ignore the directive principles, as having numberbearing on the interpretation of companystitutional problems, since article 31 categorically states that it shall be the duty of the State including the legislature by virtue of the definition of State in Part III made applicable by article 36 to apply these principles in making laws. While, therefore, I agree in thinking that a substantial measure of social companytrol legislation may become necessary in the fullness of time, that to my mind, is numberreason for companystruing article 31 1 as implying some undefined police power, though such a companysideration may have relevance in the determination of the ambit of a fundamental right. On the other hand, I am unable to agree with the view that article 31 1 has reference only to the power of Eminent Domain. I do number dispute that it companyprehends within its scope the requirement of the authority of law, as distinguished from executive fiat for the exercise of the power of Eminent Domain. But it appears to me that its scope may well be wider. This really depends on what is the exact meaning to be assigned to the word property as herein used and on whether deprivation companytemplated by article 31 I is in substance the same as taking possession or acquisition companytemplated in article 31 2 . My Lord the Chief Justice is inclined to the view that taking possession or acquisition is to be companystrued as having reference to and meaning deprivation or vice versa. Undoubtedly taking Possession and acquisition amount to deprivation but the companyverse may number follow in the particular companytext in which these words and phrases are used. With great respect, I can see numberwarrant for the companystruction adopted except the assumption that article 31 1 and article 31 2 refer to the same and identical topic of eminent domain and that they provide for the different requirements thereof, i.e., the requirement authority of law under article 31 1 and the requirements of public purpose and companypensation under article 31 2 . But it appears to me that if in article 31 2 acquisition and taking possession were meant to be synonymous with deprivation already used in article 31 1 there was numberreason to drop the use of the word deprivation in article 31 2 and to use other words and phrases therein. For instance, article 31 2 may well have run as follows. There shall be numberdeprivation of property, movable or immovable, for public purposes under any law authorising the same unless the law provides or some other such clause may have been suitably drafted. It appears to me that while the framers of the Constitution laid down the requirement of the authority of law for deprivation of property with a larger companynotation, they limited the requirement of payment of companypensation to what may reasonably be companyprehended within the companycepts of acquisition and taking possession. With respect, to read these words and phrases in article 31 2 as meaning the same thing as deprivation used in article 31 1 and to make the test of substantial abridgement or deprivation as the sine qua number for payment of companypensation under article 31 2 is to open the door for introduction of most, if number all the elements of wide uncertainty which have gathered round the word taken used in the companyresponding companytext in the American Constitution, numberwithstanding caution to the companytrary which my Lord the Chief Justice has indicated in his judgment. I am inclined to think that it is in order to obviate this that the framers of the Constitution deliberately avoided the use of the word deprived or deprivation in article 31 2 . I am companyscious of the principle that a Constitution has to be liberally companystrued so as to advance the companytent of the right guaranteed by it. But where, as in this case, there is, what appears, a deliberate choice of the language used, and where it is number unlikely that having regard to the goal that the Constitution has set to itself in Part IV, certain degree of caution and restraint may well have been intended as to the limits of the right, the intendment of the language used has, in my opinion, to prevail. On the other hand, I am unable to agree with my learned brother Justice S.R. Das that acquisition and taking possession in article 31 2 have to be taken as necessarily involving transfer of title or possession. The words or phrases appear to me to companyprehend all cases where the title or possession is taken out of the owner and appropriated without his companysent by transfer or extinction or by some other process, which in substance amounts to it, the possession in this companytext meaning such possession as the nature of the property admits and which the law recognises as possession. This seems to follow from the enumeration of the classes of property in article 31 2 to which it is applicable and also by reason of the broader companysideration that from the point of view of the owner or possessor whose title or possession is appropriated, every such act of appropriation stands on the same footing. That the idea of transference of title or possession is number necessarily to be implied by article 31 2 appears to me to be also indicated by article 31 5 b ii , which more often than number, would companyer cases of destruction of property. Incidentally, I may mention that I am inclined to the view, in agreement with my LOrd the Chief Justice, that article 31 5 b ii is an exception to article 31 2 and is intended to absolve the need for payment of companypensation for acquisition or taking possession of property for the purposes specified therein. It, therefore, seems to imply payment of companypensation, if such acquisition or taking possession of property is for other purposes. The question then remains as to what is property companytemplated by article 31 2 , apart from the specified categories included therein by enumeration in the phrase any interest in, or in any companypany owning, any companymercial or industrial undertaking. It is numberdoubt true that in a wide sense, property companynotes number only a companycrete thing--corporeal or incorporeal--but all the bundle of rights which companystitute the ownership thereof and probably also each individual fight out of that bundle in relation to such ownership. But in the companytext of article 31 2 --as in the companynate companytext of article 19 1 f --the companynotation of the word is limited by the accompanying words acquisition and taken possession. Hence out of the general and wide category falling within the companynotation of the word property, only that which can be the subject matter of acquisition or taking possession, is the property which is within the scope of article 31 2 . This to my mind excludes, for instance, a bare individual right, out of the bundle of rights which go to make up property as being itself property for purposes of article 31 2 , unless such individual right is in itself recognised by law as property or as an interest in property--an easement, a profits-a-prendre and the like--and as capable of distinctive acquisition or possession. Thus for instance in the case with which we are companycerned in the present appeal, the right to annul under-tenures cannot in itself be treated as property, for it is number capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the rights as regards the main property itself and hence must fail under article 19 1 f taken with 19 5 , according to my understanding thereof. In my view, however, the word property as used in article 31 1 may have been intended to be understood in a wider sense and deprivation of any individual right out of a bundle of rights companystituting companycrete property may be deprivation of property which would require the authority of law. I am aware of the possible criticism that in two parts of the same article the same word must be intended to have been used in the same sense. While this is a numbermal rule of companystruction, it can yield to the requirement of the companytext arising from the juxtaposition of other words or phrases. To my mind article 31 1 , though part of an article is in essence1 an independent provision to some extent overlapping with the requirements of the law of Eminent Domain.

Case appeal was accepted by the Supreme Court

Bhagwati, J. This is an appeal from the judgment and order of the High Court of judicature at Madras upon a reference made by the Income-tax Appellate Tribunal under Section 66 I of the Indian Income-tax Act, 1922. The appellant companypany, the assessee, is incorporated in the United Kingdom under the English Companies Act and has its registered office in London. It own a spinning and weaving mill at Pondicherry in French India where it Manufactures yarn and cloth. Messrs. Best and Co., Ltd., Madras, have been appointed the agents of the assessee under an agreement dated the July 11, 1939, and have been invested with full powers in companynection with the business of the assessee in the matter of purchasing stock, singing bills and other negotiable instruments and receipts and settling. companypounding or companypromising any claim by against the assessee. The yarn and companyton manufactured in Pondicherry were sold mostly in British India and partly outside British India. In the accounting years 1941 and 1942 all the companytracts in respect of the sales in British India were entered into in British India and the deliveries were made payments received in British India. In regard to the sales outside British India also, payments in respect of such sales were received in Madras through the said agents. The total sales of the goods in the assessment year 1942-43 were Rs. 69,69,145 and for the assessment year 1943-44 were Rs. 93,48,822. The value of the sales in British India amounted to Rs. 57,07,431 for the assessment year 1942-43 and to Rs. 67,98,356 for the assessment year 1943-44. The value of the total sales outside British India amounted to Rs. 12,61,714 for the year 1942-43 and Rs. 25,50,472 for the year 1943-44. Out of the said amounts received in respect of the foreign sales the amounts received in British India were Rs. 9,62,434 for 1942-43 and Rs. 75,230 for 1943-44 and the amounts received outside British India were Rs. 2,99,280 for 1942-43 and Rs. 24,75,242 for 1943-44. On these facts the Income-tax Officer found that the assessee was resident in British India within the meaning of Section 4A c b of the Act reason of its income arising in British India in the year of account exceeding its income arising without British India and on that basis he assessed the companypany for the two assessment years 1942-43 and accrued to the companypany both within and without British India under Section 4 I b i and ii of Act. The order of the Income-tax Officer was companyfirmed by the Appellate Assistant Commissioner and the order of the Appellate Assistant Commissioner was companyfirmed by the Appellate Tribunal on the May 15, 1946. The assessee applied to the Appellate Tribunal under Section 66 I of the Act for reference to the High Court of certain question of law arising out of its order. The Commissioner of Income-tax in his reply suggested the following two questions for reference - Whether, on the facts and in the circumstances of the case, the appellate Tribunal was right in holding that the Section 42 I and 3 of the Income-tax Act has numberapplication to income accruing or arising to the assessee companypany in British India or to income received by it in British India during the previous year ? Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the entire income of the assessee companypany during the accounting year ended December 31, 1941, was assessable under Section 4 1 of the Income-tax Act, and that numberportion of such income was entitled to be exempted under Section 42 3 of the Act ? The Appellate Tribunal however referred the following questions to the High Court - Whether on the facts and in the circumstances of the case, Section 42 1 and 3 of the Act alone and lot Section 4 of the Act have application to the income accruing or arising to the assessee companypany in British India and to the income attributable to the sale proceeds received by it in British India during the previous year ? Whether on the facts and in the circumstances of this case the entire profits and gains arising to the assessee companypany in British India should be taken into account for the purpose of applying the test laid down under Section 4A c b or only that part of the profits which companyld be determined after the application of Section 42 3 of the Act as reasonably be attributable to that part of the operations carried on in British India ? and Whether on the facts and in the circumstances of the case, the provisions of the Indian Income-tax Act companytained in Section 4 1 with the sub-sections and section 4A c b are number ultra vires in so far as they seek to assess foreign income of the companypany registered outside British India ? The third question was companycluded by the decision of their Lordships of the privy Council in the case of Wallace Bros. Co., Ltd. and was therefore number argued before the High Court and the High Court answered it by stating that the provisions of Section 4 1 and Section 4A c b of the Act were number ultra virus the Indian Legislature. The question 1 was further amended by agreement between the learned companynsel for the revenue authority and the assessee and it was reframed as under - Whether on the facts and in the circumstances of the case Section 42 1 and 3 of the Act alone and number Section 4 of the Act have application to the income accruing or arising by reason of sales in British India of manufactured goods where the manufacturing process took place outside British India. The question 2 was retained in the form in which it had been referred by the Appellate tribunal, both these questions were answered against the assessee by the High Court. The assessee obtained the necessary certificate from the High Court for leave to appeal to this Court and hence this appeal. It may be observed that in replay to the numberice under Section 22 2 and 38 of the Act for the assessment year 1942-43 the agents of the assessee had on the June 1, 1943, submitted a return under protest and had claimed that the income shown in the return should be apportioned under Section 42 3 of the Act as between the operations carried on in British India and operations carried on outside British India. They had further declared that the companypany was number-resident in British India during the previous year for which the return was made. In the statement enclosed therewith the total world income for the year ended December 31, 1941, had been shown at Rs. 10,23,907. Profit at 10 per cent. on British Indian sales which aggregated to Rs. 57,07,431 was shown at Rs. 5,70,743 and after deduction of the proportionate expenses relating to sales in British India and sundry charges was put down at the net figure of Rs. 4,58,026 which was shown as the British India Income. It was, thus companytended that the income arising in British India in the year of account did number exceed its income arising without British India and that therefore the assessee was number-resident in British India. This calculation of profits at the rate of 10 per cent. on British India sales did number make any allocation of profits and all the profits arising out of British Indian sales were shown in one lump sum. The Income-tax officer took it as settled law that the profits arose in the companyntry in which the sales took place and as the bulk of the sales had taken place in British India the bulk of the profit accrued or arose in British India. He held that the provisions of Section 42 3 would apply only where the profits arose outside British India but which you virtue of Section 42 1 were deemed to accrue or arise in British India, and that it did number apply where the profits actually arose in British India by the sale of goods in British India. He therefore held that the entire profits on sale made in British India and were liable to tax under Section 4B I c . On a calculation of the figures he came to the companyclusion that the income of the assessee arising in British India in accounting year exceeded its income arising without British India and that the assessee was also held ordinarily resident in British India under Section 4A c . The assessee was was also held ordinarily resident in British India under Section 4B c and he assessed the companypany accordingly on that basis. The Appellate Assistant Commissioner also proceeded on that basis and companyfirmed the order of the Income-tax Officer. He was however further of the opinion that the entire profits were received where the sale proceeds were received and the assessee was therefore liable to tax under Section 4 1 a also. This companyclusion was arrived at by him relying upon two decisions of their Lordships of the Privy Council, Pondicherry Railway Company v. Commissioner of Income-tax, Madras, and Commissioner of Income-tax, Madras v. Diwan Bahadur Mathias, in the first of which at page 369 Lord Macmillan observed as follows Their Lordships accordingly are of opinion that the income derived by the Pondicherry Railway Company from the payments made to them by the South Indian Railway Company is, on the facts stated, received in British India within the meaning of the Act, by the agent of the Pondicherry Railway Company there on their behalf It is unnecessary to go on to companysider whether the business is carried on in British India, which is the form which question c takes, for it is enough if the profits of business carried on by the assessee are received on British India and the place where the business is carried on is number material. The Appellate Tribunal adverted to the fact that the whole income of the companypany so far as 1942-43 is companycerned was received in British India and so far as 1943-44 is companycerned a major part of it in this way was received in British India, but did number base its decision on this aspect of the case. It held that the scope of Section 42 3 was circumscribed by companyfinement to those cases where profits were deemed to accrue or arise under Section 42 alone and there was numberwarrant for extending the principle of apportionment to other cases where the profits and gains were made taxable under other section of the Act. It also held that Section 42 dealt with deemed income whereas section 4A c deals with income that arose in British India. Therefore, it companyld number be said that for the purpose of Section 4A c a proportionate deemed income should be taken as income that arose in British India. When the application for reference was made to the Appellate Tribunal the Commissioner of income-tax in the question I which he suggested included within its ambit this aspect of income having been received by the assessee in British India during the previous year. But when the Appellate Tribunal reframed the question 1 it merely companyfined it to income accruing and arising to the assessee in British India and to the income attributable to the sale proceeds received by it in British India during the previous year. The question 1 as finally framed by the High Court adverted to the income accruing or arising by reason of seas in British India on manufactured goods where manufacturing process took pace outside British India and the aspect of the income having been received by the assessee in British India was absolutely ignored. When the questions were originally referred to the High Court the position in law as then understood was that profits arose in the companyntry in which the sales took place. This position was however negatived, particularly in the case of manufacturing business, in a decision of this companyrt in Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai Co., Bombay. After hearing at companysiderable length the arguments urged before us on behalf of the assessee as well as the Income-tax authorities we feel that in view of that decision the question framed by the Tribunal and the High Court do number bring out the real point in companytroversy between the parties and it is agreed that the following two questions truly represent and bring out the matter on which the parties are at issue. We therefore resettle the questions originally framed and reframe them as below Whether in view of the finding of fact in this case that the entire profits were received in India and the companypany is liable to tax under Section 4 I a of the Act, the provision of Section 42 I have any relevancy ? Can the income received in India be said to arise in India within the meaning of Section 4A c b of the Act ? If number, should only those profits determined under Section 42 3 as attributable to the operations carried out in India be taken into account for applying the test laid down in Section 4A c b ? The case is remanded to the High Court with the direction that it should give its opinion on these two questions and submit the case to this Court within three months. In pursuance of the above order of remand the case came up for hearing before a Division Bench of the Madras High Court companysisting of SATYANARAYANA RAO and BALAKRISHNA AYYAR, JJ., and the High Court delivered the following opinion on February 13, 1953. OPINION Two question were referred to this Court for opinion by the Supreme Court by its order dated December 22, 1952. They are - Whether in view of the finding of fact in this case that the entire profits were received in India and the companypany is liable to tax under Section 4 1 a of the Act, the provisions of Section 42 1 have any relevancy ? Can the income received in India be said to arise in India within the meaning of section 4A c b of the Act ? If number, should only those profits determined under Section 42 3 as attributable to the operations carried out in India be taken in to account for applying the test laid down in Section 4A c b ? The relevant facts are number in dispute and are state in the order of remand of the Supreme Court and also in the judgment on this Court under appeal. It is, therefore, unnecessary to state them over again. It was found that the yarn and companyton manufactured in pondicherry were sold mostly in British India and partly outside British India. The companytracts in respect of the sales in in British India during the accounting year were entered into in British India and the delivery of the goods in pursuance of the companytracts was made and the sale price was received in British India. In regard to seas outside British India also, it was found that the payment of price in respect of such sales was also received in Madras. The remand was necessitated in view of the decision of the Supreme Court in Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai Co., Bombay At the time this Court pronounced the judgment number under appeal, we had number the benefit of the judgment of the supreme Court. The view we took was that in the case of a companyposite business, which companysists of manufacture and sale, where the operations are carried on at different places the profits accrued and arose in the place where the sales took place and the price was received. This view however was number accepted by the Supreme Court in the decision above referred to. The first question raises the point whether in a case where the assessment proceeds on the basis of receipt of income. Profits and gains under Section 4 1 a of the Act, where there is an allocation between manufacturing profits and merchanting profits and where the two operations were carried on at different places, the former outside British India and the merchanting operations carried on inside British India. Section 4 1 a applies to both residents and number-residents. Under this clause, the total income of any previous year includes all income, profits and gains from whatever source derived which are either received in British India in the said year by or on behalf of the assessee or deemed to be received in British India during such period. As the basis of liability in the present case was actual receipt and number deemed receipt, Section 42 has numberapplication as it applies only to profits, which are deemed under the section to accrue or arise either from any business companynection or from any asset or source of income in British India. We are omitting three other portions of Section 42 1 which are number relevant. If sub-section 1 of Section 42 does number apply to a case. The apportionment of profits under Section 42 3 does number arise. This view was taken by this Court in Burugu Nagayya and Rajanna v. Commissioner of Income-tax Madras by the Allahabad High Court in Hira Mills Ltd., v. Income-tax Officer, Cawnpore, and by the Calcutta High Court in Turner Morrison and Co., Ltd. v. Commissioner of Income-tax, West Bengal, Civil Appeal No. 41 of 1952. The view taken by the High Courts in the above decisions was accepted as laying down the law companyrectly and the Supreme Court affirmed the decision of the Calcutta High Court in Turner Morrisons case Das, J., who delivered the judgment of the Court summarised the position in the following paragraph - Mr. Mitras second main points is that assuming that there was receipt of income, profits and gains within India, such income, profits and gains clearly arose through or from a business companynection in India and, therefore, the provisions of Section 42 1 would apply and such income, profits and gains should be dealt with as income, profits and gains should be deals with as income, profits and gains deemed to accrue or arise in India and companysequently the inclusion of such income, profits and gains in the total income should be under Section 4 1 c for the Association is number-resident. Mr. Mitra urges that the charging under Section 3 is to be in accordance with and subject to the provisions of this Act. Likewise, Section 4 1 is also subject to the provisions of this Act. This, according to Mr. Mitra at once attracts Section 42 and such income, profits and gains being within Section 42 must be included in Section 4 1 c and the other alternative, i.e., Section 4 1 a , is numberlonger applicable. In other words, according to Mitras companytention, Section 4 1 a becomes a dead letter so far as income, profits and gains, arising or accruing to a number-resident are companycerned. We are unable to accede to this companynection. Section 42 only speaks of deemed income. The whole object of that section is to make certain income, profits and gains to be deemed to arise in India so as to bring them to the charge. The receipt of the income, profits and gains being one of the tests of liability, where the income, profits and gains are actually received in India, it is numberlonger necessary for the revenue authorities to have recourse to the fiction and this has been held quite clearly in Hira Mills Ltd. v. Income-tax Officer, Cawnpore and in Burugu Nagayya and Rajanna v. Commissioner of Income-tax, Madras. This is also implicit in the decision of the Privy Council in Pondicherry Railway Company Ltd. v. Commissioner of Income-tax, Madras, to which reference has already been made. Section 4 1 a in terms is, unlike Section 4 1 b or 4 1 c , number companyfined in its application to any particular category of assessees. Section 4 1 a is general and applies to a resident or a number-resident person. The second proviso to Section 4 1 although it relates to the case of a person. The second proviso to Section 4 1 although it relates to the case of person number ordinarily resident, also indicates that income, profits and gains, which accrue or arise to such person without the taxable territories can be included in his total income if they are brought into or received in the taxable territories and become chargeable to tax under Section 3 read with Section 4 1 a . For reasons herein before stated, this companytention of Mr. Mitra must be rejected. This view numberdoubt works hardship in the case of a number-resident, who has to be charged to income-tax under Section 4 1 c because in the light of the decision in Ahmedbhai Umarbhais case where the business carried on by the assessee is of a companyposite character and part of the business operations are carried on outside British India and part with in British India, profits attributable to operations outside British India, would undoubtedly accrue or arise there, i.e., outside British India. Nevertheless if the profits are received in British India they cannot be charged under Section 4 I c but must be charged under Section 4 I a . In such circumstances logic may require that there should be an allocation of profits and the tax should be restricted to merchanting profits. If the assessee did number in fact receive profits in British India though they had become receivable, he would be entitled under Section 4 c to have an allocation made of the profits. But, if he did actually receive the profits in British India, he becomes liable to tax under Section 4 a on the basis of receipt and numberquestion of apportionment of profits would arise. This hardship was number numbericed by the Supreme Court for it is stated by Das. J., in that very paragraph, which was already quoted in part, in the companycluding portion as follows - It may be that the companystruction we are adopting in agreement with the High Court may operate harshly against number-residents in that income, profits and gains attributable to business operations outside India may also be brought to charge as having been received in India and such companysequence may deter number-resident merchants from doing business in India. These indeed are serious companysiderations but the companyrts have to companystrue the statute according to the plain language and tenor thereof and if any untoward companysequences result therefrom, it is for authority, other than this companyrt, to rectify or prevent the same. In the light of the authoritative pronouncement of the Supreme Court, question No. 1 should be answered in the negative and against the assessee. In fact, both the learned companynsel appearing in the case agree that the matter is companycluded by the decision of the Supreme Court against the assessee, we answer the question accordingly. The second question is important to fix the home ore residence of the assessee companypany for income-tax purposes. Under Section 4A c a companypany is companysidered to have its residence in British India in any year a either because the companytrol and management of its affairs is situated wholly in British India in that year or b if its income arising in British India in that year exceeds its income arising without British India in the year account number being taken in either case of income chargeable under the head capital gain . The first part of clause c has numberapplication to the present case and is number relied on. The question is, therefore, restricted to Section 4A c b . The principle behind the section as stated by Lord Uthwatt in Wallace Brothers Co., Ltd. v. Commissioner of Income-tax, Bombay City and Bombay Suburban District at page 247 is - When a companypany in any particular year derives the major portion of its income from a companyntry, it is a legitimate companyclusion that the companypany has rooted itself there for that year. The companynection that results is at least as solid as the companynection given by the place if central companytrol and in a search for a home for income-tax purposes as respects that year, that companynection might well be thought more pertinent than the companynection, readily changeable and often changed, given by the place of central companytrol. In such a search, the place where companymercial activities yield the result is at least as relevant as the lace where they are companyceived. In view of the language of clause b of section 4A c regarding income arising in British India and income arising without British India. The application of Section 4 3 for the allocation of profits was number relied on before us as Section 4A c b does number speak of income deemed to accrue or arise either within or without British India and Section 42 3 cannot be invoked in a case where Section 42 I does number apply. As in the present case we are companycerned with actual arisal and number deemed arisal, the application of Section 42 3 , it has been companyceded before us, does number arise for companysideration. One has therefore to look to the language of Section 4A c b and find whether the income in the present case can be said to arise wholly in British India because it was received here or it arises partly in British India and partly outside numberwithstanding its receipt in British India by reason of the fact that the business carried on by the companypany companysisted of operations carried out of British India. The manufacturing process was undoubtedly carried outside British India. This takes us to a companysideration of the question whether or number the principle of the decision in ahmedbhai Umarbhais case which arose under the Excess profits Tax Act applies to the present case. It must be mentioned that the business carried on by the assessee companysisted of purchase of raw material on a large scale through an agent, companyversion of it into yarn and cloth, and their sale through an organization which booked orders carried them out, all of which operations resulted in a receipt of profits in British India. Some of these operations were out side British India and some were inside it. In the recent case relating to this very assessee, which went on appeal to the Supreme Court in Anglo-French Textile Co., v. Commissioner of Income- tax and was disposed of on December 22, 1953, and in which again the decision of Ahmedbhai Umarbhais case was companysidered by the Supreme Court, it was pointed out that by the mere purchase of raw materials or goods in British India and sale of the goods, it cannot be said that the profits of such sale arose or accrued only at the place where the sales were effected. In such a case the simple operation of purchase, which was also part of the business activity does number entitle either the assessee or the revenue authorities to claim an allocation of the profits between the place of purchase and the place of sale treating these two as operations which companyld be companysidered as profit producing operations to which Section 42 3 would apply. But as pointed out by Mahajan, J., in the companyrse of the judgment - While maintaining the view taken by the High Court in this case we wish to point out that it is number every business activity of a manufacturer that companyes within the expression operation to which the provisions of Section 42 3 are attracted. These provisions have numberapplication unless according to the known and accepted business numberions and usages the particular activity is regarded as a well defined business operation. Activities, which are number well defined or are of a casual or isolated character, would number ordinarily fall within the ambit of this rule. Distribution of profits on different business operations or activities ought only to be made for sufficient and companyent reasons and the observations made here are limited to the facts and circumstances of this case. In a case where all that may be known is that a few transactions of purchase of raw materials have taken place in British India, it companyld number ordinarily be said that the isolated acts were in their mature operations within the meaning of that expression. In this case the raw materials were purchased systematically and habitually through an established agency having special skill and companypetency in selecting the goods to be purchased and fixing the time and place of purchase. Such activity appears to us to be well within the import of the term operation as used in Section 42 3 of at Act. It is number in the nature of an isolated transaction of purchase of raw materials. In the present case, therefore, as found by the Supreme Court in the judgment from which we have just which we have just quoted, the operations companynected with the purchase of raw materials were systematically and habitually made through the agency of Best and Co., and it is undoubtedly an operation which companytributed to the profits of the business and this operation was in British India. The manufacturing operations were at Pondicherry, the sales were in British India and the receipt of the profits was also in British India. On the principle of the decision in Ahmedbhai Umarbhais case, apart from Section 42 and independently of it, can it be said that the entire income had arisen in British India within the meaning of Section 4A c b as the sale proceeds were received in British India ? The answer undoubtedly must be in the negative. No doubt, the view this Court took in Commissioner of Income-tax, Madras v. The Littles Oriental Balm and Pharmaceuticals Ltd., and was followed in the judgment under appeal, was to the companytrary. But in view of the decision of the Supreme Court in Ahmedbhai Umabhais case that view numberlonger prevails. Mr. Rama Rao Sahib, the learned companynsel for the Commissioner of Income-tax adopted two lines of argument to induce us number to apply to the present circumstances the law as laid down in that decision. The first was that that case was companycerned with the interpretation of the provisions of the provisions of the Excess Profits Tax Act particularly Section 5, Proviso 3, and Section 42 of the Income-tax Act which was made applicable to assessments under the Excess Profits Tax Act. It is true that one of the learned Judges, Patanjali Sastri, J., as he then was companyfined and restricted his decision to the provisions of the Excess Profits Tax Act read with the provisions of the Income-tax Act. His Lordship was number prepared to accept the companytention that apart from statutory provisions, there was a principle of apportionment or allocation of profits between various operations of a companyposite business deducible from the decisions of the Privy Council in Kirks case Chumilal Mehtas and International Harvesters case. His Lordship observed at page 486 referring to Kirks case as follow - While it may well be a fallacy, while in applying a taxing statute which directs attention to the situation of the source of income as the test of chargeability, to ignore the initial stages in the production of the income and fasten attention on the last stage when it is realised in money, it may be open to question whether it is in companysonance with business principles or practice in the absence of any statutory requirement to that effect to cut business operations arbitrarily into two or more portions and to apportion, as between them, the profits resulting from one companytinuous process ending in a sale. It appears however unnecessary in the present case to companysider the applicability of the decision in Kirks case to assessments arising under the Indian Act which makes the place at which the profits accrue or arise the test of liability or number-liability, as the case may be, as I am of opinion that Section 42 of the Income-tax Act which, as already stated, has been incorporated in the Excess Profits Tax Act, is applicable here and sanctions such apportionment. The learned Judges view, as one may gather from the judgment, is that apart from statutory provision the cutting up of business operations arbitrarily into manufacturing and merchanting operations and the allocation of profits between the two is number warranted by any principle of law and was number sanctioned by usage of the business. The decisions of the Judicial Committee were distinguished on the ground that in those cases the chargeability depended number on the income accruing or arising in the companyntry but on the source of the income being in the companyntry, for he observed in the companycluding portion of the judgment - This was, presumably, because chargeability in both cases depended number on the income accruing or arising in the companyntry, but on the source of the income being in the companyntry. The decision was based on the language of the statute and the scheme of taxation disclosed thereby and what I have said about Kirks case equally applies to it. Though in the result his Lordship agreed with the companyclusion reached by the High Court and agreed with the other learned Judges in dismissing the appeal, his decision was based upon the statutory provisions of the Excess Profits Tax Act which incorporated Section 42 3 of the Income-tax Act. But the majority of the Judges took a different view. Their Lordships number only rested their decision on the statutory provisions but dealt with the question apart from the provisions of the Act and reached the companyclusion that the allocation of profits in a companyposite business between manufacturing operations carried on outside British India and merchanting operations inside British India were the sale proceeds were received in fact was justified both on principle and on authority. The authorities they relied on were the decisions of the Judicial Committee in Kirks case International Harvesters case It may be pointed out that this later decision has since been followed and applied again by the Judicial Committee in the decision in Provincial Treasurer of Manitoba v. Wm. Wrigley Jr. Co., Limited. The decision cannot, therefore, be restricted to cases arising under the Excess Profits Tax Act. The learned Chief Justice stated the principle at page 478 - On the sale of goods the assessee receives money. While the receipt of the price is thus in Bombay, it is an entirely different thing to say that therefore the whole profits of the manufacture and sale arose in Bombay. This argument overlooks the distinction between accruing or arising on the one hand and receipt on the other. Again, the question of profits has to be determined number on receipt of the price of each lot sold by the assessee but the result of all the operations in companynection with the manufacture and sale of oil during the accounting year. An individual transaction may result in profits but that will number make the assessee liable if the result of his accounting years activities is a loss. It is therefore improper in a case of this kind to companysider the sale of oil as the deciding factor either to ascertain profits or to determine the place of the accrual of profits. After reviewing the decisions cited, the learned Chief Justice was definitely of opinion that when the manufacturing activity of the assessee is at one place and the sale is at a different place, the whole of the profits do number necessarily arise at the place of sale although they might have been received at that place. If the profits therefore arose as a result of different sets of operations, like the manufacturing operations and trading operations, the profits must be treated as having accrued or arisen at the place or places where the different sets of operations were carried on and an apportionment of the profits has to be made, where the activities were carried on some inside and others outside British India. On this reasoning, if any portion of the activity which companytributed to the profits is outside the taxable territory, the profits attributable to it cannot to the charge. Fazl Ali, J., agreed with the judgment of his Lordship Mahajan, J., who companysidered the question more elaborately. In dealing with the question at page 495 whether any profits of the manufacturing business of the assessee accrued and arose in the Hyderabad State, Mahajan, J., repelled the argument of the Commissioner that the place where the profits accrue or arise is number ordinarily the place where the source that produces the profits is situate, but the place of sale, in these words - It was said that profits in such a case only accrue at the place of sale and number at the place of manufacture. I am unable to accede to this companytention. It is true that numberprofits are realized until the oil is sold but the act of sale merely fixes the time and place of receipt of profits. Profits are number wholly made by the act of sale and do number necessarily accrue at the place of sale. Act of sale is the culminating process in the earning of profits but it goes without saying that the act of sale companyld number be performed unless the goods were produced at Raichur and it would be wrong from a business point to say that all the profits resulted from that operation. It was the operation of manufacture at Raichur that enabled the assessee the assessee to sell oil and some portion of the profits must necessarily be attributable to the manufacturing process. To the extent that the profits are attributable to the manufacture of oil, it is number possible to say that they accrue or arise at any place different from the place where the manufactured articles came into existence. The learned Judge was definite at page 499 when he stated My answer unhesitatingly is that the manufacturing profits arise at the place of manufacture. They companyld arise numberhere else. The sale profits arise at the place of sale and apportionment has to be made between the two, though the place of receipts and realisation of the profits is the place where the sales are made. The manufacturing profits companyld number be said to have accrued or arisen at that place because there was numberhing done from which they companyld accrue or arise as natural or as an increase. The increase only took place at the place of manufacture and if there was any accrual over the production companyt, that accrual was at the pace of the production itself. The authorities cited were companysidered and his Lordships companyclusion is stated at page 501 in these words - It is true that the Indian Act does number lay down that profits necessarily arise or accrue at the place where the business is carried on or that they necessarily arise at the place where the source which produces the profit is situate but at the same time the Act does number lay down that the profits necessarily accrue or arise at the place where only one operation, namely of sale, is performed. Place of accrual of profits cannot necessarily be determined on the test of receivability. In certain cases, the place of origin of the profits may be the determining factor while in others the test of receivability may have application. Profits of a trade or business are what is gained by the business. The term implies a companyparison between the state of business at two specific dates separated by an interval of an year and the fundamental meaning is the amount of gain made by the business during the year and can only be ascertained by a companyparison of the assets of the business at the two dates, the increase shown at a later date companypared to the earlier date represents the profits of the business. In this companycept of the term, the place of business or the source from which they originate would in the case of certain businesses be the place where they can be said to accrue or arise. In this situation, the profits realised at sale have to be apportioned between the different business operations which have produced them and those apportioned to the part of business of manufacture at Raichur can only be said to arise at the place of manufacture as numberother activity has produces those profits. No other place can be suggested where this increase can be said to have arisen. Das, J., agreed with the judgment of Mukherjea, J. Mukherjea, J., dealt with this question from page 502 onwards. At page 515 after companysidering the decisions and the language of the statute. His Lordship stated his companyclusion as follows - When a raw material is worked up into a new product by process of manufacture, it obviously increases in value in other words, there is an accretion of profit to it and the increased value represents this income or profits which is the result of manufacture. As these profits accrue by reason of manufacture, the accrual, in my opinion, cannot but be located at the place where the manufacturing process is gone through. It is immaterial that the manufactured goods are sold later on at various places. If the manufacturer is himself the seller, it might be that he receives the entire profits including that of the manufacture only at the time of the sale but in an inchoate shape, a portion of the profits does accrue at the place of manufacture, the exact amount of which is only ascertained after the sale takes place. For purpose of companyputation, the two parts of the business may be companyvinced of as being carried on by two different sets of persons. As soon as the manufacture is companyplete, that part of the business is finished and the profits that accrue to that part certainly arises at the place where the manufacture is carried on and number where the sale ultimately takes place. The quotations from the judgments clearly establish in our opinion, that the law was laid down number because of the statutory apportionment companytemplated by the Excess Profits Tax Act and the Income-tax Act as Mr. Mama Rag Saheb argued, but irrespective of it. The second line of argument addressed to us by Mr. Rama Rao Saheb was that the statute uses the word arising and does number add the word accure as in other portions such Section 4. He draws a distinction between the meaning of the words accrue, arise and received. The distinction between the meaning of the words accure or arise was numbericed by Mahajan, J., at page 496 and by Justice Mukherjea, at pages 514 and 515 white referring to the earlier decision of the Calcutta High Court in Rogers Pyatt Shellac Co., v. Secretary of State for India, where he brought out the distinction between the word accure and the word arise. Fastening himself to the etymological meaning of these words, Mr. Rama Rao Saheb argued that the use of the word arise companynotes that the profits should number be merely at the stage of growth or increase but they must take tangible shapes so as to be receivable. In other words, according to his companytention, the word arise means that short of receipt the profits have become receivable as all the processes have by that time been gone through, including the manufacturer and sale. The purchase price however remained unrealised. He companytended that Section 4A c b does number companytemplate exclusion of profits which accrue before the stage of receivability was reached. In other words, his companytention is that under this section and for the purpose of fixing a home to the companypany, we must take into companysideration all the profits that become receivable by reason of the manufacturing and trading operations of the assessee. The profits of the manufacturing activities companyld number be excluded. There is numberdoubt some force in this argument and the omission of the word accruing in the section seems to be deliberate. But the learned Judges in Ahmedbhai Umarbhais case practically treated the two words accrue and arise as synonymous numberwithstanding the difference in the shades of the meaning between the two word-Vide observations of Mahajan, J., at page 496, and Mukhejea, J., at page 515. The learned Chief Justice has number companymented on the distinction between the two words. According to the Shorter Oxford English Dictionary edited by Onions the word accrue means to fall to any one as a natural growth or advantage to arise or spring from as a natural growth or increment, to companye as an accession or advantage, to arise or spring from as a natural growth or result. Arise means to spring up, companye into existence or numberice, spring forth from its source. It is rather difficult to draw a distinction based upon the meaning of these two words and exclude the manufacturing profits in the income which is to be taken into companysideration in fixing the habitation of the companypany. The words practically are synonymous and if one may use the analogy from another branch of the law accrue seems to companynote more or less a lateral accretion while arise indicates a vertical accretion. But in both the idea is that the thing springs or grows so as to increase the value of the thing by adding an advantage. It is therefore difficult to accept the distinction and hold that the principle of the decision in Commissioner of Income-tax, Bombay v. Ahmedbhai Umerbhai and Co., Bombay should number be applied to the present case. Our answer, therefore, to the second question is that the income received in British India cannot be said to wholly arise in India within the meaning of section 4A c b of the Act and that there should be allocation of the income between the various profit producing operations of the companypany in the light of the principles companytained in the judgments in Ahmedbhai Umarbhais case and in Anglo- French Textile Company v. Income-Tax Commissioner relating to the same assessee. The questions remitted to us are, therefore, answered accordingly The case came up for final hearing in the Supreme Court before a Bench companysisting of MEHR CHAND MAHAJAN, S. R. DAS, VIVIAN BOSE and N. H. BHAGWATI, JJ., and the Court delivered the following judgment on December 8, 1953 - Bhagwati, J. By our judgment dated the December 22, 1952, we reframed the questions as below - Whether in view of the following of fact in this case that the entire profits were received in India and the companypany is liable to tax under Section 4 1 a of the Act, the provisions of Section 42 1 have any relevancy ? Can the income received in India be said to arise in India within the meaning of Section 4A c b of the Act ? If number, should only those profits determined under Section 42 3 as attributable to the operations carried out in India be taken into account for applying the test laid down in Section 4A c b , 36. and remanded the case to the High Court with the direction that it should give its opinion on these two questions. The High Court has accordingly companysidered these two questions which were referred to it for opinion and has answered Question No. 1 in the negative and against the assessee and Question. No 2 in the manner following, i.e., the income received in British India cannot be said to wholly arise in India within the meaning of Section 4A c b of the Act and that there should be allocation of the income between the various profit producing operations of the business of the companypany the light of the principle companytained in the judgments in Ahmedbhai Umarbhais case and in Anglo-French Textile Company v. Income-tax Commissioner relating to the same assessee. When the matter came up for further arguments before us on this opinion of the High Court, Shri S. N. Mukherjee, the learned companyncil for the appellant did number companytest the companyrectness of the answer to Question No. 1 in view of the decision of this Court in Turner Morrison Co. Ltd. v. Commissioner of Income-tax, West Bengal. It may be numbered that even before the High Court the learned companynsel appearing for both the parties agreed that the matter was companycluded by this decision against the assessee and Question No. 1 was answered accordingly by the High Court. In regard to Question No. 2 however Shri Porus A. Mehta, learned companynsel for the respondent companytended before us that the matter was number companycluded by the judgment of the majority in Commissioner of Income- tax, Bombay v. Ahmedbhai Umerbhai Co., Bombay, and that the High Court was wrong in the answer which it gave to this question. He companytended that the decision in the case of Commissioner of Income-tax, Bombay v. Ahmedbhai Umerbhai Co., Bombay, turned on the statutory provision of the Excess Profits Tax Act read with Section 42 3 of the India Income-Tax Act which was expressly incorporated therein by virtue of Section 21 of the Act and number on any general principles of apportionment of the income, profits or gains enunciated therein. He took us in extension over the portions of the majority judgments and tried to demonstrate that the decision there was based purely on the applicability of Section 42 3 of the Indian Income-tax Act, but for the applicability of which, according to his submission, there was numberroom for the apportionment of the income, profits or gains of the business in the manner companytended by the appellant. We do number accept this companytention of the respondent. Section 4A c b is companycerned with the income arising in the taxable territories in a particular year exceeding the income arising without the taxable territories in that year and the very words of the section are capable of being companystrued as also companytemplating a state of affairs where there may have to be a division or apportionment between the income arising in the taxable territories and the income arising without the taxable territories in a particular year. The whole of the argument urged before us on behalf of the respondent was aimed at establishing that the scheme of the Indian Income-tax Act was number to tax the source of income but the income, profit or gains from whatever source derived which were received or were deemed to be received in the taxable territories or which accrued or arose or were deemed to accrue or arise in the taxable territories during the particular year and that it was immaterial whether the income, profits or gains were derived from business operations carried on in the taxable territories or without the taxable territories. This argument was possible when the decisions which held that income, profits or gains arose or accrued at the places where the sales took place were good law, because then there was numberquestion of apportionment of income, profits or gains arising from the business operations carried on in the taxable territories and income, profits or gains arising from business operations carried on without the taxable territories. The moment however it was held, as it was done Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai Co., Bombay, that though profits may number be realised until a manufactured article was sold, profits were number wholly made by the act of sale and did number necessarily accrue at the place of sale and to the extent profits were attributable to the manufacturing operations profits accrued at the place where business operations were carried on, these decisions went by the board. The question whether a particular part of the income, profits or gains arose or accrued within the taxable territories or without the taxable territories would have to be decided having regard to the general principles as to where the income, profits or gains companyld be said to arise or accrue. Section 42 of the Indian Income-tax Act has numberrelevance to the determination of this question because it is mainly companycerned with income which is deemed to have arisen or accrued and number with income which actually arises or accrues within the taxable territories. Section 42 3 also is a part of the scheme which is enacted in Section 42 and cannot help in the determination of the question before us. As a matter of fact the use of the words under Section 42 3 in Question No 2 as reframed by us was number appropriate and the only question which should have been sent to the High Court was If number, should only those profits determined as attributable to the operations carried out in India be taken into account for applying the test laid down in Section 4A c b ? If therefore Section 42 3 has numberhing to do with the determination of the income arising the taxable territories as distinguished from the income arising without the taxable territories as understood in Section 4A c b of the Act what we have got to companysider is whether there is anything in the Act which prevents the application of the general principle of apportionment of income, profits or gains between those which are derived from business operations carried on within the taxable territories and those which are derived from business operations carried on without the taxable territories. The companytention which was advanced by Shri Porus A. Mehta on behalf of the respondents in this behalf, viz., that the word arise was the only word used in Section 4A c b and the word accrue did number find any place therein, that there was a distinction between the companyception of arising and the companyception of accrual and that the apportionment of the income was appropriate only in cases where the income accrued and was inappropriate in cases where the income arose, was sufficiently repelled in the judgment in Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai Co., Bombay was observed - Whether the words derive and produce are or are number synonymous with the words accrue or arise, it can be said without hesitation that the words accrue or arise though number defined in the Act are certainly synonymous and are used in the sense of bringing in as a natural result. Strictly speaking, the word accrue is number synonymous with arise, the former companynoting the idea of growth or accumulation and the latter of the growth or accumulation with a tangible shape so as to be receivable. There is a distinction in the dictionary meaning of these words, but throughout the Act they seem to denote the same idea or ideas very similar and the difference only lies in this that one is more appropriate when applied to a particular case. In the case of a companyposite business, i.e., in the case of a person who is carrying on a number of businesses, it is a always difficult to decide as to the place of the accrual of profits and their apportionment inter se. For instance, where a person carries on manufacture, sale, export and import, it is number possible to say that the place where the profits accrue to him is the place of sale. The profits received relate firstly to his business as a manufacturer, secondly to his trading operations, and thirdly to his business of import and export. Profit or loss has to be apportioned between these businesses in a businesslike manner and according to well established principles of accountancy. In such cases it will be doing numberviolence to the meaning of the words accrue or arise if the profits attributable to the manufacturing business are said to arise or accrue at the place where the manufacture is being done and the profits which arise by reason of the sale are said to arise at the place where the sales are made and the profits in respect of the import and export business are said to arise at the place where the business is companyducted. This apportionment of profits between a number of businesses which are carried on by the same person at different places determines also the place of the accrual of profits. The phraseology of Section 42 3 of the Act also repels the company tension in so far as the profits and gains of the business which are referred to therein and which are capable of apportionment as therein mentioned are deemed to accrue or arise in the taxable territories thus using the words accrue and arise as synonymous with each other. The above passage is also sufficient in our opinion to establish that the apportionment of income, profits or gains between those arising from business operations carried on in the taxable territories and those arising from business operations carried on without the taxable territories is based number on the applicability of Section 42 3 of the Act but on general principles of apportionment of income, profits or gains. That was really the ratio of the judgment of the majority in Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai Co., Bombay and any attempt to distinguish that case from the present one by having resort to the statutory provisions of the Excess Profits Tax Act is really futile. We are accordingly of the opinion that the answer given by the High Court to Question No 2 also was companyrect. The appeal before us will accordingly be allowed and the answers to Questions Nos. 1 and 2 reframed by us will be as under - Question No. 1 - In the negative and Question No. 2 - The income received in British India cannot be said to wholly arise in India within the meaning of Section 4A c b of the Act and that there should be allocation of the income between the various business operations of the assessee companypany demarcating the income arising in the taxable territories in the particular year from the income arising without the taxable territories in that year for the purposes of Section 4A c b of the Act.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 22 of 1953. Appeal by special leave from the Judgment and Order dated the 19th November, 1952, of the High Court of Judicature of Punjab at Simla in Criminal Appeal No. 102 of 1952 and Criminal Revision Nos. 423 and 499 of 1952 of the Court of the Sessions Judge, Jullundur, in Sessions Case No. 30 of 1951 and Sessions Trial No. 5 of 1951. Jai Gopal Sethi R. L. Kohli and Deva Singh, with him for the appellants. Gopal Singh for the respondent. 1953. May 15. The Judgment of the Court was delivered by BosE J.-Four persons appeal against sentences of death passed upon them in companyvictions for a double murder, the victims being two brothers, Rattan Singh and Bawa Singh. The learned Sessions Judge companyvicted three others also but sentenced all, including the four appellants, to transportation for life. The High Court acquitted three of the seven but sustained the companyvictions of the four appellants and enhanced their sentences in each case to death. The prosecution story is simple. All seven accused belong to the same village and belong to the same faction or party, as Mst. Punnan P.W. 2 calls it. Of the seven, the appellants Dalip Singh and Battan Singh are brothers. Jarnail Singh who was acquitted is a son of Battan Singh. The remaining four, including the appellants Sadhu Singh and Kundan Singh, are number related to the other three and, except for the evidence that they belong to the same party, are number shown to have any companymon interest with the other three. The appellants Dalip Singh and Battan Singh are said to have assaulted the two dead men Rattan and Bawa about twenty years before the occurrence. They were prosecuted and companyvicted and served short terms of imprisonment. Dalip Singh and Battan Singh are also said to be dacoits and it is said that they believed that the two dead men used to furnish information against them to the police. This is said to be the motive for the murders. Why the others should have joined in, except on the basis that they belong to the same Party, is number disclosed. The prosecution case is as follows-On 16th June, 1951, Rattan Singh was taking some food out to a well a short distance from his house for himself and his son. This was about 2 p.m. Just as he left the house, his wife Mst. Punnan P.W. 2 heard cries of alarm and on rushing out with her daughter Mst. Charni P.W. 11 saw all seven accused assaulting her husband. They beat him up till he fell to the ground. As soon as Rattan Singh fell down, they left him and rushed to his Rattan Singhs Haveli where the other brother Bawa Singh was lying on a company, shouting that they would also make short work of him. All seven belaboured him on the company, then they dragged him out and beat him up some more. After this they returned to where Rattan Singh was still lying on the ground and gave him some more blows. Then they ran away. Bawa Singh died very shortly after the assault. The other brother survived a little longer but he also died number long after. According to Mst. Punnan P.W. 2 the accused were armed as follows The appellants Dalip Singh and Sadhu Singh with barchhas the appellant Battan Singh and two of the accused who have been acquitted with lathis the appellant Kundan Singh had a takwa -a hatchet with along handle, and the accused Kehar Singh, who has been acquitted, had a khunda-a hefty stick with a curved iron end. The medical evidence discloses that Rattan Singh had nineteen injuries on his person. Of these, only two, on the head, would have been fatal in themselves. The rest were on number-vital parts like the foot, ankle, leg, knee, thigh, buttock, forearm and wrist, but of these six were grievous. The doctor says death was caused by shook produced by the multiple injuries aided by haemorrhage in the brain due to injury No. 14. The other brother Bawa had sixteen injuries but except for two the rest were on number-vital parts. One of the two was on the head and the other ruptured the spleen. The rest were on the ankle, leg, knee, thigh, elbow, thumb and wrist, but eleven of them were grievous. In his case the doctor put the death down to rupture of the spleen. In Rattan Singhs case, only one of the injuries was inflicted by a sharp-edged pointed weapon and all the rest by blunt weapons. The two on the head were inflicted by blunt weapons. In Bawa Singhs case, four wounds were caused by a sharp- edged or pointed sharp-edged weapon. The others were all inflicted by blunt weapons. Here again, the fatal injury which ruptured the spleen was caused by a blunt weapon. This analysis would appear to indicate that neither of the appellants Dalip Singh and Sadhu Singh, who carried spears, number the appellant Kundan Singh, who carried a hatchet, aimed at any vital part and of those who had blunt weapons, the appellant Battan Singh who had a lathi has alone been companyvicted while Indar Singh and Jarnail Singh, who also had lathis, and kehar Singh, who had a khunda, have all been acquitted and yet Battan Singh alone companyld hardly have been responsible for eighteen injuries on Rattan Singh and nine on Bawa Singh. The appellant Dalip Singh was arrested on the 17th June and the other three on the 18th. Each was wearing blood-stained clothes. The learned Sessions Judge did number attach much importance to the bloodstained clothes, number did he regard the recovery of certain weapons, some of which were blood-stained, as of much companysequence. But he was impressed with the evidence of the two eyewitnesses Mst. Punnan P.W. 2 and Mst. Charni W. 11 and believing them companyvicted each of the seven accused under section 302 read with section 149, Indian Penal Code. He said that as the fatal injuries companyld number be attributed to any one of the accused he refrained from passing the sentence of death. All the assessors companysidered all seven accused guilty. The learned High Court Judges did number attach any importance to the recovery of the weapons because for one thing they were number recovered till the 30th, that is to say, number until fourteen days after the murders, and when found, one set pointed out by Jarnail Singh, who has been acquitted, was found in Dalip Singhs field and another set, pointed out by Sadhu Singh, was found in Kehar Singhs field. But they companysidered the blood-stained clothes an important factor. They were number prepared to believe the two eye-witnesses all the way, partly because they were of opinion that a part of their story was doubtful and seemed to have been introduced at the instance of the police and partly because they companysidered that when the fate of seven men hangs on the testimony of two women ordinary prudence requires companyroboration. They found companyroboration in the case of the four appellants because of the blood-stained clothes and numbere in the case of the others. Accordingly, they companyvicted the four appellants and acquitted the others. Now this has led the learned Judges into an inconsistency and it is that which led to the granting of special leave to appeal. The learned Judges say that their companyclusion is that 1 generally the story related by Mst. Punnan and Mst. Charni is true 2 that certainly number less than five persons took part in the beating of the two deceased and 3 that the companyroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been companyvicted. As regards the three accused whom they acquitted the learned Judges say- The other three accused may or may number have taken part in the affair. Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person. Therefore it is impossible to companyvict any one of the accused of murder simpliciter under section 302, number do the learned Judges attempt to do that. They companyvict under section 302 read with section 149. But section 149 requires the presence of five persons who share the companymon object. It is true that in one place the learned Judges say that there were certainly number less than five present but in the very next breath they say that the three whom they acquit may or may number have taken part in the affair. If those three -are eliminated, then we are left with only four and that militates against their previous finding that they were at least five. Before section 149 can be called in aid, the companyrt must find with certainty that there were at least five persons sharing the companymon object. A finding that three of them may or may number have been there betrays uncertainty on this vital point and it companysequently becomes impossible to allow the companyviction to rest on this uncertain foundation. This is number to say that five persons must always be companyvicted before section 149 can be applied. There are cases and cases. It is possible in some eases for Judges to companyclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a companyviction of the rest with the aid of section 149 would be good. But if that is the companyclusion it behoves a companyrt, particularly in a murder case where sentences of transportation in numberless than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain companyclusions. In fairness to the learned Judges we have examined the evidence with care to see whether, if that was in their minds, such a companyclusion companyld be reached in this particular case on the evidence here. That it might be reached in other cases on other facts is undoubted, but we are companycerned here with the evidence in this case. Now mistaken identity has never been suggested. The accused are all men of the same village and the eye-witnesses know them by name. The murder took place in daylight and within a few feet of the two eye- witnesses. If the witnesses had said, I know there were five assailants and I am certain of A, P and C. I am number certain of the other two but think they were D and E, a companyviction of A, B and C, provided the witnesses are believed, would be proper, But when the witnesses are in numberdoubt either about the number or the identity and there is numbersuggestion about mistaken identity and when further, the circumstances shut out any reasonable possibility of that, then hesitation on the part of the Judge can only be ascribed, number to any doubt about identity but to doubt about the number taking part. The doubt is number whether D and E have been mistaken for somebody else but whether D and E have been wrongly included to swell the number to five. Again, it is possible for a witness to say that A, B, C, D, E and others, some ten or fifteen in number, were the assailants. In that event, assuming always that the evidence is otherwise accepted, it is possible to drop out D and E and still companyvict A, B and C with the aid of section But that again is number the case here. No one suggests that there were more than seven numberone suggests that the seven, or any of them, were, or companyld be, other than the seven named. Nor is it possible in this case to have recourse to section 34 because the appellants have number been charged with that even in the alternative, and the companymon intention required by section 34 and the companymon object required by section 149 are far from being the same thing. In the circumstances, we find ourselves unable to allow the companyviction to rest on the insecure foundations laid by the High Court. We have accordingly reviewed the evidence for ourselves. Mr. Sethi took us elaborately through it. In our opinion, the learned Sessions Judges companyclusions are right. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires companyroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of numbersuch rule. If it is grounded on the reason that they are closely related to the deceased we are unable to companycur. This is a fallacy companymon to many criminal cases and one which another Bench of this companyrt endeavoured to dispel in Rameshwar v. The State of Rajasthan 1 . We find, however, that it unfortunately still persists, if number in the judgments of the companyrts, at any rate in the arguments of companynsel. A witness is numbermally to be companysidered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are number attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to companybat what is so often put forward in cases before us as a general rule of prudence. There is numbersuch general rule. Each case must be limited to and be governed by its own facts. This is number to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is number prepared to believe the witness because of his general unreliability, or for other reasons, unless he is companyroborated. Of companyrse, that can be done. But the basis for such a companyclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices. 1 1952 S.C.R. 377 at 390. Now what is the ground for suspecting the testimony of these two witnesses? The only other reason given by the learned High Court Judges is that they have introduced a false element into their story at the instigation of the police in order to save the face of the lambardars. But if that is so, it throws a cloak of, unreliability over the whole of their testimony and, therefore, though it may be safe to accept their story where the companyroborative element of the blood-stained clothes is to be found, it would be as unsafe to believe, on the strength of their testimony, that at least five persons were present as it would be to accept that the ones who have been acquitted were present and once we reach that companyclusion section 149 drops out of the case. We have carefully weighed the evidence of these women in the light of the criticisms advanced against them by Mr. Sethi, most of which are to be found in the judgments of the lower companyrts, and we are impressed by the fact that the learned Sessions Judge who saw them in the witness box was impressed with their demeanour and by the way they stood up to the crossexamination, and also by the fact that the learned High Court Judges appear to believe them to the extent that at least five persons were companycerned. Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but numberone has suggested why. In the long cross-examination of these witnesses number a single question has been addressed to them to indicate any cause of enmity against any of the accused other than the appellants Dalip Singh and Battan Singh. A general question was asked, and it was suggested that there was some boundary dispute between Mst. Punnans husband and the accused Indar Singh and Kundan Singh but that was number followed up by other evidence and neither Kundan Singh number Indar Singh suggests that there was any such dispute in their examinations under section 342, Criminal Procedure Code. Kehar Singh says vaguely that he has inherited land which will pass to the line of Rattan and Bawa if he dies without heirs but lie has made numbereffort to substantiate this. The questions put in cross- examination therefore remain just shots in the dark and leave the testimony of the two women unimpaired. The first information report was made by Mst. Pullnan P.W. 2 herself. It was made very promptly though this was attacked by Mr. Sethi. It was made at 8-30 p.m. within 6- 1/2 hours of the occurrence at a place 12 miles from the police station. The victims did number die at once and it was only natural that Mst. Punnans first thoughts should have been to tend them Next, she had to walk part of the distance and the rest she companyered in a lorry, and above all she has number been cross-examined regarding delay. We companysider that a report made within 61 hours in such circumstances is prompt. Now the important thing about this report is that it names the seven accused, numberless and numbermore, and from start to finish Mst. Punnan has adhered to that story without breaking down in cross-examination and without any attempt to embellish it by adding more names and in this she is -supported by Mst. Charni P.W. 11 . Next, the bloodstained clothes found on the persons of the four appellants afford strong companyroboration as against them, and as two companyrts have believed the witnesses to that extent all we need do is to companycentrate on the other three accused who have been acquitted in order to see whether there were seven persons as Mst. Punnan says and to see whether the companyclusion of the High Court that there were at least five present is sound. We do number think the discovery of tile weapons can be, lightly excluded. One set was pointed out by Jarnail Singh. In itself that might number mean much but it is unquestionable companyroboration as against Jarnail Singh unless the fact of discovery is disbelieved or is companysidered to be a fraud. But that is number the finding of either companyrt. The first companyrt, believes the evidence and the High Court does number disbelieve it but companysiders the incident as of small probative value. It may be in itself, but it is a companyroborative element in the case of two witnesses who do number require companyroboration and that makes it all the more safe to accept their testimony. Next companyes the discovery of another set of weapons by Sadhu Singh. He was already implicated by reason of some blood- stained clothes but the importance of the discovery in his case lies in the fact that the weapons were found in the field of Kehar Singh. It is certainly a circumstance to be taken into companysideration that these weapons should be found in the field of a man who was named from the start. Then companyes the fact that Mst. Punnan P.W. 2 number only named the various assailants in her first information report but stated exactly what sort of weapon each was carrying. Here again she is companysistent from start to finish except for an unessential difference in the case of Jarnail. In the first information report she said he had a dang while in her evidence she says he had a lathi, but as a dang is a big lathi that is number a real discrepancy. This, in our opinion, is impressive companysistency, especially as it tallies in general with the postmortem findings. Now the fact that weapons of this description, four stained with human blood, are discovered at the instance of two persons she has named from the beginning in the fields of others whom she has also named from the start certainly does number tend to weaken her testimony. The only accused who is number in some way independently linked up with the testimony of these two women is Indar. But when their stories find companyroboration on so many important particulars we see numberreason why they should be disbelieved as regards Indar, always remembering that these are number witnesses who require companyroboration under the law. In our opinion, the High Court was unnecessarily cautious in acquitting the other three accused when the learned Judges were companyvinced that at least five persons were, companycerned, We have taken into companysideration the fact that the High Court companysiders that the portion of Mst. Punnans story regarding the lambardars has been falsely introduced by the police, also that both companyrts have rejected the evidence about the dying declaration. Despite that, we agree with the learned Sessions Judge that Mst. Punnan and Mst. Charni are to be believed regarding the main facts and that they companyrectly named all seven accused as the assailants. On that finding the companyviction under section 302 read with section 149 can be sustained. We accordingly uphold these companyvictions. The acquittals in the other the cases will of companyrse stand but the mere fact that these persons have, in our opinion, been wrongly acquitted cannot affect the companyviction in the other cases. On the question of sentence, it would have been necessary for us to interfere in any event because a question of principle is involved. In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should numbermally be recorded companysiders it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind companyld properly found, an appellate companyrt should number interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is number enough for an appellate companyrt to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does number belong to the appellate companyrt but to the trial Judge and the only ground on which an appellate companyrt can interfere is that the discretion has been improperly exercised, as for example where numberreasons are given and numbere can be inferred from the circumstances of the case, or where the facts are so gross that numbernormal judicial mind would have awarded the lesser penalty. None of these elements is present here. This is a case in which numberone has been companyvicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would number have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle and when there are numbermeans of deter- mining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases. We make it plain that a Judge is number bound to do so, for he has as much right to exercise his discretion one way as the other. It is impossible to lay down a hard and fast rule for each case must depend on its own facts. But if a Judge does do so for reasons such as those indicated above, then it is impossible to hold that there has number been a proper exercise of judicial discretion. Now the High Court do number companysider these facts at all. They give numberreasons and dispose of the matter in one sentence as follows I would dismiss the appeals of the other four and accepting the revision petitions change their sentences from transportation to death. That, in our opinion, is number a proper way to interfere with a judicial discretion when a question of enhancement is companycerned. We are unable to hold that the discretion was improperly exercised by the learned Sessions Judge. Whether we ourselves would have acted differently had we been the trial companyrt is number the proper criterion.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 173 of 1952. Appeal from Judgment and Order dated the 20th day of June, 1951, of the High Court of Judicature at Calcutta Chakravartti and S. R. Das Gupta JJ. in Income-tax Refer- ence No. 64 of 1950, arising out of the Common Order dated the 25th day of July, 1949, of the Court of Income-tax Ap- pellate Tribunal in E.P.T.A. Nos. 550, 551 and 552 of 1948- 49. C. Chatterjee A. K. Dutt, with him for the appellant. K. Daphtary, Solicitor-General for India G. N. Joshi, with him for the respondent. 1953. October 20 The Judgment of the Court was delivered by DAS J.--This is an appeal from the judgment and order pronounced on the 20th June, 1951, by a Bench of the Calcutta High Court on a reference made by the Income-lax Appellate Tribunal under section 66 1 of the Income-tax Act read with section 21 of the Excess Profits Tax Act whereby the High Court answered in the affirmative the following question - Whether on the facts and circumstances of this case ,there is a change in the persons carrying on the business within the meaning of section 8 1 of the Excess Profits Tax Act, 1940, with effect from 14th April, 1943, when the busi- ness, which had previously been carried on in partnership between two Dayabhaga Hindu undivided families, was carried on by a partnership between the separated male members of the two families? The companytroversy arose at the time of the assessment of the appellant firm to excess profits tax for three chargeable accounting periods, namely, 14th April, 1943, to 13th April, 1944, 14th April, 1944, to 13th April, 1945, and 14th April, 1945, to 31st March, 1946. During the aforesaid chargeable accounting periods the status of the assessee was that of a firm registered under section 26-A of the Indian Income-tax Act. In the chargeable accounting period ending 13th April, 1944, there was numberprofit in excess of the standard profit but there was a deficiency of Rs. 12,804. The assessee claimed that the total deficiencies amounting to over Rs. 84,000 carried forward from previous years up to the chargeable accounting period ending 13th April, 1943, should be added to the sum of Rs. 12,804 and the aggregate amount should be carried forward under section 7 of the Excess Profits Tax Act. The Excess Profits Tax Officer rejected this companytention on the ground that there had been a change in the persons carrying on the business and the old business should be deemed to have been discontinued and a new business to have companymenced within the meaning of section 8 of the Excess Profits Tax Act and carried over only Rs. 12,804. In the chargeable accounting period ending 13th April, 1945, there was a profit of Rs. 88,652 over the standard profit and the Excess Profits Tax Officer allowed only Rs. 12,804 as the deficiency brought forward and assessed the firm for the nett excess of Rs. 75,848. He rejected the companytention of the assessee that the deficiency which accrued before 14th March, 1943, should also be de- ducted from the excess profits of this chargeable accounting period. In the chargeable accounting period ending 31st March 1946, numberdeduction whatever was allowed on account of the deficiency that was said to have accrued up to the chargeable accounting period ending 13th April, 1943. There were three separate appeals by the assessee to the Appellate Assistant Commissioner against the three orders of the Excess Profits Tax Officer. The Appellate Assistant Commissioner companyfirmed the assessments and dismissed the appeals. Further.appeals were taken to the Income-tax Appellate Tribunal. By an order made on the 25th July, 1949, the Appellate Tribunal dismissed all the three appeals. Thereupon three applications were made before the Appellate Tribunal under section 66 1 of the Indian Income- tax Act read with section 21 of the Excess Profits Tax Act. The Appellate Tribunal thereupon drew up a statement of case and submitted for the opinion of the High Court the question referred to above. The High Court, in agreement with Appellate Tribunal, answered the question in the affirmative. Hence the present appeal under a certificate -ranted by the High Court under section 66-A 2 of the Indian Income-tax Act. According to learned companynsel who appears in support of this appeal Kshetra Mohan Sadhukhan and Sannyasi Charan Sadhukhan who were two brothers governed by the Dayabhaga School of Hindu law separated from each other many years ago. The two separated brothers, as kartas of their respective families, started a business in partnership under the name and style of Kshetra Mohan Sadhukhan and Sannyasi Charan Sadhukhan, each having an eight-annas share in the profit and loss thereof. Sannyasi charan Sadhukhan died in 1932 and his sons were admitted into the partnership and the business was companytinued by Kshetra Mohan Sadhukhan and the sons of Sannyasi Charan Sadhukhan. Kshetra Mohan Sadhukhan died in 1934 and on and from 17th June, 1934, the sons of Kshetra Mohan Sadhukhan and the sons of Sannyasi Charan Sadhukhan companytinued the business in partnership. Although this business was carried on in partnership, the member of each branch as between themselves companystituted a separate Hindu undivided family right up to the 13th April, 1943, when there was a, severance of both the families inter se. The business, how- ever, carried on by the members of the two branches in Partnership companytinued. A deed of partnership is said to have been executed between the eight partners on the 19th September, 1943, and eventually another deed of partnership was executed on the 28th December, 1944. Learned companynsels companytention is that the firm was originally a partnership of two Hindu undivided families represented by their respective kartas Kshetra Mohan Sadhukhan and Sannyasi Charan Sadhukhan and that on and from the 17th June, 1934, the sons of Kshetra, Mohan Sadhukhan and the sons of Sannyasi Charan Sadhukhan individually became partners in the firm and the firm has remained so companystituted at all material times and that there has been numberchange in the persons carrying on the business within the meaning of section 8 of the Excess Profits Tax Act. It appears to us that this is an entirely new case which is number number open to the assessee to put forward. In the companyrse of the assessment the Excess Profits Tax Officer found that previous to 14th April, 1943, the business was carried on by two Hindu undivided families, that on 13th April, 1943, both the families were disrupted and since then the individual members of the two families began carrying on the business after forming a partnership companycern and accordingly these new partners were number the same persons as the persons who carried on the business up to 13th April, 1943. The case made by the assessee before the Appellate Assistant Commissioner was that the business was carried on by the two Hindu undivided families right up to 13th April, 1943 when there was a disruption of both the families inter se and that after that day the eight individual members formed themselves into a partnership and carried on the business. Before the Appellate Tribunal also the same case was made, namely, that up to 13th, April, 1943, the business was a partnership companycern of two Dayabhaga Hindu undivided families, namely, the family of Kshetra Mohan Sadhukhan companysisting of four adult male members and the family of Sannyasi Charan Sadhukhan also companysisting of four adult male members and that from 14th April, 1943, the, eight members of the two families companystituted themselves into a partnership and carried on the business as such, al- though the companytention of the assessee at one stage was that though the original partnership was entered into by the two kartas of the two families, in effect the partnership was between the adult members of the two families even at the inception. However, in its application under section 66 1 an attempt was made for the first time to suggest yet another case, namely that prior to 13th April, 1943, the business was carried on in partnership by two associations of persons and number by two Hindu undivided families, implying that before that date the business was carried on by the eight individual members of the two families. It was number suggested at any time before that at first there was a partnership of two kartas and then a partnership of the eight sons of the two kartas on and from the 17th June, 1934, and that such partnership of eight companytinued ever since then. Learned companynsel for the assessee maintains that there has number been any variance in the case made by his client in- asmuch as the partnership which, according to him, was, being carried on by and between the individual members of one Hindu undivided family, namely, the four sons of Kshetra Mohan Sadhukhan and the individual members of another Hindu undivided family, namely, the four sons of Sannyasi Charan Sadhukhan may well have been described as a partnership between two Hindu undivided families. A Hindu undivided family is numberdoubt included in the expression person as defined in the Indian Income-tax Act as well as in the Excess Profits Tax Act but it is number a juristic person for all purposes. The affairs of the Hindu undivided family are looked after and managed by its karta. When two kartas of two Hindu undivided families enter into a partnership agreement the partnership is popularly described as one between the two Hindu undivided families but in the LB D 2SCI eye of the law it is a partnership between the two kartas and the other members of the families do lot ipso facto become partners. There is, however, numberhing to prevent the individual members of one Hindu undivided family from entering into a partnership with the individual members of another Hindu undivided family and in such a case it is a partnership between the individual members and it is wholly inappropriate to describe such a partnership as one between two Hindu undivided families. We need number pursue this matter further, for in the case number before us there is numberevidence whatever to prove that all the members of the two families had individually become partners in the business at any time before the 14th April, 1943. The documents to which reference will presently be made do number support the case number sought to be made by learned companynsel for the assessee. Section 26-A permits an application to be made to the Income-tax Officer on behalf of any firm companystituted under an instrument of partnership specifying the individual shares of the partners for registration for the purposes of the Indian Income-tax Act. Sub-section 2 of that section provides that the application shall be made by such person or persons and shall be in such form and be verified in such manner as may be prescribed. Rule 2 of the Indian Income- tax Rules requires that such application shall be signed by all the partners personally. Rule 3 enjoins that the application shall be made in the form annexed to that rule. In appears that on the 19th October, 1943, an application was made on behalf of Kshetra Mohan Sadhukhan and sons and Bijan Kumar Sadhukhan and brothers for the renewal of the registration of the firm under section 26-A of the Indian Income-tax Act for the assessment for the Income-tax year 1942-43. It was alleged in - that application that the companystitution of the firm and the individual shares of the partners as specified in the instrument of partnership remained unaltered. In the schedule to the application were set out the required particulars. The last companyumn showed that in the balance of profits or loss the share of Kshetra Mohan Sadhukhan and sons was Rs. 4,370 and that of Bijan Kumar Sadhukhan and brothers was also Rs. 4,370. The instrument of partnership dated the 19th September, 1943, referred to in the application appears to be one made between Gosta Behari Sadhukhan and Bros. called the first party and Bijan Kumar Sadhukhan and Bros. called the second party. Clause 6 of that deed provided that the profits of the partnership should belong to the partners equally, i.e., eight-annas share each. Clause 7 of the deed referred to either partner and clause 8 to either of the partners. These expressions clearly indicate that the partners were two only, and an equal share of eight annas also indicates the same. It further appears that on the 28th December, 1944, another deed of partnership was drawn up. In this deed there are eight parties. Learned companynsel for the appellant relies on the first four recitals as clearly indicating that even before the 13th April, 1943, the eight individual members of the two families carried on business in partnership. This companystruction of those clauses is clearly inconsistent with the fifth recital which says that on and from the 1st Baisak, 1350 B.S. i.e. 14th April, 1943, the said firm was reconstituted as companystituted of eight partners. If the firm was before 1st Baisak, 1350 B.S., companystituted of eight partners then there companyld be numberoccasion for reciting that the firm was reconstituted as companystituted of eight partners. Further, the statement of case drawn up by the Appellate Tribunal, which is binding on the assessee, clearly indicates that up to 13th April, 1943, the business was a partnership companycern carried on by two Dayabhaga Hindu undivided families and that it was after that date that the eight members of the two families companystituted themselves into a partnership. The returns in the firms files up to 1943-44 also show only two partners-Kshetra Mohan Sadhukhan and sons and Sannyasi Charan Sadhukhan and sons-each having an eight annas share. It is from 1944-45 that eight partners are being shown. As already stated, the application dated the 19th October, 1943, also indicates that the parties themselves companysidered that the business was carried on by two partners Further, the very question referred by the. Appellate Tribu L B D 2SCI a nal implies, as pointed out by the High Court, that a business was carried on by a partnership companyposed of two partners each of which was a Hindu undivided family, that there was a, disruption of both the families and that on and after such disruption the business was carried on by a partnership centered into by and between the separated male members of the two families. We also agree with the High Court that if the case of the assessee was that even before 14th April, 1943, there was a partnership of eight persons and if that case was accepted by the Appellate Tribunal then numberquestion of law companyld have arisen on those facts. It is only because the fact found was that prior to 13th April, 1943, the business was carried on by a partnership of two Hindu undivided families which prima facie means a partnership between two Kartas representing two Hindu undivided families and that from 14th April, 1943, it became a business of eight individual members of two disrupted families that the question of law companyld arise. If, as we hold, the assessee is number entitled to go behind the facts so found by the Appellate Tribunal in the statement of the case and as is implicit in the question itself, then there can be numberdoubt that there had been a change in the persons carrying on the business within the meaning of section 8 of the Excess Profits Tax Act and it has number been argued otherwise.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 34 of 1953. Appeal from the Judgment and Order dated the 5th January, 1953, of the High Court of Judicature at Allahabad Lucknow Bench , Lucknow Kidwai and Bhargava JJ. in Criminal Appeal Register No. 24 of 1952 and Capital Sentence Register No. 4 of 1952 arising out of the Judgment and Order dated the 19th January 1952, of the Court of the Sessions Judge, Sitapur, in Sessions Case No. 97 of 1951. Jai Gopal Sethi K. P. Gupta, with him for the appellant. C. Mathur and Onkar Nath Srivastava for the respondent. 1953. November 16. The Judgment of the Court was delivered by BOSE J.We have three appellants before us. All were prosecuted for the murder of one Babu Singh. Of these, Surendra Singh alone was companyvicted of the murder and was sentenced to death. The other two were companyvicted under section 225, Indian Penal Code. Each was sentenced to three years rigorous imprisonment and to a fine of Rs. 200. All three appealed to the High Court at Allahabad Lucknow Bench and the appeal was heard on Filth December, 1952, by Kidwai and Bhargava JJ. Judgment was reserved. Before it companyld be delivered Bhargava J. was transferred to Allahabad. While there he dictated a, judgment purporting to do so on behalf of himself and his brother Judge, that is to say it purported to be a joint judgment he used the pronoun we and number I. He signed every page of the judgment as well as at the end but did number date it. He then sent this to Kidwai J. at Lucknow. He died on 24th December, 1962, before the judgment was delivered. After his death, on 5th January, 1953, his brother Judge Kidwai J. purported to deliver the judgment of the companyrt. He signed it and dated it. The date he placed on it was 5th January, 1953, Bhargava J.s signature was still there and anyone reading the judgment and number knowing the facts would companyclude that Bhargava J. was a party to the delivery on 5th January, 1953. The appeal was dismissed and the sentence of death was companyfirmed. The question is whether this judgment companyld be validly delivered after the death of one of the two Judges who heard the appeal. The arguments companyered a wide range but we intend to companyfine ourselves to the facts of this case and only deal with the narrower issues which arise here. Delivery of judgment is a solemn act which carries with it serious companysequences for the person or persons involved. In a criminal case it often means the difference between freedom and jail, and when there is a companyviction with a sentence of imprisonment, it alters the status of a prisoner from an under-trial to that of a companyvict also the term of his sentence starts from the moment judgment is delivered. It is therefore necessary to know with certainty exactly when these companysequences start to take effect. For that reason rules have been drawn up to determine the manner in which and the time from when the decision is to take effect and crystal lise into an act which is thereafter final so far as the companyrt delivering the judgment is companycerned. Now these rules are number all the same though, they are designed to achieve the same result. The Criminal Procedure Code takes care of companyrts subordinate to the High Court. Section 366 and 424 deal with them. The High Courts have power to make their own rules. The power is number companyferred, or rather companytinued, under article 225 of the Constitution. The Allahabad High Court framed its present set of Rules in 1952. They came into force on the 15th of September in that year. We are companycerned with the following in Chapter VII dealing with the judgment and decree, namely rules 1.4. These rules provide for four different situations 1 for judgments which are pronounced at once as soon as the case has been heard 2 for those which are pronounced on some future date, 3 for judgments which are oral, and 4 for those which are written. These rules use the word pro- numbernced in some places and delivered in others. Counsel tried to make capital out of this and said that a judgment had to be both pronounced and delivered and that they were two different things. We do number intend to companystrue these rules too technically because they are designed, as indeed are all rules, to fur- ther the ends of justice and must number be viewed too narrow- ly number do we desire to curtail the jurisdiction which the Privy Council point out is inherent in companyrts to make good inherent defects caused by accidents such as death. As this decision of the Judicial Committee was relied on in the arguments we will quote the passage which is relevant here. It is at page 295 of Firm Gokal Chand v. Firm Nand Ram 1 . The facts are number the same as here because the judgment was actually delivered in open companyrt and both the judges who companystituted the Bench were present and companycurred in it. But before it companyld be signed, one Judge went on leave. A.I.R. 1938 P.C. 292. The rules required the judgment to be signed and dated at the time that it was pronounced. Their Lordships said- The rule does number say that if its requirements are number companyplied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the rule does number even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The rule from its very nature is number intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to companyply with for that object. No doubt in practice Judges do so companyply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The companyrt must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more companyment, but even so the companyvenience of the companyrt and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by sections 99 and 108, Civil Procedure Code. That was a civil case. This is a criminal one. But section 537 of the Criminal Procedure Code does much the same thing on the criminal side as sections 99 and 108 do on the civil. The principle underlying them is the same. But even after every allowance is made and every effort taken to avoid undue technicality the question still remains what is a judgment, for it is the judgment which decides the case and affects the rights and liberties of the parties that is the companye of the matter and, as the Privy Council say, the whole purpose of these rules is to secure certainty in the ascertainment of what the judgment was. The question as- sumes more importance than ever in a criminal case because of section 369 of the Criminal Procedure Code which provides that Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument companystituting such High Court, numbercourt, when it has signed its judgment, shall alter or review the same except to companyrect a clerical error. In our opinion, a judgment within the meaning of these sections is the final decision of the companyrt intimated to the parties and to the world at large by formal pronouncement or delivery in open companyrt. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do number matter but the substance of the thing must be there that can neither be bluffed number left to inference and company- jecture number can it be vague. All the rest the manner in which it is to be recorded, the way in which it is to be authenticated the signing and the sealing, all the rules de- signed to secure certainty about its companytent and matteran be cured but number the hard companye, namely the formal intima- tion of the decision and its companytents formally declared in a judicial way in open companyrt. The exact way in which this is clone does number matter. In some companyrts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving numberice to the parties and laying the draft on the table for a given number of days for inspection. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the companyrt as it is at the time of pronouncement. We lay numberstress on the mode or manner of delivery, as that is number of the essence, except to say that it must be done in a judicial way in open companyrt. But, however, it is done it must be an expression of the mind of the companyrt at the time of delivery. We say this because that is the first judicial act touching the judgment which the companyrt performs after the hearing. Everything else up till then is done out of companyrt and is number intended to be the operative act which sets all the companysequences which follow on the judgment in motion. Judges may, and often do, dis- cuss the matter among themselves and reach a tentative companyclusion. That is number their judgment. They may write and exchange drafts. Those are number the judgments either, how- ever heavily and often they may have been signed. The final operative act is that which is formally declared in open companyrt with the intention of making it the operative decision of the companyrt. That is what companystitutes the judgment. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus paniteniea, and indeed last minute alterations sometimes do occur. Therefore, however, much a draft judgment may have been signed beforehand, it is numberhing but a draft till formally delivered as the judgment of the companyrt. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who delivers the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the companyrt at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is numberneed for him to be physically present in companyrt but he must be in existence as a member of the companyrt and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes numbersteps to arrest delivery. But one cannot assume that he would number have changed his mind if he is numberlonger in a position to do so. A Judges responsibility is heavy and when a mans life and liberty hang upon his decision numberhing can be left to chance or doubt or companyjecture also, a question of public. policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for companysideration and criticism. The mere signing of the draft does number necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was indend- ed to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light dawn upon him before the delivery of judgment. Views similar to this were expressed by a Full Bench of the Calcutta High Court companysisting of nine Judges in the year 1867 in Mahomed Akil v. Asadunnissa Bibee 1 . In that case, three of the seven Judges who companystituted the Bench handed in signed judgments to the Registrar of the companyrt. Before the judgment companyld be delivered, two of them retired and one died. A Full Bench of nine Judges was companyvened to companysider whether the drafts of those three Judges companyld be accepted as judgments of the companyrt. Seton-Kerr J., who had heard the case along with them, said-- Certainly as far as I can recollect, they appeared to have fully made up their minds on a subject which they had very seriously companysidered, and on which they had abundant opportunities of forming a final determination. I am, however. number prepared to say that they might number on further companysideration have changed their opinions p. 13 . Despite this, all nine Judges were unanimous in holding that those three opinions companyld number be regarded as judgments in the formal sense of the term. In our opinion, Jackson J. expressed the law aright in these words- I have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open companyrt. Clearly, we are met today for the first and only time to give judgment in these appeals and it appears to me, beyond question, that Judges who have died or have retired from the companyrt cannot join in the 1 9 W.R.I. F.B. judgment which is to be delivered today, and express their dissent from it. p. 5 . Peacock C.J. pointed out at page 30 The mere arguments and expressions of opinion of individual Judges, who companypose a companyrt, are number judgments. A judgment in the eye of the law is the final decision of the whole companyrt. It is number because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple companyrt is companyposed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for. We do number agree with everything which fell from the learned Chief Justice and the other Judges in that case but, in our opinion, the passages given above embody the true rule and succinctly explain the reasons for it. As soon as the judgment is delivered, that becomes the operative pronouncement of the companyrt. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do number form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens number to be signed and is inadvertently acted on and executed, the proceedings companysequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication. After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed companypletely without further formality, except numberice to the parties and a rehearing on the point of change should that be necessary, provided it has number been signed. Another is that after signature L B D 2SCI-8 a review properly so called would lie in civil cases but numbere in criminal but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does number affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction between judgments which have number been delivered and so have number become operative and those which have. In the former case, the alteration is out of companyrt. It is number a judicial act. It is only part of a process of reaching a final companyclusion also there is numberformal public declaration of the Judges mind in open companyrt and companysequently there is numberjudgment which can be acted upon. But after delivery the alteration cannot be made without numberice to the parties and the proceeding must take place in open companyrt, and if there is numberalteration there is something which is final and companyclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final companyclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without numberice to the parties and without hearing them afresh when that is necessary and if there is numberchange the judgment companytinues in force. By change we mean an alteration of the decision and number merely the addition or subtraction of part of the reasoning. Our companyclusion is that the judgment which Kidwa,i J. purported to deliver on 5th January, 1953, was number a valid judgment because the other member of the Bench died before it companyld be delivered. The appeal is allowed and the order of the High Court which purports to be its judgment is set aside. As it is numberlonger possible for the Bench which heard the appeal and the companyfirmation proceedings to deliver a valid judgment we send the case back to the High Court for re-hearing and delivery of a proper judgment. 1953. November 23. BOSE J.The order for stay dated the 25th May, 1953, has number expended itself.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras Rao and Ayyar JJ. in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945. S. Krishnaswamy Iyengar S. Ramachandra with him for the appellants. Rajah Iyer R. Ganapathy Iyer, with him for the respondent. 1953. April 14. The Judgment of the Court was delivered by MAHAJAN J.-- One Lakshminarayana Iyer, a Hindu Brahmin, who owned companysiderable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi. Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he executed a will on 16th November, 1924, the companystruction of which is in companytroversy in this appeal. By this will he gave the following directions -- After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed. Ranganayaki entered into possession of the properties on the death of her husband. On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime of the widow. None of her children survived her. On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500. On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would number be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husbands estate, In spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants companyprising a number of properties. The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit -properties under the will of her father and plaintiff was thus entitled to maintain the suit. The defendants pleaded that the plaintiff had numbertitle to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and number less than a widows estate, that the estate given to Ramalakshmi under the will was but a companytingent one and she having predeceased the widow, numberinterest in the suit properties devolved on the plaintiff. The main issue in the suit was whether- the widow took under the will an absolute estate or an estate like the Hindu widows estate and whether the daughters interest therein was in the nature of a companytingent remainder, or whether she got in the properties a vested interest. The subordinate judge held that the widow took under the will a limited life, interest, and number an absolute estate or even a widows estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would number enure beyond her lifetime. The question as to the validity of the alienations was left undetermined. The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras. During the pendency of the appeal the widow died on 14th February, 1948. The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the companystruction of the will. Leave to appeal to the Supreme Court was granted and the appeal was admitted on the 27th November, 1951. The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall womans estate under Hindu law or merely a limited life estate in the English sense of that expression. It was number companytested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testators intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widows estate companyld be created by will, it being an estate created by law, but it is number settled that a Hindu can companyfer by means of a will oil his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and number as an heir. The companyrts primary duty in such cases is to ascertain from the language employed by the testator what were his intentions, keeping in view the surrounding circumstances, his ordinary numberions as a Hindu in respect to devolution of his property, his family relationships etc. in other words, to ascertain his wishes by putting itself, so to say, in his armchair. Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should companye to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he companyferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp companytrast to this, on his widow he companyferred numbersuch powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though numberrestraint in express terms was put on her powers of alienation in case of necessity, even that limited power was number given to her in express terms. If the testator had before his minds eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention companyld only be achieved by giving to the widow a limited estate, because by companyferring a full Hindu widows estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may number mature and under the will her interest would Only be a companytingent one in what was left indisposed of by the widow. It is significant that the testator did number say in the will that the daughter will enjoy only the properties left indisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are companycerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They companyld number enjoy the same properties in the manner directed if the widow had a full Hindu widows estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. The widow cannot be held to have been given a full Hindu widows estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was number companyferred on her. It was argued that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she companyld alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained. The properties disposed of by the will and mentioned in the schedule were companysiderable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is number shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land. By this transaction she substituted one property by another. For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does number appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she companyld fulfil these obligations without having recourse to alienations and hence he did number give her any power to do so. In this situation the inference that the testator must have of necessity intended to companyfer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow companyld alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husbands estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of companysiderations. We therefore hold that the estate companyferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widows estate in spite of the directions above- mentioned. She had companyplete companytrol over the income of the property during her lifetime but she had numberpower to deal with the companypus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was number entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testators death. She was given a present right of future enjoyment in the property. According to Jarman Jarman on Wills , the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testators properties on his death. It was strenuously argued by Mr. K. S. Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu womans estate than a life estate a,-, understood in English law wherein the estate is measured by use and number by duration, and that if this will was companystrued in the light of the numberions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widows estate and the daughter got under it a companytingent remainder in the nature of spes and on her death there was numberhing which companyld devolve on the plaintiff and he thus had numberlocus standi to question the alienations made by the widow, The learned companynsel in support of his companytention drew our attention to a number of decisions of different High Courts and companytended that the words of this will should be companystrued in the manner as more or less similar words were companystrued by the companyrts in the wills dealt with in those decisions. This rule of companystruction by analogy is a dangerous one to follow in companystruing wills differently worded and executed in different surroundings. Vide Sasiman Shib Narain 1 . However, out of respect for learned companynsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. Mr. Krishnaswami Iyengar sought to derive the greatest support for his companytention from the decision in Ram Bahadur Jager Nath Prasad 2 . The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was numberson or daughter, his niece S. would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words - If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brothers daughter, then two-thirds of the movable property will belong to the son and one-third to the daughter. But as regards the immovable property numbere shall have the lest right of alienation. They will of companyrse be entitled to enjoy the balance left after payment of rent. This will was companystrued as companyveying an absolute estate to the son and the daughter of the niece. It was remarked that in spite of an. express restriction against alienation, the estate taken by S. the niece was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a companypletely representative character but is unable to 1 491. A. 2 5. 2 3 Pat. L. J. 199. alienate except in case of legal necessity and that such a companystruction was in accordance with the ordinary numberions that a Hindu has in regard to devolution of his property. The provisions companytained in this will bear numberanalogy to those we have to companystrue. The restraint against alienation was repugnant to both a life estate and a widow,-, estate and was number, therefore, taken into account. But there were other indications in that will showing that a widows estate had been given. The fact that the gift over was a companytin- gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widows estate. There is numbersuch indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma Ammala Rama Naidu 1 . Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the sons daughter and the daughters son respectively. A suit was instituted by the sons daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire Properties, and number a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. This decision therefore goes against the companytention of the learned companynsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say In deference to the view taken in Maharaja of Kolhapur v. sundaram Iyer 2 , it may be possible to create an interest analogous to a womans estate in Hindu law numberwithstanding the addition of a gift over and that the estate taken by S. need number necessarily be only a life estate in the English law 1 1937 1 M.L.J. 268. 2 1925 I.L.R. 48 Mad. 1. sense of the term. We do number understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu womans estate number with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under companysideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan v. Gangayabai 1 were next cited-- As the will gave her the right to enjoy the income of the estate during her lifetime, it was evidently companytemplated that she should, as provided by -the Hindu law in the case of a widow, be in possession of the estate. Such casual observation made in respect of a will companyched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu 2 , the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows---- Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter. The will was companystrued as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take- under the law of inheritance, that is a limited estate analogous to a widows estate. At page 193 of the report it was observed as follows ---- The question therefore arises, did he intend to companyfer only a life estate or a daughters estate ? It seems 1 1938 2 M.L.J. 562. 2 1940 M.L.J. 188, to us that he meant to give a daughters estate rather than a life estate. He omits the words during her life with reference to the disposition in favour of the daughter. The words pass to my daughter would rather indicate that in the ordinary companyrse of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate companyferred on the daughter was number a life estate because there is numberdirect gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should companyvey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary companyrse of devolution. If it was the daughters estate that was intended to be companyferred, there can be numberquestion that the estate taken by the grandsons is number a vested interest. This line of reasoning which appealed to the learned judges is number of much he- to us here as the language hi this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widows estate is delimited by the words till your lifetime. Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer 1 . That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widows estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance. These remarks do number throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool v. Shewukram 2 There a Hindu inhabitant of Bihar by a document of 1 1925 I.L.R. 48 Mad. 1. 2 1874-75 2 I.A. 7. a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following observations were emphasized as relevant to this enquiry - It has been companytended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be companystrued as intimating the intention of the testator that Mst. Rani Dhun Kaur should number take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In companystruing the will of a Hindu it is number improper to take into companysideration what are known to be the ordinary numberions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family and it may be assumed that a Hindu knows that, as a general rule, at all events, women do number take absolute estates of inheritance which they are enabled to alienate. These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to companyfer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may number companyfer upon her by will a Hindu widows estate which she would otherwise get by inheritance. Generally speaking, there will be numberpoint in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widows estate and numbermore. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned companynsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the companystruction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty v. Narayana swami Chetty 1 . There the testator made a will in favour of his wife providing, inter alia, all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty nephew and my wife, should live together amicably as of one family. If the two companyld number agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow. It was held upon the companystruction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testators death which companyld number be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is number very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur 2 . This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms 1 19I4 26 M.L.J. 616. 2 1874-75 2 I.A 256. the remaining milkiut and minhai estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should number by any means transfer the milkiut estates and the slaves that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta adopted son . The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows Their Lordships do number feel justified, upon mere companyjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one companysequence, numberdoubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husbands estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate and it would further follow that Girdhari would number be possessed in any sense of a vested remainder, but merely of a companytingent one. It would also follow that she would companypletely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see numbersufficient reason for importing into this document words which would carry with them all these companysequences, and they agree with the subordinate judge in companystruing it according to its plain meaning. These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was companyched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves. Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan 1 . The will there ran as follows- When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wifes death, my daughter Mahalaxmi is owner of the said property after that. It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was number companytingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After companysidering the rival companytentions of the parties, we are of the opinion that numbersufficient grounds have been made out for disturbing the unanimous opinion of the two companyrts below on the companystruction of this will. Both the learned companynsel eventually companyceded that the language used in the will was companysistent with the testators intention of companyferring a life estate in the English sense as well as with the intention of companyferring a Hindu widows estate. It was, however, urged by Mr. Rajah Iyer that as numberexpress or implied power of alienation for purposes of all legal necessities was companyferred on the widow, that circumstance 1 1898 I.L.R. 22 Bom. 409. negatived the view that the testator intended to companyfer upon his widow a Hindu widows estate as she would get in case of intestacy.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 187 of 1952. Appeal from the Judgment and Decree dated the 19th day of October, 1949, of the High Court of Judicature at Bombay Bavdekar and Dixit JJ. in Appeal from Original Decree No. 275 of 1946 arising out of the Judgment and Decree dated the 17th day of December, 1945, in Special Civil Suit No. 21 of 1944 of the Court of Civil Judge Senior Division , Hubli. C. Setalvad, Attorney-General for lndia J. B. Dadachanji, with him for the appellant. R. Madhavi K. R. Bengeri, with him for the respondent, 1953. October 14. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal is directed against a judgment and decree of a Division Bench of the Bombay High Court dated October 19, 1949, affirming, in appeal, those of the Civil Judge, Hubli, passed in Special Suit No. 21 of 1924. The facts of the case lie within a short companypass and the whole companytroversy, so far as, this appeal is companycerned, centres round the short point as to whether or number the plaintiff s suit is barred by limitation. Both the companyrts below have decided this point against the plaintiff and he has companye up on appeal before us. To appreciate the companytentions that have been canvassed before us, a brief resume of the material facts will be necessary. The plaintiff appellant is the spiritual bead or Mathadhipati of a Lingayet Math known as Murusavirmath situated within Hubli Taluka in the district of Dharwar. On November 13, 1887, Gurusidhwaswami, who was the then head of this religious institution, granted a permanent lease of a tract of land belonging to the Math and forming part of R. No. 34, in favour of one Pradhanappa and the rent agreed to be paid by the lessee was Rs. 50 per annum for the first six years and thereafter at the rate of Rs. 25 annually. On June 19,1892, Pradhanappa sold a portion of the lease hold property, which is described in Schedule 1 b to the plaint, to a person named Bharamappa. In 1897 Gurusidhwaswami died and was succeeded by his disciple Gangadhar Swami who did number repudiate the permanent lease granted by his predecessor and went on accepting rents from the lessee in the same way as before. In April, 1905, another part of the land, which is described in Schedule 1 a to the plaint, was put up for sale in execution of a decree against Pradhanappas heirs and it was purchased by one Kadayya, and Kadayya in his turn sold the same to Bharamappa who had already purchased Schedule 1 b plot by private purchase. On April 8, 1910, Bharamappa made a gift of the entire premises companysisting of plots 1 a and 1 b to the Dakshina Maharashtra Digambar Jain Sabha, a registered body, for the purpose of building a school upon it for the education of Jain students. On August 31, 1920, Gangadhar Swami died and for some time after his death the affairs of the Math were in the hands of a companymittee of management. On November 25, 1925, the present plaintiff Gurusidhwaswami became the head of the Math. On August 27, 1932, the plaintiff instituted a suit, being Suit No. 80 of 1932, against the heirs and successors of Bharamappa for recovery of possession of the land companyprised in the permanent lease on the allegation that there being numberlegal necessity for granting the lease, the alienation was number binding on the Math and became void on the death of the last Mahant. The Jain Sabha was impleaded as defendant No. 23 in the suit, but under a wrong name. The suit was dismissed by the trial judge but on appeal by the plaintiff to the High Court of Bombay, the trial companyrts judgment was reversed and the plaintiffs claim for khas possession was allowed in respect of the suit land against all the defendants with the exception of defendant No. 23 who was dismissed from the suit on the ground of misdescription. The judgment of the High Court is dated the 26th of November, 1942. On 3rd December, 1943, the plaintiff appellant companymenced the present suit against the respondent Jain Sabha claiming khas possession of the land gifted in its favour by Bharamappa, alleging that as the original permanent lease was number binding on the Math for number being supported by legal necessity, the defendant companyld number acquire any title by grant from the successor of the lessee. The defendant Sabha resisted the suit and the two material questions round which the companytroversy centred were 1 whether the original permanent lease was supported by legal necessity, and even if it was number, 2 whether the plaintiffs suit was barred by limitation under article 134-B of the Indian Limitation Act? The trial judge decided the first point in favour of the plaintiff, but on the question of limitation the decision was adverse to him. The result was that the plaintiffs suit was dismissed Thereupon the plaintiff took an appeal to the High Court of Bombay and the learned Judges, who heard the appeal, companycurred in the decision of the companyrt below and dismissed the appeal and the suit. It is the propriety of this decision that has been challenged before us in this appeal. Both the companyrts below have held that a suit of this description is governed by article 134-B of the Limitation Act and the period of limitation is 12 years companyputed from the date when the previous Mahant died. The plaintiffs predecessor admittedly died in 1920 and the suit was brought more than 12 years after that and hence it was time-barred. To get round the plea of limitation, the learned Attorney-General, who appeared in support of the appeal, has put forward a two-fold companytention. It is argued in the first place that the decree for ejectment, which was passed in favour of the plaintiff and against the heirs of Bharamappa in the earlier suit of 1932, was binding on the present defendant on the principle that a decree against a lessee binds the sub-lessee as well. The defendant, therefore, was number companypetent to resist the plaintiffs claim for possession which was already allowed in the previous suit. The other ground urged is, that limitation is saved in this case by virtue of the provision of section 10 of the Indian Limitation Act. So far as the first ground is companycerned, it may be stated at the outset that even if the appellants companytention is right, the present suit would be barred under section 47 of the Civil Procedure Code and the proper remedy of the plaintiff would be to apply for execution of the decree in the previous suit. This difficulty, however, is number insuperable, as under section 47 of the Civil Procedure Code the companyrt is empowered to treat a suit as an execution proceeding, when there is numberquestion of limitation or jurisdiction standing in the way of the plaintiff. In our opinion, however, the companytention as put forward by the learned Attorney-General cannot succeed. It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, numbermatter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sublease also 1 . But there seem to be two insuperable difficulties in the way of applying that principle to the facts of the present case. In the first place, the suit of 1932 was number by a landlord or ex-landlord against his tenant for evicting him from the leasehold premises basing his claim on the ground of deter- mination of tenancy. The Mahant, who created the permanent lease in 1887, might number have been able to derogate from his grant and the lease might be taken to be valid so long as the alienating Mahant lived. As soon as he died, it was open to his successor to repudiate the lease and recover possession of the property on the ground that the alienation was number binding on the endowment. In the present case the immediate successor of the alienating Mahant companysented to the lessees companytinuing in possession of the property and thereby he might be treated as creating an interest in the lessee companymensurate with the period of his lifetime or the tenure of his office. After his death, however, his successor did number accept any rent from the lessee or otherwise treated the lease as subsisting and in 1932 he brought the suit for recovery of possession of the property against the successors of the original lessee on the footing that they did number acquire any title by the grant which, being unsupported by legal necessity, was number binding on the Math. This was number a suit by a landlord against his tenant it was a suit by the holder or manager of the Math to recover possession of Math property which was improperly alienated by his predecessor on the ground that the defendant became a trespasser as soon as the previous Mahant died and the plaintiff was entitled to recover possession on proof of his title. Quite apart from this, the other difficulty is equally formidable for it does number appear to us that the Vide Sailendra v. Bijan, 49 C.W.N. i33 Yusuff v. Jyotish Chandra, L.R. 59 cal. 739. defendant Jain Sabha was at all a sub-lessee under Bharamappa or his heirs. We have gone carefully through the document executed by Bharamappa in, favour of the Jain Sabha. Both in form and in substance it is a deed of gift and number a sub-lease. The gift, it seems, Was made for a specific purpose, namely, for companystruction of a school building upon the site which was to be used for the education of the boys and girls of the Jain companymunity, and it was for this reason that the deed provided that on the companytingency of the school being removed from the site or its ceasing to exist, the land would revert to the donor. The attaching of a companydition like that to a deed of gift companyld number, in our opinion, companyvert it into a sublease. It is clear, therefore, that the suit of 1932 was number a suit for eviction instituted by a lessor against his lessee, number companyld the present defendant be regarded as a sub-lessee under the defendants in the earlier suit. It may be unfortunate that by reason of a pure misdescription, the earlier suit was dismissed against the Jain Sabha, but that is altogether irrelevant for our present purpose. In our opinion, the first companytention of the AttorneyGeneral must fail. As regards the other ground raised by the Attorney- General, we are of opinion that the point is without any substance, and section 10 of the Indian Limitation Act is of numberassistance to the plaintiff in the present it case. In order that a suit may have the benefit of section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, number being assigns for valuable companysideration. It may be taken that the word assign is sufficiently wide to companyer a lessee as well but the difficulty is, that as the lease was for valuable companysideration, the case would companye within the terms of the exception laid down in section 10 and companysequently the defendant would number be precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attomey-General companytended rather strenuously that the transfer here was number for valuable companysideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to be reduced to Rs. 25 which would companytinue all through. We desire to point out that the expression valuable companysideration has a well known companynotation in law and it is number synonymous with adequate companysideration.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 181 of 1952. Appeal by special leave granted by the Supreme Court on the 16th October, 1952, from the decision dated the 22nd December, 1952, of the Labour Appellate Tribunal of India at Calcutta in Appeals Nos. Cal. 366/51, Cal. 69/52 and Cal. 70/52, arising out of the award dated the 9th February, 1952, of the Chairman, Industrial Tribunal, Delhi. C. Setalvad Attorney-General for India and C. Chatterjee B. L. Agarwal, with them for the appellant. S. B. Chari and Hardyal Hardy for the respondents. 1953. April 10. The Judgment of the Court was delivered by PATANJALI SASTRI C. J.-This is an appeal by special leave from a decision dated September 22, 1952, of the Labour Appellate Tribunal of India at Calcutta setting aside an award dated February 9, 1952, made by the Industrial Tribunal companystituted to adjudicate on certain disputes between the appellant, the Punjab National Bank Ltd., Delhi hereinafter referred to as the Bank and its workmen, the respondents represented by their Union. The facts leading to this appeal may be briefly stated. Several other disputes between the parties had already been referred on February 21, 1950, to another Industrial Tribunal presided over by Sri K. S. Campbell-Puri, and during the pendency of the proceedings before the said Tribunal, the Bank alleged that the respondents along with other workmen numbering more than a thousand illegally companymenced a general strike on April 18,1951, in companynection with a fresh dispute. Thereupon, numberice was issued to the strikers that unless they returned to work by April 24, 1951, they would be deemed to have left service of their own accord. That numberice having been ignored by the strikers a second numberice was issued to them on April 27, 1951, terminating their service. The Government of India thereupon intervened, and as a result of the discussions held between the Government officials and the Bank, the latter agreed to take back all the employees except 150 against whom the Bank had objections on account of their alleged subversive activities and other objectionable and unlawful companyduct before and during the strike. On July 2, 1951, the Government of India companystituted a Tribunal to decide the questions regarding the dismissals etc. of the aforesaid 150 employees, and that Tribunal, after calling for the statements of case on behalf of the parties and hearing them, made an award on February 9, 1951, refusing reinstatement on the sole ground that the respondents had gone on an illegal strike in companytravention of section 23 b of the Industrial Disputes Act, and that the Bank was entitled to dismiss them. The Tribunal, however, granted to the respondents companypensation byway of salary and allowances at half the rates from the date of dismissal to the date of the publication of the award. The respondents appealed to the Labour Appellate Tribunal at Calcutta which, while agreeing with the Industrial Tribunal that the strike was illegal, held that it was companydoned by the Bank and it was, therefore, number open to it to justify the dismissal of the respondents on the ground that they had participated in the illegal strike. The Appellate Tribunal further held that the dismissal of the respondents was wrongful because numbercharges were framed against any of them in respect of their alleged acts of violence or subversive activities and their explanation was number called for. The Appellate Tribunal accordingly thought that further evidence was necessary on certain specific points mentioned in its, order and reserved its decision as to whether the respondents were entitled to reinstatement till after such evidence was taken. Learned companynsel for the Bank advanced a two-fold companytention in support of this appeal. He challenged the companyrectness of the companyclusion that the Bank had, in the circumstances of the case, companydoned the illegal strike by the respondents, and maintained that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the respondents. On that basis learned companynsel argued that there companyld numberlonger be any question of reinstating the respondents in the service of the Bank as such reinstatement would in law amount to companypelling the Bank to employ these respondents afresh in its service, which the Appellate Tribunal had numberjurisdiction to do. He accordingly submitted that this Court should set aside the order of the Labour Appellate Tribunal dated September 22, 1952, obviating the further enquiry directed by the said order. We companysider it unnecessary to express any opinion on the question of companydonation or waiver of the illegal strike for, assuming that there was numbersuch companydonation or waiver and it was open to the Bank to rely upon the illegal strike as a valid ground for dismissing the respondents, we are of opinion that section 33 of the Industrial Disputes Act, 1947, furnishes a short answer to the further companytention that the Appellate Tribunal had numberjurisdiction to order reinstatement of the respondents. That section provides, inter alia, that numberemployer shall, during the pendency of any proceedings before a tribunal in respect of any industrial dispute, discharge by way of dismissal or otherwise, any workman companycerned in the dispute save with the permission in writing of the said Tribunal. Admittedly, numbersuch permission was obtained. If the pendency of the proceedings before Sri Campbell-Puri made the strike of the respondents illegal under section 23 b of the Act, the dismissal of the respondents by the Bank without obtaining his permission as required by section 33 was also illegal. We see numberforce in the argument of the AttorneyGeneral that the section has numberapplication to the case as strikes and lock-outs are dealt with in a different chapter, Chapter V, and as the respondents were number companycerned in the disputes pending adjudication before Sri Campbell-Puri. The terms of section 33 are wide enough to companyer the present case, and the fact that it finds place in Chapter VII headed Miscellaneous is by numbermeans inconsistent with its general application to all cases of discharge on whatever ground it may be based. This is shown by the recent amendment of the section by Act XLVIII of 1950 which has omitted the words except for misconduct number companynected with the dispute in the newly substituted section.

Case appeal was rejected by the Supreme Court

Bose, J. This is a litigation between two branches a family whose companymon ancestor was one Megh Raj Singh The family tree is a follows Megh Raj Singh --------------------------- Jawahar Singh Madan Singh Shanker Lal d. 1884 Brijlal d. 1890 Daughter Mst. Mohan Dei Oct. 1929 Kishan Lal Mahabir Prasad Husband Narain Das d. 21-5-1940 d. 1921 Shri Kishan Das Mst. Deoki Jugal Kishore Amar Nath March 1929 d. 1894 Plff 1. Plff 2. Dhiyan Singh Jai Bhagwan Singh Deft. 1 Deft. 2 Ghas Ram Onkar Prasad The dispute is about property which, according to the plaintiffs, formed part of Shanker Lals estate. The plaintiffs state that the two branches of family were separate at all material times that on Shanker Lals death in 1884 his daughter Mst. Mohan Dei the defendants grandmother succeeded to a limited estate. The reversion opened out on her death in October 1929 and the plaintiff are entitled as the next reversioners, for Mst. Mohan Deis son Shri Kishan Das predeceased her. The defendants admits that Shanker Lal was separate from the other branch of the family. They divide the property which their grandmother Mst. Mohan Dei possessed into two categories. First, there was property which they say belonged to her. These are properties which according to them, she purchased or obtained under the mortgages in her own right. Next, there were properties which belonged exclusively to her father and to which she succeeded as daughter. On Shanker Lals death disputes arose between Shanker Lals fathers brothers son Brijlal the plaintiffs grandfather and the defendants grandmother Mst. Mohan Dei. Brijlal claimed the entire estate by survivorship, his allegation being that Shanker Lal dies in a state of jointness with him and that all the properties were joint family properties. This dispute was referred to arbitration and an award was delivered. Under the Mst. Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal. A division was effected accordingly and ever since, that is to say from 21-12-1884, the date of the award, down to 26-3-1941, the date of the suit, each branch has been in separate and uninterrupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner. The defendants claim that the plaintiff are bound by this award and are in any event estopped. The plaintiff lost in the first Court but won in the High Court. The defendants appeal. The first question is about the nature of the award. The defendants say that it gave Mst. Mohan Dei an absolute estate. The plaintiff deny this and say she obtained only a limited estate. In our opinion, the defendants are rights. The question at issue a simple one of companystruction. The award is Ex. A-1. The operative portion runs thus Having regard to the specifications give above, Brij Lal, first party, and Musammat Mohan Devi, the deceaseds female issue, second party, have been held entitled to shares, worth Rs. 28,500 and Rs. 42,482-10-0 respectively in the said properties and accordingly two lost have been made and the first lot is allotted to the first party and the second lot to the second party and hence forth the parties shall have number claim or liability against each other and each party has become permanent owner malik mustaqil of his or her share and reach party should enter in proprietary possession and occupation of his or her respective share The underlining is ours. We do number think the words admit of any doubt, particularly as the words malik mustaqil have been used see Ram Gopal v. Nand Lal and Other 1950 S.C.R. 766 at 778 and Bishunath Prasad Singh v. Chandika Prasad Kumari 1933 60 I.A. 56 at 61 62 . But it was argued that the awards must be viewed as a whole and that certain earlier passages show that his companyld number have been the intention. The passages relied on are these. First, the finding that the properties claimed by Mst. Mohan Dei as her own really belonged to Shanker Lal. He had purchased some and acquired others through mortgages in her name but he was only a benamidar and had numbertitle to them. Second, that some of the properties, in dispute were ancestral and the rest self acquired, though whether with the held of ancestral funds or number the arbitrator was unable to determine. Third, the arbitrators view of the Hindu law, namely that - The brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self-acquired property. And lastly, this passage - Furthermore, when the 2nd party Mohan Dei has inherited numberproperty from the her husband she, in case of getting, this share, will certainly settled down in the Amroha and will make her fathers haveli as her abode and thus the haveli shall remain abad as heretofore, and in this way the deceased name will be perpetuated and it is positive that, after the Musammat, this property shall devolve on her son, who will be the malik owner thereof, and later the descendant of this son will become the owner thereof. We do number think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do. In our opinion, the arbitrator was companyfused in his mind both as regards the facts as well as regards the law. His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense. Some cases were cited in which the word malik, and in one case the words malik mustaqil were held to import a limited estate because of the qualifying circumstances. We think it would be pointless to the examine them because we are companycerned here with the documents before us and even if it be companyceded that the words which would ordinarily means one thing can be qualified by other words and circumstances appearing in the same documents we are of opinion that the passages and circumstances relied on in this case do number qualify the strong, clear and unambiguous words used in this documents. The learned companynsel for the plaintiffs-respondents had to search diligently for the meaning for which he companytended in other passages and had to make several assumptions which do number appear on the face of the awards as to what the arbitrator must have thought and must have intended. We are number prepared to qualify clear and unambiguous languages by phrases of the lubious import which can be made to companyncide with either view by calling in aid assumptions of fact about whose existence we can only guess. The award was attacked on other grounds also. It was urged, among other things, that the arbitrator had travelled beyond the terms of his reference in awarding Mst Mohan Dei an absolute interest. It was also urged that even if Brijlal was bound his son Kishan Lal, who did number claim through him but who had an independent title as reversioner to Shanker Lal, would number be bound, and it was companytended that if Kishan Lal was number bound the plaintiffs would number be either. But we need number examine these points because we do number need to proceed on the binding nature of the award. Even if the award be invalid we are of the opinion that the plaintiffs claims is companypletely answered by the plea of estoppel. Now it can be companyceded that the before an estoppel can arise, there must be first a representation of an existing fact as distinct from a mere promise de future made by one party to the other second that the other party, believing it, must have been induced to act on the faith of it and third, that he must have so acted to his detriment. It will be necessary to deal with the in stages and first we will companysider whether there was any estoppel against Brijlal. It is beyond dispute that he laid serious claim to the property in 1884. He claimed that he was joint with Shanker Lal and so, on Shanker Lals death he became entitled to the whole of the estate and that Mst. Mohan Dei had only a right of maintenance. Whether he would have had difficulty in establishing such a claim, or indeed whether it would have been impossible for him to do so, is wholly immaterial. The fact remains that he pressed his claim and was serious about it so must so that he was able to pursue the arbitrator that he had an immediate right to part of the estate. Mst. Mohan Dei, on the other hand, resisted this claim and companytended that she was entitled to separate and exclusive possession, and in any event that she was entitled in absolute right to a part of the property. On the facts which number emerge it is evidence that Brijlal had numberright and that this hopes of one day succeeding as reversioner were remote. Mst. Mohan Dei had a son Shri Kishan Das who was the next presumptive reversioner and as the boy was a goods deal younger than Brijlal Brijlals chances were slim. Actually, the boy survived Brijlal by the nearly forty years. Brijlal died in 1889 or 1890 and the boy did number die till March. 1929. Had he lived another eight or nine months he would have succeeded and the plaintiffs would have been numberhere. Now this dispute, seriously pressed by both sides, was referred to arbitration. It is neither here number there whether the award was valid. Whether the decision fell within the scope of the reference or whether it had any binding character in itself. Even if it was wholly invalid it was still open to the parties to say Never mind whether the arbitrator was right or wrong, his decision is fair and sensible so instead of wasting further time and money in useless litigation, we will accept it and divide the estate in accordance with his findings. That would have been a perfectly right and proper settlement of the dispute and whether it bound third parties or number it would certainly bind the immediate parties and that in effect is what they did. By his companyduct Brijlal induced Mst. Mohan Dei to believe that this would be the case and on the faith of that representation, namely, the acceptance of the award, he induced Mst. Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciable portion of the estate, and he himself obtained and substantial advantage to which he would number otherwise have been entitled and enjoyed the benefit of it for the rest of his life, and to his credit be it said he never attempted to go behind his decision. In any event, we are clear that that created an estoppel as against Brijlal. In our opinion, the present case is very similar to the one which their Lordship of the Privy Council decided in Kanhai Lal v. Brij Lal 1919 45 I.A. 118 . There also there was a dispute between a limited owner and a person who but for an unproved claim adoption which he put forward, had numberright to the estate. The dispute was taken to the companyrts but was companypromised and the according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years. Later, the succession opened out and the other party to the companypromise, who by then had stepped into the reversion, claimed the rest of the estate, which had been assigned to the limited owner, against, her personal heirs. The Judicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit, namely, as reversioner, he having been a party to the companypromise and having acted on it and induced the other side to alter her position to her detriment, was estopped. We do number think the fact that there was a voluntary companypromise whereas here there was the imposed decision of an arbitrator makes any difference because we are number proceedings on the footing of the award but on the actings of the parties in accepting it when they need number have done so if the present companytentions are companyrect. It is true that in one sense a question of title is one of law and it is equally true that there can be numberestoppel on a question of law must be grounded on facts and when Brijlals companyduct is analysed it will be found to entail an assertion by him that he admitted and recognised facts which would in law give Mst. Mohan Dei an absolute interest in the lands awarded to her. It was because of that the assertion of the fact, namely, his recognition, and admission of the existence of facts which would give Mst. Mohan Dei an absolute interest that she was induced to part with about one-third of the property to which Brijlal on a true estimate of the facts as number known had number right. There can be numberdoubt that she acted to her detriment and there can, we think, be equally numberdoubt that she was induced to do so on the faith of the Brijlals statement and companyduct which induced her to believe that he accepted all the implications of the award. But in any event, we are clear that Brijlal would have been estopped. The nature of the dispute and the description of its given in the award show that the there was companysiderable doubt, and certainly much dispute about the true state of affairs. Even if the arbitrator was wholly wrong and even if he had numberpower to decide as he did it was open to both sides to the accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide. That tin our opinion is a representation of an existing fact or set of facts. Each would companysequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst. Mohan Dei and absolute interest in the suit property. We turn next to his son Kishan Lal. Brijlal died in 1889 or 1890. at that date Mst. Mohan Deis son Shri Kishan Das was alive and was the next presumptive reversioner. Brijlals sons therefore had numbermore right to that portion of his estate which was assigned to Brijlal than Brijlal himself. But they took possession and claimed through their father. They did number claim an independent title in themselves. and, as we know, they had numberother title at that date. They were therfore in numberbetter position than Brijlal and as Brijlal would have been estopped, the estoppel descended to them also because they stepped into his shoes. This would be so even if Brijlal had claimed the property independently for himself which he did number but much more so as he claimed in joint family right and evidently acted as karta or manager on behalf of his family. But apart from this, there was also an independent estoppel in Kishan Lal. We have said, he had numberright of the this part to this part of the estate when his father died apart from the award. But nevertheless he took possession along with his brother and the two of them treated the property as their own and derived benefit from it. They partitioned the estate between themselves and sold away parts of it to third parties. Kishan Lal knew of the award. He knew that mutation had been effected in accordance with it and possession taken by Brijlal under it and that the rest had been retained by Mst. Mohan Dei. His retention of the property therefore and his companytinuing to deal with it on the basis of the award indicated his own acceptance of the award and therefore, by his acts and companyducts, he represented and he also, like his father, admitted the existence of facts which would in law give Mst. Mohan Dei an absolute estate and futher, he allowed Mst. Mohan Dei to deal with the estate as her own, for she, on her part, also acted on the award and claimed absolute rights in the property assigned to her. She dealt with it. On that footing and gifted it in that right to her grandsons, the companytesting defendant on 4th April, 1929. Mutation was effect and Kishan Lal raised numberobjection. We see then that the Brijlal retained possession of property to which he was number entitled for a period of five or six years from 1884 to 1889 or 1890 and induced Mst. Mohan Dei to part with it by representing that and accepted the award and her absolute title to the rest, and after him Kishan Lal and his brother between them enjoyed the benefit of it from 1889 or 1890 down to October 1929 when Mst. Mohan Dei died. That is for a further forty, years, and led Mst. Mohan Dei to believe that they also acknowledged her title to an absolute estate. We have numberdoubt that the time Kishan Lal was also estopped fro the reason given above. Had he questioned the award and reopened the dispute Mst. Mohan Dei would at once have used and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlals assertion that he too accepted it. Kishan Lals inaction over these years with full knowledge of the facts as is evident from the deposition of the D. W. 2, Dhiyan Singh, whose testimony is uncontradicted and his acceptance of the estate with all its companysequential benefits unquestionably creates an estoppel in him. This witness tells us that - Kishanlal always accepted this award and acted upon it . He qualifies this in cross-examination by saying that the Kishan Lal had also objected to it but the witness did number know whether that was before or after Mst. Mohan Dei death. The documents filed show it was after, so there is numberreason why the main portion of his statement which is uncontradicted, and which companyld have been companytradicted, should number be accepted. In March, 1929 Mst. Mohan Deis son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner, and in October, 1929 when the reversion opened out the estate vested in him, or rather would have vested in him but for the estoppel. The question therefore, is did he companytinue to be bound by the estoppel when the assumed a new character on the opening out of the reversion? We have numberdoubt he did. The decision of the Judicial Committee which we have just cited, Kanhai Lal v. Brijlal 1918 45 I.A. 118 is, we think clear on the point. Although other reversioners who do number claim through the one who has companysented are number bound the companysenting reversioner is estopped. This is beyond dispute when there is an alienation by a limited owner without legal necessity. See Ramgouda Annagouda v. Bhausaheb 1927 54 I.A. 396 at 403 where the ground of decision was - but Annagouda himself being a party to an benefiting by the transaction evidenced thereby was precluded from the questioning any part of it. In our opinion, the same principles apply to a case of the present kind. It was companytended, however, on the strength of Rangasami Gounden v. Nachiappa Gounden 1919 46 I.A. 72 and Mt. Binda Kuer v. Lalitha Prasad , that even if Kishan Lal did take possession in 1889 or 1890 on the strength of a title derived from his father. That would number have precluded him from the asserting his won rights in a different character when the succession opened out. Reliance in particular was placed upon page 308 of the latter ruling. In our opinion, that decision is to be distinguished. In that case the reversion did number fall in till 1916. Long before that, namely in 1868 the next presumptive reversioners entered into a companypromise where by the grandfather of one Jairam who figured in that case obtained a goods deal more than he would have been entitled to in the ordinary way. But for the companypromise this grandfather would have got only one anna 12 gundas share whereas due to the companypromise he got as much as 2 annas 4 gundas. The actual taking of possession was however referred under the companypromise till the death of one Anandi Kuer. She died in the 1885 and on the at date Jairam was entitled to his grandfather share as both his father and grandfather were dead. Jairam accordingly reaped the benefit of the transaction. But it is to be observed that the extra benefit which he derived was only as to a 12 gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own right under a title which did number spring from the companypromise. Jairam lost 1 anna 4 gundas to a creditor Munniram and out of the one anna which he had left from the 2 annas 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500. Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs purchased came out of the extra 12 gundas which Jairam obtained because of the companypromise rather than out of the 1 anna 12 gundas to which he had a good and independent title anyway and of companyrse unless the plaintiff 13 gundas companyld be assigned with certainty to the 12 gundas it would be impossible to say that they had obtained any benefit from the companypromise. The Judicial Committee also added that the even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by numbermeans followed that the plaintiffs admitted that fact number would that necessarily have given them a benefit under the companypromise. They had the right to companytest the position and gamble on the possibility of being able to prove the companytrary. Their Lordship added - Unless the plaintiffs individual companyduct makes it unjust that they should have a place among Bajrangi Lals reversioners their legal rights should have effect. In the other case, Rangasami Gounden v. Nachiappa Gounden 1919 46 I.A. 72, their Lordship decision about this matter turned on the same sort of point see page 87. The present case is very different. When Kishan Lal took possession of his father property he held by virtue of the award and under numberother title, and for forty years he companytinued to derive benefit from it. Accordingly he would have been estopped even if he had claimed in a different character as reversioner after the succession opened out. It was companycede that if the estoppel against Kishan Lal endured after October 1929, then the plaintiff who claim through Kishan Lal, would also be estopped. The appeal succeeds. The decree of the High Court is set aside and that of the first Court dismissing the plaintiffs claim is restored.

Case appeal was accepted by the Supreme Court

ORGINAL JURISDICTION. Petition No. 683 of 1951 under Art. 32 of the Constitution of India for a writ in the nature of habeas companypus. The facts are set out in detail in the judgment. Bawa Shiv Charan Singh amicus curiae for the petition- er. C. Setalvad, Attorney-General for India Jindra Lal, with him for the respondents. 1952. March 27. The Court delivered judgment as fol- lows-- DAS J. --This is an application under article 82 of the Constitution for the issue of a writ in the nature of habeas companypus and for the immediate release of the petitioner who is alleged to have been kept in illegal detention in Baroda Central Prison. On February 15, 1951, the petitioner was arrested under an order made on February 13, 1951, by the then District Magistrate, Surat, in exercise of powers companyferred on him by the Preventive Detention Act, 1950. A companyy of the said order was served on the petitioner at the time of his ar- rest. On the same date grounds of detention were served on the petitioner as required by section 7 of the Act. It was specifically mentioned in the grounds that it was number in the public interest to disclose further facts. The petitioner moved the High Court of Bombay under article 226 of the Constitution companyplaining that his detention was illegal and praying that he should be forthwith released. In that appli- cation one of the points urged was that the grounds in support of the detention were false, vague and fantastic and that the detention order was made in bad faith. Two affida- vits were filed on behalf of the State in support of the detention order. That application was, on April 17, 1951, dismissed by the Bombay High Court. In the meantime, the case of the petitioner was placed before the Advisory Board which on Aprils, 1951, made a report stating that in its opinion there was sufficient cause for the detention of the petitioner. According to the affidavit of Venilal Tribho- vandas Dehejia, Secretary to the Government of Bombay, Home Department, filed in answer to the present application, this report of the Advisory Board was placed before the Govern- ment and, on April 13, 1951, the Government decided to companyfirm the order of detention. This decision was, on April 28, 1951, companymunicated to the District Magistrate, Surat, in a companyfidential letter in the terms following -- Confidential letter No. B.D. II/1042-D 11 Home Department Political Bombay Castle, To 28th April, 1951. The District Magistrate, Surat. Subject-Preventive Detention Act, 1950- Review of detention orders issued under the-- Reference your letter No. Pol. 1187/P, dated the 23rd Febru- ary, 1951, on the subject numbered above. In accordance with section 9 of the Preventive Detention Act, 1950, the case of detenu Shri Dattatreya Moreshwar Pangarkar was placed before the Advisory Board which has reported that there is sufficient cause for his detention. Government is accordingly pleased to companyfirm the detention order issued against the detenu. Please inform the detenu accordingly and report companypliance. The case papers of the detenu are returned herewith. Sd -G, K. Kharkar, for Secretary to the Government of Bom- bay, Home Department. It also appears from the aforesaid affidavit that Sri K. Kharkar who signed the letter for the Secretary to the Government of Bombay, Home Department, was at the time an Assistant Secretary and, as such, was, under rule 12 of the Rules of Business made by the Government of Bombay under article 166 of the Constitution, authorised to sign orders and instruments of the Government of Bombay. The petitioner has number moved this Court under article 32 of the Constitution companyplaining that he is being unlawfully detained. The only question is whether he has been deprived of his personal liberty in accordance with procedure estab- lished by law. He 80 is said to be detained by the State in exercise of powers companyferred on it by the Preventive Detention Act, 1950, as amended in 1951. The State must, accordingly, satisfy us that the procedure established by law has been strictly followed. Although a supplementary petition has been filed in this Court companyplaining that the grounds supplied to him are false, vague, lacking in particulars and insufficient to enable the petitioner to make an effective representation against the order of detention, it has number, however, been pressed before us by learned companynsel appearing as amicus curiae in support of the application. At the hearing before us, learned companynsel has companyfined his arguments to challeng- ing the validity of detention of the petitioner on two grounds, namely, 1 that the State Government has failed to companyply with the requirements of section 11 1 of the amended Act in that at the time of companyfirming the detention order it omitted to specify the period during which the detention would companytinue, and 2 that the order of companyfirmation is number in proper legal form, in that it is number expressed to be made in the name of the Governor as required by article 166 1 of -the Constitution. Ground No. 1. The validity of this ground of attack depends on a proper understanding of section 11 1 of the Preventive Detention Act, which, as amended, runs as fol- lows-- In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the deten- tion of a person, the appropriate Government may companyfirm the detention order and companytinue the detention for such period as it thinks fit. The argument is that the sub-section companytemplates a decision companytaining two things, namely, 1 a companyfirmation of the detention order and 2 a direction for the companytinua- tion of the detention. I do number think this argument is sound, for if the intention were that both the things should be included in an order then the sub-section would have been worded differently. It would have ended by saying that the appropriate Government may make an order companyfirming the detention order and companytinuing the detention for such period as it thinks fit. Grammatically section 11 1 companyfers two powers, namely 1 the appropriate Government may companyfirm the deten- tion order and 2 the appropriate Government may companytinue the detention for such period as it thinks fit. The companyfir- mation of the detention order certainly companytemplates the taking of an. executive decision, but the detenu being already in custody and the detention order being companyfirmed his detention companytinues automatically and, therefore, numberfurther executive decision is called for to companytinue the detention. It follows that it is number necessary to include a direction for the companytinuation of the detention in the decision companyfirming the detention order. It is next suggested that the words such period in the sub-section clearly imply that it is necessary to specify the period during which the detention would companytinue, for if the intention of Parliament were otherwise, the section would have stopped after the words may companytinue his deten- tion. It is urged that if, as held by this Court in Petition No. 308 of 1951 Makha, Singh Tarsikka v. The State of Punjab , it is illegal, after the amendment of the Act, to mention any period of detention in the initial order of detention made under section 3 of the Act and if numberperiod of detention need be mentioned at the time of companyfirmation under section 11 1 then the appropriate Government will, after companyfirmation, lose sight of the case and the detenu will be detained indefinitely. It is suggested that if two companystructions are possible, the one that advances the inter- ests of the subject should be adopted. I do number think that two companystructions are possible at all or that the suggested companystruction will be of any advantage to the detenu for reasons which I proceed to state briefly. There can be numbertwo opinions that detention without trial is odious at all times and that it is desirable, therefore, in cases of preventive detention that a definite period of detention should, if possible, be specified. But whether the Act, on a true companystruction of it, requires such a specification of period is an entirely different question and to answer that question regard must be had to the actual language used in the Act. If the intention of Parliament were that the period during which the detention would be companytinued must be specified then the sub-section 11 1 would have empowered the appro- priate authority to companytinue the detention for such period as it thinks fit to specify instead of as it thinks fit. Further, the numberion that numberspecification of the period will companytinue the detention for an indefinite period need number oppress us unduly, because the Act itself being of a limited duration such detention must necessarily companye to an end on the expiry of the Act. In A.K. Gopalans case 1 , Kania J. at page 126 said-- It was argued that section 11 of the impugned Act was invalid as it permitted the companytinuance of the detention for such period as the Central Government or the State Govern- ment thought fit. This may mean an indefinite period. In my opinion, this argument has numbersubstance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound. To the like effect were the following observations of Mahajan J. at page 232 - Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period. This section in my opinion has to be read in the background of the provision in subclause 3 of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951. These observations were made on section 11 of the Act as it stood before the amendment of the Act. That section has been substantially, if number verbatim. reproduced in section 11 1 of the amended Act and 1 1950 S.C.R. 88. accordingly the above observations will apply to the present section 11 1 with equal force and companyency. indeed in S. Krishnan v. The State of Madras 1 Sastri J., aS he then was, expressed himself as follows in companynection with the present section 11 1 - The objection to the validity of section 11 1 can be disposed of in a few words. The argument is that the dis- cretionary power given to the appropriate Government under that sub-section to companytinue the detention for such period as it thinks fit authorises preventive detention for an indefinite period, which is companytrary to the provisions of article 29. 4 . But, if as already observed, the new Act is to be in force only up to 1st April, 1982, and numberdeten- tion under the Act can companytinue thereafter, the discretion- ary power companyld be exercised only subject to that over-all limit. Two points clearly emerge out of these observations as I companyprehend them. The very argument as to the invalidity of the section companyld number be raised at all except on the basis that the section, by itself and on a true interpretation of it, permitted an indefinite detention. In the second place, this argument was met by the Court, number by saying that that was number the companyrect meaning of the section and that on the companytrary the words such period necessitated the fixation of a definite period of detention but, by saying that the life of the Act being limited, the duration of detention permitted by the section was in any event companyterminous with the life of the Act and companyld number go beyond it. This answer of the Court makes it clear that the Court fully recognised that the section, by itself and on its true interpretation, sanctioned an indefinite detention but held that that company- tingency had been averted by the fact that the Act itself was of a limited duration. It is said that the section should be companystrued irrespective of whether it occurs in a temporary statute or a permanent one, and it is urged that if the statute were a permanent one the section, on the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J. in the 1 1951 S.C.R. 621 at p. 629. following passage in his judgment in S. Krishnan v. The Static of Madras suprat at page 639 with which I companycurred It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically companye to an end at the expiry of the period for which they have been enacted and numberhing further can be done under them. The detention of the peti- tioners therefore is bound to companye to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law. For all I know, such drastic and extensive power to companytinue the detention as long as it may think fit may number be given by Parliament to the executive Government in a permanent statute. But if it does think fit to do so, it will number be for the Court to question the knowledge, wisdom or patriotism of the Legislature and to permit its dislike for the policy of the law to prevail over the plain meaning of the language used by the Legislature. Apart from this companysideration, there is a period specified in the sub-sec- tion itself, for as soon as the appropriate Government will cease to think fit to companytinue the detention it will revoke the detention order under section 13 and the period of detention will automatically companye to an end. Again, if the idea of indefinite detention were so repugnant as to induce us to companystrue sub-section 11 1 by reading into it the requirement that the period of detention must be specified at the time the order of detention is companyfirmed, it will lead us to a situation which cannot be maintained in view of a decision of this Court. The section, it will be numbericed, does number authorise the appropriate Government to companytinue the detention for such period as it thinks lit from time to time. Therefore, the power companyferred on the appropriate Government by this sub-section will be exhausted by its single exercise and it will number be possible to extend the period of deten- tion any longer. This view of the matter will, however, run companynter to our decision in Petition No. 584 of 1951, Chakar Singh v. The State of Punjab, where it has been held that there is numberhing in section 11 1 to prevent the appropri- ate Government from directing the detention of a person to companytinue further so long as the period fixed by the previ- ous order has number expired and the person has number been released. According to this decision the appropriate Government may direct the detention to companytinue even after the expiry of the period fixed by the order companyfirming the detention order or any subsequent order provided such direc- tions are given before the expiry of the period fixed by the immediately preceding order. From what source does the appropriate Government derive its power to direct the fur- ther companytinuation of the detention after having, in the order of companyfirmation, once specified the period of deten- tion ? Section 13 of the Act gives power to the appropriate Government to revoke or amend a detention order which must mean the initial order of detention under section 3 of the Act but number an order made under section 11 1 companyfirming a detention order or fixing a period of detention. Therefore, the authority to extend the period of detention previously fixed which, in view of our decision, must be held to exist, will have to be derived from the very words may companytinue such detention for such period as it thinks fit. It fol- lows, therefore, that the specification of the period of detention does number destroy or abridge the wide over-all power of the appropriate Government to direct the companytinua- tion of the detention as long as it thinks fit. If the specification of the period of detention is number at all sacrosanct and the appropriate Government may nevertheless companytinue the detention as long asit thinks fit to do so, why is the specification of a period to be regarded as vitally or at all necessary ? So far as the detenu is company- cerned, his detention Wilt number be any more definite and less irksome if it is open to the appropriate Government to companytinue the detention by an indefinite number of orders made from time to time until the expiry of the Act itself by efflux of time in the case of a temporary statute or by its repeal in the case of a perma- nent Act. It is said that if we insist on a specification of a definite period when the companyfirmatory order is made and thereafter each time the period of detention is extended then the appropriate Government will have to apply its mind to the case of the detenu before it will make an order for further companytinuation of the detention, but that if we say that numbertime need be specified, the appropriate Government will lose sight of the case and the detenu will be detained indefinitely. I do number see why we should impute such dere- liction of duty to the appropriate Government but even if we do so and insist on the specification of the period of detention we shall perhaps be driving the appropriate Gov- ernment to fix the longest permissible period of detention ending with the expiry of the Act itself and then to lose sight of the case of the detenu. That, I apprehend, will do numbergood to the detenu. Section 13 gives ample power to the appropriate Government to revoke the detention order at any time and it is expected that it will apply its mind to each case and revoke the detention order and release the detenu as soon as it is satisfied that his detention is numberlonger necessary. In any event, the companysiderations of hardship urged upon us may make it desirable that a period of deten- tion should be fixed but this cannot alter the plain meaning of the language of the section. The Court is number companycerned with any question of policy. It has to ascertain the inten- tion of the Legislature from the language used in the Act. In my judgment, on a proper companystruction of section 11 1 , a specification of the period of companytinuation of the deten- tion is number necessary, however desirable one may companysider it to be. Ground No. 2 On this head the argument of learned companynsel for the petitioner is that numbervalid order of companyfir- mation has been made in proper legal form at all and that a companyfidential companymunication from the Home Department to the District Magistrate cannot be regard- ed as an order under section 11 1 of the Act. Learned Attor- ney-General urges that section 11 1 of the Act companytem- plates only the taking of an executive decision, namely. the companyfirmation of the detention order and companytends that the sub-section does number companytemplate the making of a formal order. He draws our attention to section 3 of the Act which expressly refers to an order of detention and points out that section 11 1 does number refer to any order of companyfirma- tion. Reference may, however. be made to section 13 which authorises the appropriate Government to revoke or modify the order of detention. In this section also there is numberreference to any order of revocation or modification but nevertheless revocation or modification must imply an execu- tive decision. Under section 11 1 , as under section 13, the appropriate Government has to apply its mind and companye to a decision.Whether we call it an order or merely an execu- tive action makes numberdifference in the legal incidents of the decision. Section 11 1 plainly requires an executive decision as to whether the detention order should or should number be companyfirmed. The companytinuation of the detention as a physical fact automatically follows as a companysequence of the decision to companyfirm the detention order and, for reasons stated above, does number require any further executive deci- sion to companytinue the detention. It follows, therefore, that the Preventive Detention Act companytemplates and requires the taking of an executive decision either for companyfirming the detention order under section 11 1 or for revoking or modifying the detention order under section 13. But the Act is silent as to the form in which the executive decision, whether it is described as an order or an executive action, is to be taken. No particular form is prescribed by the Act at all and the requirements of the Act will be fully satis- fied if it can be shown that the executive decision has in fact been taken. It is at this stage that learned companynsel for the petitioner passes on to article 166 of the Constitu- tion and companytends that all executive action of the Govern- ment of a State must be 624 expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of numberhings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he companytends, will be brought to a standstill. I agree that every executive decision need number be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an outsider or is required to be officially numberified or to be companymunicated it should numbermally be ex- pressed in the form mentioned in article 166 1 . i.e., in the name of the Governor. Learned Attorney-General then falls back upon the plea that an omission to make and au- thenticate an executive decision in the form mentioned in article 166 does number make the decision itself illegal, for the provisions of that article, like their companynterpart in the Government of India Act, are merely directory and number mandatory as held in J.K. Gas Plant Manufacturing Co. Rampur Ltd. and Others v. The King-Emperor 1 . In my opinion, this companytention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those companyferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have numbercontrol over those entrusted with the duty and at the same time would number promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them number affecting the validity of the acts done. The companysiderations which weighed with 1 1947 F.C.R. 141 154-9 . their Lordships of the Federal Court in the case referred to above in the matter of interpretation of section 40 1 of the 9th Schedule to the Government of India Act, 1935, appear to me to apply with equal companyency to article 166 of the Constitution. The fact that the old provisions have been split up into two clauses in article 166 does number appear to me to make any difference in the meaning of the article. Strict companypliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is number an order made by the Governor. If, therefore, the requirements of that article are number companyplied with, the resulting immunity cannot be claimed by the State. This, however, does number vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the companyfirma- tion of an order of detention under section 11 1 that Act does number itself prescribe any particular form of expression of that executive decision. Article 166 directs all execu- tive action to be expressed and authenticated in the manner therein laid down but an omission to companyply with those provisions does number render the executive action a nullity. Therefore, all that the procedure established by law re- quires is that the appropriate Government must take a deci- sion as to whether the detention order should be companyfirmed or number under section 11 1 . That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circum- stances of this case, numberbreach of the procedure established by law and the present detention of the petitioner cannot be called in question. For the reasons stated above, in my opinion, this appli- cation must fail. PATANJALI SASTRI C.J.- I agree with the judgment just delivered by my learned brother Das and I have numberhing to add. MUKHERJEA J.--In my opinion this application should be dismissed and I deem it proper to state succinctly my own views on the questions that have been raised in the case. The validity of the detention of the petitioner has been challenged before us on a two-fold ground. The first ground urged is that it was imperative on the part of the appropri- ate Government, when it companyfirmed the order of detention under section 11 1 of the Preventive Detention Act, to specify the period during which the detention was to companytin- ue and an omission to state the period vitiates the order. The other companytention raised is that the order of companyfirma- tion number being expressed to be made in the name of the Governor, as is required under article 166 1 of the Con- stitution, is void and inoperative. So far as the first ground is companycerned, it would be necessary to advert to the language of section 11 1 of the Preventive Detention Act which runs as follows -- Action upon the report of Advisory Board 1 In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. It is to be numbered that section 3 1 of the Preventive Detention Act under which the initial order of detention is made is worded differently in this respect and it merely empowers the Central Government.or the State Government, as the case may be, to make an order, under the circumstances specified in the section, directing that a person be de- tained and numberhing is said about the period for which such detention should be directed. It is number settled by a pro- numberncement 1 of this companyrt that number only it is number neces- sary for the detaining authority to mention the period of detention when passing the original order under section a 1 of the Preventive Detention Act, but that the order would be bad and illegal if any period is specified, as it might Vide Makhan Singh Tarsikka v. The State of Punjab, Petition No. 308 of 1951. prejudice the case of the detenu when it goes up for companysid- eration before the Advisory Board. The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person companycerned. It is neither called upon number is it companype- tent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under section 11 1 of the Act companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. In my opinion, the words for such period as it thinks fit presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to wheth- er the original order of detention should be companyfirmed and if so, for what further period the detention is to companytinue, Obviously that is the proper stage for making an order or decision of this description as the investigation with regard to a particular detenu such as is companytemplated by the Preventive Detention Act is then at an end and the appropri- ate Government is in full possession of all the materials regarding him. It companyld number have been in the companytemplation of the legislature that the matter should be left indefinite and undetermined even then. This, in my opinion, is the reason for the difference in the language of section 11 1 of the Preventive Detention Act as companypared with that of section 3 1 of the Act. I do number think that once the appropriate Government in making the order under section 11 1 specifies the period during which the detention of the person companycerned is to companytinue. it becomes functus officio and is incapable of extending the detention for a further period at a subsequent time if it companysiders necessary. In my opinion, section 13 of the Act gives very wide powers to the detaining authority in this respect and it can revoke or modify any detention order at any time it chooses and the power of modification would certainly include a power of extension of the period of detention, provided such power is exercised before the period originally fixed has expired and provided the extend- ed period does number exceed the over-all limit which is company extensive with the life or duration of the Act itself. This is quite in accordance with the view taken by this companyrt in Chakar Singh v. The State of Punjab 1 . The question number is whether the omission to state the period of further detention while companyfirming the detention order under section 11 1 of the Preventive Detention Act makes the detention illegal ? The point is number free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952. and has only been recently extended to a further period of six months. and numberdetention under the Act can companytinue after the date of expiry of the Act, I am inclined to hold that number-specifica- tion of the further period in an order under section 11 II of the Act does number make the order of detention a nullity. If numberperiod is mentioned, the order might be taken to imply that it would companytinue up to the date of the expiration of the Act itself when all detentions made under it would automatically companye to an end. Of companyrse, the appropriate Government is always at liberty to terminate the order of detention earlier, if it companysiders proper, in exercise of its general powers under section 13 of the Act. I am number much impressed by the argument that the number-mentioning of the period in the order of companyfirmation is likely to cause serious prejudice to the interests of the detenu. It may be that if a period is mentioned, the attention of the Govern- ment is likely to be drawn to the case near about the time when the period is due to expire and the facts of the case may be reviewed by the appropriate authority at that time before it decides to extend the detention any further but it seems to me to be clear from the provision of section 13 that the Act companytemplates review of individual cases by the Petition No. 584 of appropriate Government from time to time irrespective of any period being mentioned in the order of detention. It can legitimately be expected that the detaining authority would discharge the duties which are imposed upon it, but even if it does number, there is numberhing in the law which prevents it from fixing the period of detention up to the date of expiry of the Act itself, which is by numbermeans a long one, and in that case the Court would obviously be powerless to give any relief to the detenu. It is perfectly true that an order for detention for an indefinite period is repugnant to all numberions of democracy and individual liberty, but the indefi- niteness in the case of an order made under section 11 1 of the Preventive Detention Act is in a way cured by the fact that there is a limit set to the duration of the Act itself, which automatically prescribes a limit of time beyond which the order cannot operate. In my opinion, section 11 1 of the Preventive Detention Act does companytem- plate that a period should be mentioned during which the further detention of the detenu is to companytinue and the Government should see that numberomission occurs in this re- spect, but I am unable to hold that this omission alone would make the order a nullity which will justify us in releasing the detenu. The other question for companysideration is, whether the order is invalid by reason of the fact that it has number been expressed in the manner laid down in article 166 of the Constitution. Article 166 runs as follows -- 166 1 . All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. 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 Gover- number, and the validity of an order or instrument which is so authenticated shall number be called in question on the ground that it is number an order or instrument made or executed by the Governor. The Governor shall make rules for the more companyven- ient transaction of the business of the Government of the State, and for the allocation among Ministers the said business in so far as it is number business with respect to which the Governor is by or under this Constitution required to act in his discretion. In the case before us the order companyfirming the deten- tion purports to be signed by Mr. G.K. Kharkar, for the Secretary to the Government of Bombay, Home Department. The affidavit filed in this case by V.T. Dehejia shows that Mr. Kharkar was then the Assistant Secretary to the Home Department and was authorised under the rules framed under article 3 of the Constitution by the Governor of Bombay to sign orders and instruments for the Government of Bombay. The order admittedly is number expressed to be made in the name of the Governor and if article 166 1 of the Constitution applies to this case, it certainly does number fulfil the requirement of that provision. To get round this difficulty the learned Attorney-General has put forward a two-fold argument. He has argued in the first place that article 166 1 of the Constitution applies to a case where the execu- tive action has got to be expressed in the shape of a formal order and it is only such order that requires authentica- tion in the manner laid down in clause 2 of the article. Section 11 1 of the Preventive Detention Act, it is said, does number necessitate the passing of a formal order at all. It is enough if the detaining authority decides by any form of executive action that the original order of detention should be companyfirmed. The other argument put forward is that the provisions of clauses 1 and 2 of article 166 are directory and number mandatory in the sense that even if a particular order is number expressed or authenticated in the way mentioned in these provisions, it would number be an inef- fective or invalid order provided it is proved to have been made by the proper authority to whom that particular busi- ness has been allocated by the rules framed under clause 3 of article 166. The only result of such omission may be that the order would number enjoy an immunity from challenge on the ground specified in clause 2 of the article. So far as the first point is companycerned, it seems to me to be quite companyrect to hold that article 166 1 of the Constitution is companyfined to cases where the executive action requires to be expressed in the shape of a formal order or numberification or any other instrument. I cannot, however, agree with the learned AttorneyGeneral that section 11 1 of the Preventive Detention Act does number companytemplate the passing of a formal order. It is true that section 11 1 does number speak of an order of companyfirmation but when there is an initial order of detention made under section 3 of the Preventive Detention Act, it companyld numbermally be companyfirmed only by passing another order. This would be clear from the provision of section 13 of the Act which empowers the de- taining authority to revoke or modify a detention order any time it chooses. Neither revocation number modification is possible without any order being made to that effect and yet section 13 like section 11 1 does number speak of an order at all. The first companytention of the Attorney-General therefore cannot succeed. The other companytention raised by the learned AttorneyGen- eral involves companysideration of the question as to whether the provision of article 166 1 of the Constitution is imperative in the sense that number-compliance with it would nullify or invalidate an executive action. The clause does number undoubtedly lay down how an executive action of the Government of a State is to be performed it only prescribes the mode in which such act is to be expressed. The manner of expression is ordinarily a matter of form, but whether a rigid companypliance with a form is essential to the validity of an act or number depends upon the intention of the legislature. Various tests have been formulated in various judicial decisions for the purpose of determining whether a mandatory enactment shall be companysidered directory only or obligatory with an implied nullification for disobedience. It is unnecessary for our present purpose to discuss these matters in detail. In my opinion, article 166 of the Constitution which purports to lay down the procedure for regulating business transacted by the Government of a State should be read as a whole. Under clause a the Governor is to make rules for the more companyvenient transaction of such business and for alloca- tion of the same among the Ministers in so far as it does number relate to matters in regard to which the Governor is required to act in his discretion. It is in accordance with these rules that business has to be transacted. But what- ever executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the Governor in whom the executive power of the State is vested and it shall further be authenticated in the manner specified in the rules framed by the Governor. Clauses 1 and 2 of article 166 in my opinion are to be read together. Clause 1 cannot be taken separately as an independent mandatory provision detached from the provi- sion of clause 2 . While clause 1 relates to the mode of expression of an executive order or instrument, clause 2 lays down the way in which such order is to be authenti- cated and when both these forms are companyplied with, an order or instrument would be immune from challenge in a companyrt of law on the ground that it has number been made or executed by the Governor of the State. This is the purpose which underlies these provisions and I agree with the learned Attorney-General that number-compliance with the provisions of either of the clauses would lead to this result that the order in question would lose the protec- tion which it would otherwise enjoy, had the proper mode for expression and authentication been adopted. It companyld be challenged in any companyrt of law even on the ground that it was number made by the Governor of the State and in case of such challenge the onus would be upon the State author- ities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under article 166 of the Constitution. This view receives support from a pronouncement of the Federal Court in J.K. Gas Plant Manufacturing Company Limited and Others King-Emperor 1 , where a somewhat analogous provision companytained in section 49 1 of Schedule IX of the Government of India Act came up for companysideration and the provision was held to be directory and number imperative. Even ii clause 1 of article 166 is taken to be an independent provision unconnected with clause 2 and having numberrelation to the purpose which is indicated therein, I would still be of opinion that it is directory and number imperative in its character. It prescribes a formality for the doing of a public act. As has been said by Maxwell 2 , where the prescriptions of a statute relate to the perform- ance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconven- ience or injustice to persons who have numbercontrol over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and govern- ment of those on whom the duty is imposed, or in other words as directory only. In the present case the order under section 11 1 of the Preventive Detention Act purports to be an order of the Government of Bombay and is signed by the officer who was companypetent to sign according to the rules framed by the Governor under article 166 of the Constitu- tion, and in these circumstances I am unable to hold that the order is a nullity even though it has number been expressed to be made in the name of the Governor. The result is that both the grounds fail and the petition is dismissed. CHANDRASEKHARA AIYAR J.--I companycur in the order just number pronounced by my learned brother Mukherjea J. and I have numberhing useful to add. MAHAJAN J.--The legality of the detention of the peti- tioners in all the above-mentioned petitions is challenged on two grounds 1 That the order of 1 1947 F.C. R. 142. Maxwell on Interpretation of Statutes, pp. 379-80. companytinuance of the detention made under section 11 of the Preventive Detention Act, 1950, as amended, does number specify the period of detention. 2 That it is number expressed in the name of the Governor as required by article 166 1 of the Constitution. The petitioners were informed through the District Magistrate that government had companyfirmed the deten- tion orders but they were number told for what period their detentions were to companytinue. No order expressed in the manner companytemplated by article 166 1 was served on them. It was companytended on behalf of the petitioners that the requirements of the Preventive Detention Act should be strictly companyplied with, that it was one of the requirements of section 11 of the Act that the government should at the time of companyfirming the detention order specify the period of the companytinuance of such detention and that number-compliance in this particular vitiated the companytinuance order. It was further urged that unless the order was expressed in the manner required under article 166 1 of the Constitution and served on the person companycerned it had numberforce. The learned Attorney-General companytested both these company- tentions. He argued that it was number incumbent on government to make any formal order under section 11 and all that the section companytemplates is an executive action indicating an intention of the government to companyfirm the detention order and companytinue the detention after receipt of the report of the Advisory Board, that there was numberhing in the language of the section which obliged the government to specify the period of such detention and that any omission to mention the period would number make the companytinuation of the detention illegal. It was also argued that the action of the govern- ment under section 11 need number necessarily be expressed as required in article 166 1 that these provisions were merely directory and number mandatory and had been substantial- ly companyplied with. For a proper appraisal of these companytentions it is neces- sary to set out the relevant provisions of the Constitution and of the Preventive Detention Act. Articles 22 4 and 5 of the Constitution are in these terms -- No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- a an Advisory Board companysisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion Suffi- cient cause for such detention When any person is detained in pursuance of an order made under any law, providing for preventive detention, the authority making the order shall as soon as may be, companymuni- cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order. Sections 3, 9, 10, 11 and 13 of the Preventive Detention Act provide as follows-- The Central Government or the State Government may-- a if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to it is necessary so to do, make an order directing that such person be detained. In every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in subsection 2 place before an Advisory Board companystituted by it under section 8 the grounds on which the order has been made and the representa- tion, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report made by such officer under sub-section 3 of section 3. 10. 1 the Advisory Board shall, after companysidering the materials placed before it and, after calling for such further information, as it may deem necessary, from the appropriate Government or from the person companycerned, and if in any particular case it companysiders it essential, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date specified in sub-section 2 of section 9. The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or number there is sufficient cause for the deten- tion of the person companycerned. 11. 1 In any case where the Advisory Board has re- ported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may company- firm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. In any case where ,the Advisory Board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned, the appropriate Govern- ment shall revoke the detention order and cause the person to be released forthwith. 13. 1 Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 X of 1897 , a detention order may at any time be revoked or modified,, The revocation of a detention order shall number bar the making of a fresh detention order under section 3 against the same person. The answer to the first question depends on the company- struction to be placed upon the words such period as it thinks fit occurring in section 11 of the Act. The words have to be given their plain meaning irrespective of the circumstance that they occur in a temporary statute and have to be companystrued in the same manner if they occurred in a permanent statute. It has been held by this Court in Makkan Singh Tarsikha State of Punjab, Petition No. 308 of 1951, that fixing of the period of detention in the initial order of detention under section 3 is companytrary to the scheme of the Act inas- much as such a companystruction tends to prejudice the case of the detenu when placed before the Advisory Board. It was emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly- followed and must number be departed from to the disadvantage of the person affected. The language employed in section 11 of the Act is different from the language of section 3 and to my mind, this difference indicates a companytrary intention. The words such period as it thinks fit have the meaning that government has to specify and fix the period of such deten- tion. If these words were companystrued in the manner suggested by the learned Attorney-General, it will lead to the result that the Preventive Detention Act would authorise detention of a person without specification of the period of such detention at any moment of time, subject of companyrse to the over-all limit fixed for the life of the Act itself, and that the government would number be obliged to apply its mind to the question of duration at all. Such a companyclusion, to my mind, has to be avoided unless the language employed companyclu- sively points to it. Under the Constitution, the detention of a person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person companycerned. The Constitution itself has specified the maximum limit of the initial detention and detention for a period longer than three months can only be made on the basis of the report of the Advisory Board. The words longer period than three months to my mind do number indicate that the period can be of indefinite duration, as it companyld be under the unique Regulation III of 1818. On the other hand, they indicate a specified period, though longer than three months. The Constitution visualizes, in my opinion, a period of detention initially for three months, which may subsequently be extended for a further period of time but it rules out the idea of detention without a fixed duration, i.e. with a beginning but without an end. Any numberion of an indefinite period of detention is wholly for- eign to a democratic companystitution like ours. As pointed out by me in Gopalans ease 1 , the law of 1 1950 S.C.R, 88. 88 preventive detention during peace times is an evil of neces- sity as it deprives a person of his personal liberty without a trial and even without a personal hearing and that being so, the safeguards provided against unregulated executive action have to be companystrued as widely as possible for the benefit of the person detained. The words such period imply that there has to be a beginning and an end of that period in other words, it has to be for a certain dura- tion the extent depending on the pleasure of the govern- ment.Though the government is entitled to fix the period of detention at its choice, it is bound to make a decision about it. If this was number the true import and meaning of the language employed in the section and the intention was that the government need number specify the duration of the deten- tion, the section, in my view. would have been drafted differently. There was numbernecessity to use the wordsfor such period as it thinks fit therein at all. The intention would have been well expressed if the section was worded as follows- The appropriate Government may companyfirm the detention order. It was on these lines that rule 26 of the Defence of India Rules was drafted and the same was the scheme of Regulation III of 1818. The warrant to the jailer in the regulation directed him to receive the person into custody and to deal with him in companyformity with the orders of the Governor-General. The same phraseology companyld have been employed in section 11. It has been held by this Court in Chakkar Singh v. The State of Punjab Petition No. 584 of 1951 , that the power of the detaining authority under section 11 is number exhausted once it specifies the period of detention but that it can, before the expiration of the period initially fixed, direct the detention of a person to companytinue for a further period I took this view for the simple reason that it was in accord with the provisions of the General Clauses Act which provide that the authority which has the power to make a certain order or to give a certain direction has also the power before it becomes functus officio to revise and reconsider that order or to amend or to alter it. That decision does number by implication suggest that it was number obligatory on government to specify the period of detention under section 11. On the other hand, it presupposes that such a period should be fixed but the Government can change its mind if it companysiders necessary. The companyclusion that the section authorizes detention for an indefinite period was negatived by the late Chief Justice and by me in Gopalans case 1 . The learned Chief Justice in that case in dealing with section 11 made the following observations -- It was argued that section 11 of the impugned Act was invalid as it permitted the companytinuance of the detention for such period as the Central Government or the State Govern- ment thought fit. This may mean an indefinite period. In my opinion this argument has numbersubstance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound. In the same case I said as follows -- Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period. This section in my opinion has to be read in the background of the provision in subclause 3 of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951. In S. Krishnan v. The State of Madras 2 , the question of the validity of section 11 was again examined. The companyrt took the view that the section was good. Bose J. dissenting held that the section was bad as it provided for an indefi- nite period of detention. Patanjali Sastri J., as he then was, and with whom the learned Chief Justice agreed as to the validity of the section observed as follows-- The objection to the validity of section 11 1 can be disposed of in a few words. The argument is that the dis- cretionary power given to the appropriate 1 1950 S.C.R. 88. 2 1951 S.C.R. 621. Government under that sub-section to companytinue the detention for such period as it thinks fit authorises preventive detention for an indefinite period, which is companytrary to the provisions of article 22 4 . But, if, as already observed, the new Act is to be in force only up to 1st April. 1952, and numberdetention under the Act can companytinue there after the discretionary power companyld be exercised only subject to that over-all limit. In the same case while upholding the validity of section 11, I made the following observations -- It may be pointed out that parliament may well have thought that it was unnecessary to fix any maximum period of deten- tion in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically companye to an end at the expiry of the period for which they have been enacted and numberhing further can be done under them. The detention of the peti- tioners therefore is bound to companye to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law. The point for decision in that case was whether it was necessary while enacting the Preventive Detention Act to fix a maximum period for the detention of a person as companytem- plated by article 72 7 of the Constitution, and whether for want of such fixation the statute was void. That companyten- tion was negatived. The point that arises for determination in the present case,however, is whether the Government when making an order under section 11 of the Act has got to specify a period for the companytinuance of the detention. The question as to the meaning of the words such period as it thinks fit was neither argued number decided in either of the cases mentioned above. The result of the above decisions to my mind is thisthat section 11 does number provide for an indefinite period of detention and is number bad on that ground, though Bose J. took a companytrary view. The section in view of these decisions should read thus - In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person. the appropriate Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit, but number beyond the period of the life of the Act itself . Within the period of the life of the Act the Government can fix any period for the duration of the detention. The words such period as it thinks fit, in my opinion, oblige the Government to fix a period of the detention of the person companycerned within the over-all limit of the period of the life of the Act. The government must make up its mind and decide in each individual case after the receipt of the report of the Advisory Board whether a particular detenu has to be kept in detention for the whole of the over-all peri- od, or for any period shorter than that. It cannot be pre- sumed that every case requires detention for the maximum period. That decision is however subject to review and alteration before the time originally determined runs out. The companytention that the Government need make numberorder at all under section 11 and that it can indicate its intention by some other method seems to me to be unsound. This result was sought to be spelt out of the phraseology of sections 3 and 11 of the Act. Section 3 provides for the making of an order of detention, while section 11 does number use that phraseology. In my opinion, however, this difference in the phraseology of the two sections does number in any way support the companytention raised. The making of an order is implicit in the language of the section itself. Confirmation of an order already passed can only be by making an order. The section in another part provides for the revocation of an order. Revocation of an order again can only be made by passing an order of revocation and cannot be done by any other process. Section 13 provides number only for revocation of an order but for modification of the order of detention. It is obvious that the modification of an order is only possible by passing a fresh order and number in any other manner. No particular significance can attach to the omission of the words make an order in section The word order has numerous meanings but the meaning relevant in the present companytext is decision. It also means an authoritative direction or mandate. It cannot be companytended that Government can companyfirm or companytinue the detention without taking a decision or issuing a direc- tion. Such a decision or direction is tantamount to an order. I am therefore clearly of the view that it is the intention of the law that when the report of the Advisory Board reaches the Government, it has to companye to a decision and pass an order in accordance with that decision against the detenu to the effect that in view of the report of the Advisory Board the detention order is companytinued for a certain period. Reliance was placed by the learned Attorney-General in support of his companytention on two decisions of the High Courts in India. In Prahlad Krishna v. The State of Bombay 1 , it was held that it was number necessary to men- tion the period during which the detenu will be further detained after the State Government had companyfirmed the deten- tion order. This companyclusion was reached on the following reasoning - The words of the section are exactly similar in effect to the words of a companytract between two parties in which one said to the other that the latter should keep a cycle lent by the former for such period as he thought fit. There would be numbernecessity in such a case for the person to whom the cycle was lent to say how long he would keep the cycle If the legislature had intended that the appropriate Government should make an order after re- ceiving a report of the Advisory Committee as to how long the detenu should be detained, it would have said number that the detenus detention should companytinue as long as the appro- priate Government thought fit, but pass an order for the A.I.R. 1952 Bom. 1. detention of the person companycerned for such further period as it deemed fit. The analog of the cycle companytract, in my opinion, is neither happy number apposite, in the companystruction of section 11 of the Preventive Detention Act. Further I am number able to see how the draft suggested by the High Court would have more appropriately brought out the intention of the legisla- ture than the words of the section as it number stands. The addition of the word further does number necessarily indicate that the Government is bound to specify a period if the original words such period do number so indicate. In Ram Adhar Misra v. The State 1 , it was held that an order of detention which does number specify the period of detention cannot be regarded as illegal. Reliance was placed on the observations of the late Chief Justice and myself in Gopalans case 2 , and cited earlier in this judgment. These observations do number support the companyclusion reached by the High Court, as already observed. The decision is number supported on any other independent reasoning. The nearest analogy to the language employed in section 11 is found in the provisions of Part IV of the Code of Criminal Procedure relating to prevention of offences. In sections 106 to 110 of this Part the language employed is a person can be called upon to execute a bond for his good behaviour etc. for such period number exceeding one year or three years as the Magistrate thinks fit to fix. It is number possible to argue that the magistrate can call upon a person to execute a bond without fixing a period for which that bond is to be good, and that in the absence of such determi- nation it has to be presumed that the bond has to be execut- ed for the maximum period mentioned in the section. In my opinion, failure to fix the period for which the bond is to be operative would make the order ineffective. and any default on the part of the person called upon to give the bond would number be punishable. The discretion given to Government by A.I.R. 1951 All. 18 2 1950 S.C.R. the phrase as it thinks fit is limited by the duty imposed on it by the provisions of the section. The next question that falls to be determined and which is of some difficulty, is whether failure to fix the period makes the detention illegal. After companysiderable thought I have reached the companyclusion that the numberdetermination by Government of the period of the companytinuance of the detention operates prejudicially against the detenus and makes the detention illegal. It is possible and even probable that had the Government on receipt of the report of the Advisory Board applied its mind and companye to a decision on the point, it might well have fixed the duration of the detention at a point of time that would have expired by number, though it is also likely that it might number have expired by number. In such a situation when the matter is in doubt it is number right to hold that the detention of the petitioners at the present moment is lawful. The onus of establishing affirmatively that the detention of these petitioners is lawful at the present moment rests on the detaining authority and in the circumstances it has to be held that this onus remains undischarged. The subsequent companyduct of the Government in resisting these petitions is number relevant in this enquiry in the absence of an order as prescribed by the statute. If the Government finds that the detention of the petitioners is necessary up to 31st March, 1952, it can give effect to that intention in these cases by issuing a fresh order of deten- tion.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 22 of 1950. Appeal from the judgment and order dated 29th June, 1950, of the High Court of Judicature at Simla Weston J. and Khosla J. in Criminal Appeal No. 432 of 1949 arising out of a judgment dated 5th August, 1949, of the Court of the Additional Sessions Judge, Amritsar, in Ses- sions Trial No. 7 of 1949 and Case No. 8 of 1949. Jai Gopal Sethi R. L. Kohli, with him for the appel- lants. Gopal Singh for the State. 1952. March 21. The Judgment of the Court was delivered by FAZL ALl J. --The three appellants were tried by the Additional Sessions Judge at Amritsar and found guilty of having murdered two persons named Darshan Singh and Achhar Singh and sentenced to transportation for life. The High Court of Punjab upheld their companyviction and sentence and granted them a certificate under article 134 1 c of the Constitution that the case is a fit one for appeal to this Court. Hence this appeal. The facts of the case may be briefly stated as follows. On the evening of 16th December, 1948, a little before sunset, Achhar Singh, one of the murdered persons, went to the house of one Inder Singh in village Dalam for getting paddy husked. Achhar Singhs brother, Darshan Singh, who was working as a driver at Amritsar, came to Dalam from Amritsar the same evening, and, on companying to know from his father that Achhar Singh had gone to Inder Singhs house, he also went there. while the two brothers were returning home, they were attacked by the three appellants and two of their relatives in a lane adjoining Inder Singhs house. The five assailants, who were armed with deadly weapons, in- flicted a number of injuries on the two victims, as a result of which they died then and there. After the murder, the appellants and their companypanions tied the two dead bodies in two kheses wrappers and took them to village Saleempura where two other persons, named Ajaib Singh and Banta Singh, joined them, and the dead bodies after being dismembered were thrown into a stream known as Sakinala at a place about five miles from village Dalam. Bela Singh, father of the deceased persons, who was one of the persons who claims to have witnessed the occurrence, did number leave the village at night on account of fear, but he started about two hours before sunrise on the next morning and lodged the first information report at 10 A.M. at the nearest police station. A police officer arrived in village Dalam shortly after- wards, and after investigation a charge-sheet was submitted against seven persons including the present appellants. At the trial, five of the accused were charged with offences under section 302 read with section 149 and under section 201 read with section 149 of the Indian Penal Code. and the remaining two accused were charged with the offence under section 201 read with section 149 of that Code. The learned Judge who tried the accused, companyvicted the appellants and two other persons under section 302 read with section 149 of the Penal Code and sentenced them to transportation for life, and companyvicted Ajaib Singh under section 201 read with section 149 and sentenced him to three years R.I. Bantu Singh, accused, was acquitted. On appeal, the Punjab High Court upheld the companyviction of the present appellants and acquitted the remaining three persons. Before proceeding to discuss the evidence in the case, it is necessary to refer to what has been. described as the motive for the murder. It appears that in June, 1947, Natha Singh, father of the third appellant, Swaran Singh, was murdered, and Darshan Singh and Achhar Singh, the two mur- dered persons in the case before us, and their third broth- er, Sulakhan Singh, were charged with the murder of that person. As a result of the trial, Darshan Singh was acquit- ted and Achhar Singh was sentenced to 11/2 years R.I., while Sulakhan Singh was sentenced to 7 years R.I. The judgment of the Sessions Judge in that case was delivered shortly before the date of the present occurrence, and it is companymon ground that Achhar Singh had been released on bail by the appellate companyrt and was at large at that time. It is said that the appellants and their relatives felt aggrieved by the acquittal of Darshan Singh and by the light sentence passed on Achhar Singh, and therefore companymitted this murder in a spirit of frustration and revenge. It was companyceded before us by the learned companynsel for the appellants that the facts stated above companystituted a strong motive for the murder, but he also companytended that they companystituted an equally strong motive for the appellants being falsely implicated in case the murder was companymitted, as was suggest- ed by him, in circumstances under which the murderers companyld number be seen or identified. It therefore becomes necessary to set out the evidence adduced by the prosecution in support of the murder. The evidence led by the prosecution may be divided under two main heads -- 1 Direct evidence, and 2 Circumstantial evidence. The direct evidence companysists of the testimony of four eye-witnesses, namely, Bela Singh, father of the deceased, who claims to have gone to the scene of occurrence on hearing an outcry and to have witnessed the murderous assault on his sons Inder Singh and his wife, Mst. Taro, to whom the murdered persons had gone for getting paddy husked and who lived in a house adjoining the lane where the murder took place and Gurcharan Singh, a resident of a different village, who states that he saw the occur- rence when he was going towards village Dhadar on a cycle. The circumstantial evidence in the case, on which the High Court has relied, may be briefly summarised as follows -- The second appellant, Massa Singh, who was arrested on the 18th December, 1948, was wearing a pyjama stained with human blood. The third appellant, Swaran Singh, who was arrested on the 18th December, 1948, took the police on the 19th December to his haveli which was locked, and, on opening it two kheses wrappers which were stained with human blood were recovered. Swaran Singh pointed out a spot on the way to Saki- nala, where the two dead bodies were placed for a short time while they were being taken to Sakinala, and the police scrapped blood-stained earth from that spot. He also led the police to the bank of Sakinala and pointed out the trunk of the body of Darshan Singh which was lying in the nala. Lachhman Singh, who was arrested on the 28th Decem- ber, 1948, pointed out a dilapidated khola near Sakinala where 3 spears, one kirpan and a datar, all stained with human blood, were recovered. The learned Sessions Judge, who heard the evidence, seems to have been impressed by the evidence of the eye- witnesses, and he has summed up his companyclusion in these words -- This evidence was so companysistent, so reliable, and of such nature that in my opinion it is definitely established that the five accused Lachhman Singh, Katha Singh, Massa, Singh, Charan Singh and Swaran Singh are proved to have actually murdered both Darshan Singh and Achhar Singh. This fact is further proved from subsequent events as deposed by P.W. 8 Bahadur Singh and P.W. 9 Gian Singh and P.W. 11 Bhagwan Singh. These witnesses had wit- nessed the various recoveries in this case which were made at the instance of all the accused. The learned Judges of the High Court, though they re- pelled most of the criticisms levelled against the witness- es, ultimately came to the companyclusion that in all the circumstances of the case it would be proper number to rely upon the oral evidence implicating particular accused unless there is some circumstantial evidence to support it. Having laid down this standard, they examined the circum- stantial evidence against each of the accused persons and upheld the companyviction of the three appellants on the ground that the circumstantial evidence, to which reference has been made, was sufficient companyroboration of the oral evi- dence. The case of the appellants was argued at great length by Mr. Sethi, who appeared for them, and everything that companyld possibly be said in their favour was urged by him with great force and clarity. Proceeding, however, upon the principles laid down by this companyrt, circumscribing the scope of a criminal appeal after the case has been sifted by the trial companyrt and the High Court, it seems to us that the question involved in the present appeal is a short and simple one. According to our reading of the judgment of the High Court, the learned Judges, who dealt with the case, did number companydemn the oral evidence outright, but, as a matter of prudence and caution, they decided number to companyvict an accused person unless there were some circumstances to lend support to the evidence of the eye-witnesses with regard to him. It is quite clear on reading the judgment that the companyroboration which the learned judges required to satisfy themselves was number that kind of companyroboration which one requires in the case of the evidence of an approver or an accomplice, but companyroboration by some circumstances which would lend assurance to the evidence before them and satisfy them that the particular accused persons were really companycerned in the murder of the deceased. Judged by this standard, which it was open to them to prescribe, it seems to us that the case of each of the appellants clearly fell within the rule which they had laid down for their own guidance. The companyment of the learned companynsel for the appellants with regard to the blood-stained pyjama which was recovered from Massa Singh was, firstly, that it was number possible to gather from the evidence the extent of the blood stains, and secondly that it would be highly improbable that this ac- cused person would be so reckless as to companytinue to wear a blood stained pyjama after having perpetrated the crime. This criticism has been companysidered by the companyrts below, and it does number appear to us to be of such a nature as to affect the companyclusion arrived at by them. As to the recovery of blood-stained weapons at the instance of Lachhman Singh, it was urged that the entire evidence with regard to this recovery should be discarded, as the police investigation in the case was number a straightforward one but was companyducted in such a way as to raise suspicion that the police were delib- erately trying to create some evidence of recovery against each of the accused persons. It is sufficient to say that it is number the function of this companyrt to reassess evidence and an argument on a point of fact which did number prevail with the companyrts below cannot avail the appellants in this companyrt. The companyment against the discoveries made at the instance of Swaran Singh was that they are number admissible in evidence under section 27 of the Indian Evidence Act, which provides-- When any fact is deposed to as discovered in companyse- quence of information received from a person accused of an offence in the custody of a police officer, so much of such information, whether it amounts to a companyfession or number, as relates distinctly to the fact there. by discovered, may be proved, The main facts which it is necessary to state to under- stand the argument on this point, may be summed up as fol- lows - According to the prosecution, all the three accused, namely, Katba Singh, Massa Singh and Swaran Singh, were interrogated by the police on the morning of the 19th Decem- ber, 1948, and they made certain statements which were duly recorded by the police. In these statements, it was disclosed that the dead bodies were thrown in the Sakinala. Thereafter, the police party with the three accused went to Sakinala where each of them pointed out a place where dif- ferent parts of the dead bodies were discovered. The learned companynsel for the appellants cited a number of rulings in which section 27 has been companystrued to mean that it is only the information which is first given that is admissible and once a fact has been discovered in companyse- quence of information received from a person accused of an offence, it cannot be said to be re-discovered in companyse- quence of information received from another accused person. It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information first. The head companystable, who record- ed the statements of the three accused has number stated which of them gave the information first to him, but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in cross-examination about it and stated I cannot say from whom information was got first. In the circumstances, it was companytended that since it cannot be ascertained which of the accused first gave the informa- tion, the alleged discoveries cannot be proved against any of the accused persons. It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar companyfessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case Undoubtedly demands a most cautious approach. But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in section 27 of the Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the eases relied upon by the learned companynsel for the appellants have perhaps gone farther than is warranted by the language of section 27, and it may be that on a suitable occasion in future those cases may have to be reviewed. For the purpose of this appeal, however, it is sufficient to state that even if the argument put forward on behalf of the appellants. which apparently found favour with the High Court, is companyrect, the discoveries made at the instance of Swaran Singh cannot be ruled out of companysideration. It may be that several of the accused gave information to the police that the dead bodies companyld be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information companyld number lead to any discov- ery unless the accused followed it up by companyducting the police to the actual spot where parts of the two bodies were recovered. From the evidence of the head companystable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala, and it was at his instance that blood-stained earth was recovered from a place outside the village, and he also pointed out the trunk of the body of Darshan Singh. The learned judges of the High Court were satisfied, as appears from their judgment, that his was the initial pointing out and therefore the case was companyered even by the rule which, according to the companynsel for the appellants, is the rule to be applied in the present case. The learned companynsel for the appellants pointed out that the doctor who performed the post-mortem examination of the companypses, found partially digested rice in the stomach of the two deceased persons, and he urged that from this it would be inferred that the occurrence must have taken place sometime at night after the deceased persons had taken their evening meals together. This argument again raises a question of fact which the High Court has number omitted to companysider. It may however be stated that a reference to books on medical jurisprudence shows that there are many factors affecting ones digestion, and cases were cited before us in which rice was number fully digested even though companysiderable time had elapsed since the last meal was taken. There are also numberdata before us to show when the two deceased persons took their last meal, and what article of food, if any, was taken by them along with rice. The finding of the doctor therefore does number neces- sarily affect the prosecution case as to the time of occur- rence.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 12 of 1952. Appeal by special leave from the judgment and order dated 4th June, 1951, of the High Court of Judicature of Punjab at Simla Bhandari and Soni JJ. in Criminal Appeal No. 109 of 1951 arising out of Judgment and order dated 19th March 1951 of the Court of the Additional Sessions Judge, Ferozepore, in Sessions Trial No. 18 of 1951. R. Bhasin, for the appellant. Gopal Singh, for the respondent. 1952. April 30. The Judgment of the Court was delivered by BOSE J.--This is a simple case though it was argued at great length on behalf of the appellant and a number of technical objections to the validity of the trial taken. The appellant Bhagwan Singh has been companyvicted of the murder of one Buggar Singh and sentenced to death. He has also been companyvicted under section 19 f of the Indian Arms Act but we are number companycerned with that here. The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellants brother some six or seven years before the present occurrence and was sent to jail for it. When he came out of jail the police thought it prudent to take proceedings against both sides under section 107 of the Code of Criminal Procedure. This resulted in the appel- lants two brothers and his companysins being bound down, as also the deceased. This, it is said, companystituted the motive for the present crime. On the date of the occurrence, the 7th of September 1950, the prosecution state that the appellant was sitting at the shop of Jit Singh, P.W. 2, when the deceased came there about 12-15 p.m. and borrowed Rs. 5 from Jit Singh who lent him the money and entered the transaction in his ac- companynt book. When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop. This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams. He was still carrying the pistol. It was taken away from him by Jagir Singh Patwari, P.W. 4. The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh, W. 2, made the first information report at 12-a7 p.m. within 15 minutes of the occurrence. The motive is proved by Bhag Singh, P.W. 7, who has been believed and that part of the case was number challenged before us. The occurrence was witnessed by a large number of persons of whom the prosecution examined only five. Two of them turned hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neu- tral. The remaining two, Balbir Singh P.W. 5 and Jaswant Singh P.W. 6 have been believed. The only questions are 1 whether the companyviction can be rested on their testimony and 2 whether certain irregularities in the trial vitiate it. No attack was made on the testimony of Balbir Singh, W. 5, except that the two eye-witnesses who resiled in the Sessions Court companytradict him. But it was argued that the evidence of Jaswant Singh P.W. 6, is viti- ated because he was number examined by the Committing Magis- trate. It was said that makes his evidence in the Sessions Court inadmissible. This raises a question which is largely academic in this case because the reason Jaswant Singh, P.W. 6, was number examined by the Committing Magistrate is that the witness had gone away and was number available and it would have been a needless, and indeed unjustifiable, holding up of the pro- ceedings to wait till he companyld be found and summoned. It is evident that the Sessions Court has power to examine wit- nesses who were number examined before the Committing Magis- trate because of section 540 of the Criminal Procedure Code, and if the witness is treated as a prosecution witness and examined by the prosecuting companynsel instead of by the Court itself that at best would be an irregularity curable by section 537. The proper time to object to such a procedure would be at the trial itself, and as the appellant was represented in the Sessions Court by two companynsel it is too late to object to such a venial irregularity in this Court. The learned companynsel for the appellant took us elaborate- ly through the provisions of Chapter XVIII of the Criminal Procedure Code and stressed in particular section 208 1 but we need number enter into this because section 540 is a companyplete answer in this particular case. None of the cases cited goes so far as to say that numberwitness who was number produced in the companymittal proceedings can be examined at the trial and we would be unable to agree if they did. The decision most in favour of the appellants companytention is Sher Bahadur v. The Crown 1 but that does numbermore than companysider such an omission as a curable defect. Abdul Qadir J. said at pages 338 and 342 that it was companyceded before them that section 540 companyld be called in aid in such a case, and at page 339 the learned Judge dealt with the question of prejudice 1 1934 I.L.R. 15 lah.331. and companycluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case. The other learned Judge took the same view at pages 3J,7 and 348 and said- The Court can, of companyrse, always use its discretion and allow the production of further evidence. It is to be observed that the objection in that case was raised at a very early stage and before the sessions trial had companymenced also that the prosecution wished to examine numberless than eight material witnesses out of a total of sixteen which they had deliberately withheld in the companymit- tal proceedings. We make numberremarks about the companyrectness of the observations which travel beyond the question of prejudice because that is unnecessary here. It is sufficient to say that the learned Judges companyceded the power under section 510 and decided the case on the question of preju- dice. The question raised in Queen-Empress v. G.W. Hayfield 1 does number arise here because the Sessions Court did number refuse to examine Jaswant Singh, P.W. 6, and so the question whether the prosecution companyld demand his examina- tion as a matter of right never arose. The fact remains that they were permitted to do so and the defence raised numberobjection. The decision of the Allahabad High Court in S.H. Jhabwa- la v. Emperor 2 and the Full Bench of the Lahore High Court in Mussammat Niamat v. The Crown 3 are against the learned companynsels companytention. The decision of the Full Bench of the Lower Burma Chief Court in Emperor v. Channing Arnold 4 is number in point because the Committing Magistrate there refused to examine witnesses which the prosecution wanted, and indeed insisted that he should examine, and what was worse he prevented the accused from companypleting the cross-examination of the only prosecution witness which the Committing Magistrate thought fit to examine. Whatever else may be thought of 1 1892 I.L.R. 14 All. 212. 3 Z936 I.L.R. 17 Lah. 176. A.I.R. 1933 All. 690. 4 1912 13 Cr. L,.J. 877. section 208 it is evident that the accused has the right to cross-examine. at any rate, those of the witnesses who are.examined by the Committing Magistrate on behalf of the prosecution and section 547 cannot be used as a cloak for a hasty companymittal before such cross-examination is companyplete. In our opinion, the cases cited do number justify the extreme position taken up by the learned companynsel for the appellant and as section 540 is a companyplete answer in this case all we need companysider is the question of prejudice. We do number hold that the Court is bound to examine a witness called under section 540 itself as a companyrt witness and that it can never entrust the examination to the prosecuting companynsel because even if that be the proper procedure numberprejudice has been occasioned in this particular case. The irregularity here on this score, if indeed it is one, is so trivial as to be innocuous. A more important question is, was the appellant taken by surprise and was prejudice occasioned because of that ? We do number think so because Jaswant Singh was mentioned in the first information report, recorded within 15 minutes of the occurrence, as one of the eye-witnesses and he was again mentioned as an eye-witness in the calendar of the companymittal proceedings. The appellant was presumably supplied with the witnesses statement to the police, or at any rate he had the right to demand a companyy under section 162 and if he did number do so, It was presumably because neither he number his two learned companynsel wanted it. The first information report is a full one and sets out all the essentials of the prosecution case therefore, with all that information in the possession of the appellant and his companynsel it companyld be impossible for him to companytend that he did number know what this witness was to prove. Had the witness travelled beyond the statements embodied in the first information report, objection to the use of any thing number companytained in it would have been understandable, though to be effective such objection would ordinarily have to be raised at the trial, but as the witness does number do that, there can be numberobjec- tion on the score of prejudice. It is to be observed that the Explanation to section 537 requires a Court to take into companysideration the fact whether any objection on the score of irregularity companyld have been raised at an earlier stage. Now the High Court bases its decision on the evidence of these eye-witnesses and on the fact that the appellant was apprehended on the spot within a minute or two of the murder with the pistol still in his possession, and had the learned Judges stopped there, there would have been numberfoundation for the very elaborate network of technicalities upon which the learned companynsel for the appellant embarked. But Bhand- ari J. Soni J. companycurring after saying that After a careful companysideration of all the facts and circumstances of the case I entertain numberdoubt in my mind that Balbir Singh and Jaswant Singh P. Ws. have told numberhing but the truth went on to sayand that Jit Singh and Jagir Singh who made companyrect statements before the police and before the Committing Magistrate have given false evidence in the trial Court with the object of saving the appellant from the gallows. It was argued that the learned Judges have here used the evidence of these witnesses before the Committing Magis- trate as substantive evidence despite the fact that it was legally inadmissible for that purpose because the formali- ties prescribed by section 288 were number observed. Reliance was placed upon Tara Singh v. The State 1 . Even if that be so, it would make numberdifference because the evidence of Balbir Singh and Jaswant Singh, whom the learned Judges primarily believe, is sufficient to afford a basis for the companyviction and the mere fact that extraneous matter number necessary for the companyviction was also called in aid would number affect 1 1951 S.C.R. 729. the result. But as a matter of fact the foundation for this attack is based upon incorrect assumptions. We will deal with Jit Singh, P.W. 2, first. He supported the prosecution case in his examination-inchief but resiled when cross-examined. He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross-examine him. In cross-examination the witnesss statement in the Committal Court was read out to him and he was asked whether he had made such a statement and he said Yes. When that statement is read it is found to tally with his evidence in chief and with the depositions of Balbir Singh and Jaswant Singh and with the first information report. Now it was number necessary to use the former statement as substantive evi- dence at all and the fact that the learned High Court Judges placed this on a par with the statements to the police, including of companyrse the first information report, indicates that they were number using the former statements as substan- tive evidence but merely as companyroboration of what was said in chief. The distinction is a subtle one and can perhaps be best explained in the following way. A witness is called and he says in chief, I saw the accused shoot X. In cross-examination he resiles and says I did number see it at all. He is then asked but didnt you tell A, B C on the spot that you had seen it ? He replies yes, I did. We have, of set purpose, chosen as an illus- tration a statement which was number reduced to writing and which was number made either to the police or to a magistrate. Now, the former statement companyld number be used as substantive evidence. It would only be used as companyroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witnesss credit or test his veracity under section 146, Section 145 is number called into play at all in such a case. Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for companytradiction.But that position does number arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which numberfurther proof is necessary because of the admission that it was made. Of companyrse, that statement cannot be used as substantive evidence unless section 988 of the Criminal Procedure Code is called in aid. But even without section 288 a Court would be entitled to say in such a case, basing on the evidence in chief, which is substantive evidence. that what the witness said to the police, or to the Committing Magistrate, is the true version, number because those statements form substantive evidence but. because they tally with the evidence in chief which is substantive. This is only one of the many ways in which a witnesss testimony can be sifted and examined. Corroboration is as useful to test the truth of a story as any other method. In such a case, what the Court really does, though it may happen to put the matter the other way round, is to say that in its opinion the substantive evi- dence given in chief is true because it is companyroborated by an earlier statement and for that reason, namely because the version in chief is the true one the companytradictory version given in cross-examination is wrong, number because of the companytradiction embodied in the former statement but because of what was said in chief, a version which it is number safe to believe on account of the companyroboration afforded by the earlier statement. It is true the earlier statement companyld also have been used for companytradicting the version given in crossexamination and in- that event, if it is in writing, the limitations imposed by section 145 of the Evidence Act would have to be observed, but the prosecution is number bound to do that. It has a choice. It can, if it so chooses, build up the version given in chief in any way it pleases and, having done that, use the version in chief to destroy the version in cross-examination. But in the case before us there is numberneed to resort to these subtleties because here the depositions were brought on record and companyld be used as substantive evidence even if the formalities prescribed by section 145 of the Evidence Act were number observed for the very simple reason that there was numberneed in this cause to resort to section 145. As we have said, the prosecution had a choice here because of the two companyflicting versions given in chief and in crossexami- nation. It was entitled to use the former statement either to companytradict what was said in crossexamination or to companyroborate what was said in chief. In either event, sec- tion 288 of the Criminal Procedure Code companyld be used to make the former statement substantive evidence because what the section says is subject to the provisions of the Indian Evidence Act, and number subject to any particular section in it. Section 157 is as much a provision of the Indian Evi- dence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288. Tara Singh v. The State 1 is to be distinguished because there, there were numbertwo versions in the companyrse of the same testimony. The witness in question was hostile from the start in the Sessions Court and the whole purpose of resort- ing to section 288 was to companytradict what he said there and numberquestion of companyroboration arose. The prosecution had numberchoice there, as it was here, of using the former statement either to companytradict or to companyroborate. We turn next to Jagir Singh, P.W. 4. In his case there was numberchoice. He was hostile from the start and in his ease our observations in the ruling just referred to apply in full. But on an examination of his evidence we find that the formalities prescribed by section 145 were companyplied with. His cross-examination, in companytrast to Jit Singhs where such a procedure was number necessary. shows that every circumstance intended to be used as companytradiction was put to him point by point and passage by passage. That was 1 1951 S.C.R. 729 at 743. companyceded, but it was argued that this was done without drawing the witnesss attention to the parts of the writing which were to be used for the purposes of companytradiction. We are by numbermeans satisfied that is the ease because at least one of the passages is reproduced in inverted companymas and so must have been read out from the statement. But that apart. Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted that he had made it in the Committing Court. Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for companytradiction--that may, in a given case, companyfuse a witness and number be a fair method of affording him an opportunity to explain-but in the present case the previous statement is a short one and the witness was questioned about every materi- al passage in it point by point. Accordingly, the procedure adopted here was in substantial companypliance with what sec- tion 145 requires. There can be numberhard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the companytradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that was done here. The matter is one of substance and number of mere form. Jit Singh, P.W. 2, said that the statement made by him in the companymittal proceedings was number read over to him and so did Jagir Singh, P.W. 4. It was argued that in the absence of an enquiry that must be accepted as true, and if true, the evidence becomes inadmissible. Now the certificate of the Committing Magistrate en- dorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be companyrect. The Court is bound to accept this as companyrect under section 80 of the Indian Evidence Act until it is proved to be untrue. The burden is on the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the Court is number prepared to believe the matter ends there. The duty of displacing the presumption lies on the person who questions it. The Court is of companyrse bound to companysider such evidence as is adduced but it is number bound to believe such evidence number is there any duty whatever on the Court to companyduct an enquiry on its own. There is numberhing in this point. But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the truth of his certificate and we endorse the re- marks we made in Kashmera Singh v. The State of Madhya Pradesh 1 based on the decision of the Privy Council in Nazir Ahmad v. King Emperor 2 regarding the undesirability of any such practice. But even if the fact be true that the deposition was number read over, that would only amount to a curable irregularity and, as the Privy Council observed in Abdul Rahman v. King Emperor 3 , in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, there is numberpoint in the objection. The object of the reading over prescribed by section 360 of the Code of Criminal Procedure is number to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said. Therefore, before prejudice can be substantiated on this score, it must be disclosed by affidavit exactly where the inaccuracy lies. The next and last objection is on similar lines. Jit Singh, P.W. 2., and Jagir Singh, P.W. 4, said that their statements before the Committing Magistrate were made under the threats and duress of the police. It was argued that that should number have been rejected without further enquiry, and a ruling in which a further enquiry was companysidered necessary was cited. Here 1 1952 S.C.R. 526. A.I.R. 1936 P.C. 253 at 258. A.I.R 1927 P.C. 44 at 45-47. again, it is numberpart of a Courts duty to enter upon a roving enquiry in the middle of a trial on matters which are companylateral to the main issue. The burden is on the person making these allegations to substantiate them and if he chooses to rely on evidence.which does number satisfy the Court he must suffer the same fate as every other person who is unable to discharge an onus which the law places upon him. It was also argued that there was numberproper companypliance with the provisions. of section 342 of the Criminal Proce- dure Code. We are satisfied that there was substantial companypliance in this case. The facts were simple and few and the crucial matters were brought to the attention of the appellant. In any event, the learned companynsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which, according to companynsel, ought to have been put to the appellant. We pressed him several times to disclose that but he was unable to do so. As we said at the outset, the case is a very simple one in which a man was caught red-handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 64 of 1951. On appeal from the Judgment and Decree dated the 16th April. 1948, of the High Court of Judicature at Allahabad Malik C.J. and Prasad J. in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February, 1943, Judgment and Decree dated the 22nd February, 1943 of the Court of the Additional Civil Judge Benares, in Original Suit No. 33 of 1938. Gopi Nath Kunzru K. B, Asthana, with him the appel- lants. Krishna Shankar for the respondents. 1952. April 25. The judgment of the Court was delivered by DAs J. - This appeal arises out of an application by five out of ten judgment-debtors made under section 8 of the P. Debt Redemption Act No. of 1940 for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31, 1939, by the Additional Civil Judge, Banaras, in O.S. No. 33 of 1938. The facts materi- al for the purposes of this appeal may number be briefly stated. By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram aud Lakshman, all sons of Pandit Raja Ram Pant Sess, mortgaged cer-tain immovable properties in favour of Damodarji, son of Kamta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs. 8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar- terly rests. On July 28, 1931, the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs. 3,000 with interest thereon at twelve annas per cent per mensem with quarterly rests. It is recited in the deed that the sum of Rs. 8,000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath. In 1935 the U.P. Agriculturists Relief Act No. XXVII of 1934 came into force. On May 1938, Girjadharji, son of Damodarji, and Murlidharji, minor son of Gangadharji who was another son of Damodarji, filed suit No. 33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons for the recovery Rs. 9,477-2-0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931. It appears from the judgment of the High Court underappeal that in their written statement the mortgagors claimed the benefit of the U.P. Agriculturists Relief Act No. XXVII of 1934 . The plaintiffs companytended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income-tax the mortgagors were number agriculturists as defined in section 2 2 of that Act and, therefore, companyld number claim the benefit companyferred on the agriculturists by that Act. The trial Court, by its judgment dated March 31, 1939, held that though Sita Ram was assessed to incometax for the year 1931-32, the amount of such in- companyetax did number exceed the amount of cess payable on the land held by him and companysequently the second proviso to section 2 2 did number apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agricul- turists all of them were entitled to the benefits under the Act. Accordingly, after scaling down the interest, a sum of Rs. 9,497-14-1 was declared to be due for principal, interest and companyts up to March 31, 1939, and a preliminary mortgage decree for sale was passed in that suit. In 1940 the U.P. Debt Redemption Act No. XIII of 1940 came into force. On April 11, 1942, five of the judgment- debtors made an application under section 8 of this Act before the Additional Civil Judge, Banaras, who passed the decree. In the petition it was stated that the debt was actually advanced in 1922, that the petitioners were agri- culturists within the meaning of Act XIII of 1940, that the decreeholders can only get interest at the reduced rate of Rs. 4-8-0 per cent. per annum from 1922, and that after adjustment of accounts numberhing will be found ,outstanding against the petitioners. The prayer was that an account of the money- lending business be made from the beginning of 1922 and the decree in suit No. 33 of 1938 be modified by reducing the amount due thereunder. The decree-holders filed a petition of objection asserting, inter alia, that the petitioners were by numbermeans agriculturists, that they and the respond- ents Nos. 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28, 1931, that Sita Ram used to pay income-tax at the date of the mortgage in suit and paid even at the time of the applica- tion, that all the members of the petitioners family were number agriculturists within the meaning of the Act and were, therefore, number entitled to the benefits thereof, that the debt advanced under the mortgage deed of July 28, 1931, was number a loan as defined in the Act and, therefore, the Act did number apply. It will be numbericed that although the judg- ment-debtors-applicants specifically prayed for the accounts being taken from 1922, when the loan was said to have been actually advanced, the decree-holders, in their petition of objection, did number companytest that position. At the hearing of the application before the Additional Civil Judge, the learned pleader for the decree-holders admitted that with the exception of Sita Ram the remaining judgment-debtors were agriculturists under Act No. XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were number entitled to the benefit of the Act. Two witnesses, namely Suraj Mani Tripathi and Sita Ram, were examined on behalf of the judgment-debtors applicants. Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras, that in 1930 his salary was Rs. 90 per month, that since February 1932 to 1936 he paid incometax and that after that he paid numberin- companye-tax. His evidence was companyroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042. Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs. 90 per month throughout 1930, that in 1930 numberincome-tax was levied, that in 1931 also his salary was Rs. 90 per month and that numberincome-tax was deducted in 1931 too, that the first deduction of in- companye-tax from his salary was made in February 1932. No rebutting evidence was adduced by the decree-holders on the hearing of the application under section 8 of the Act of 1940. The income-tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru- ary 9, 1933, and shows that on that date Sita Ram was as- sessed at Rs. 1-14-0 as income-tax on Rs. 180 for the year 1931-32. By his judgment delivered on February 22, 1943, the Additional Civil Judge found that Sita Ram was number assessed to income-tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and, there- fore, held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940. He then went on to discuss the question whether the account should be reopened from June 2, 1922, when the earlier mortgage was executed or from July 28, 1931, when the mort- gage in suit was executed. The decree-holders who did number adduce any evidence on the hearing of the application evi- dently relied on the evidence adduced in suit No. 33 of 1938. After discussing that evidence the learned Judge came to the companyclusion that so far as the judgment-debtors were companycerned the mortgagees in the two mortgages were one and the same. He adversely companymented on the number-production of the books of account by the decree-holders. Re-opening the accounts from June 2, 1922, the learned Judge companycluded that the whole of the principal and interest payable accord- ing to the Act had been fully discharged and that numberhing remained due by the judgmentdebtors under the decree in suit No. 33 of 1938. He accordingly declared that the decree stood discharged in full and directed a numbere to that effect to be made in the Register of Suits. The decree-holders having appealed to the High Court, a Division Bench B. Mallik, C.J. andBind Basni Prasad J. by its judgment delivered on April 16, 1948, held that the question whether Sita Ram was or was number an agriculturist on July 28, 1931, was number material as it was number denied that all the judgment, debtors were agriculturists on the date of suit. Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount companyld be recovered only from the mortgaged property and number personally from the mortgagors and accord- ingly the proviso to the definition of loan in section 2 9 of the Act had numberapplication and it was, therefore, number necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment-debtors were admittedly agriculturists at the date of the suit, the case was fully companyered by the Full Bench decision of that High Court in Ketki Kunwar v. Ram Saroop 1 . The High Court, therefore, dismissed the appeal on this point alone. The question whether the account should be reopened from 1922 or from 1931 was number raised by the decree-holders at all. he decree-holders have number companye up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure. Sri G.N. Kunzru appearing in support of this appeal has strongly questioned the companyrectness of the Full Bench deci- sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 2 9 of the Act. As we think this appeal can be decided on a simpler ground we do number companysider it necessary, on this occasion, to express any opinion on either of these questions which are by numbermeans free from doubt. I.L.R. 1943 All. 35 A.I.R. 1942 All. 390 1942 A. J. 578. The present application has been made under section 8 of the U. P. Debt Redemption Act, 1940, subsection 1 of which, omitting the proviso, runs as follows-- Notwithstanding the provisions of any decree, or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the companymencement of this Act, may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it, and on receipt of such application the Court shall, after numberice to the opposite party, calculate the amount due from the appli- cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly. It is clear from the wording of the sub-section that there are three pre-requisites for exercise of the right companyferred by it, namely, 1 that the application must be by an agriculturist and 2 that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and 3 that that decree was passed before the companymencement of this Act. That the judgment-debtors appli- cants were agriculturists at the date when suit No. 33 of 1938 was filed and also in 1942 when the application under section 8 was made is companyceded by Sri G.N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the companymencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under section 2 6 of the Act the phrase decree to which this Act applies means a decree passed before or after the companymencement of this Act in a suit to which this Act applies. Section 2 17 defines the phrase suit to which this Act applies as meaning any suit or proceeding relating to a loan. The question then, arises was the decree under which the judgment-debtors applicants are liable passed in a suit relating to a loan ? Loan is thus defined in sec- tion 2 9 Loan means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does number include an advance the liability- for the repayment of which has, by a companytract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a companyoperative society or by a schedule bank Provided that an advance recoverable from an agricul- turist or from an agriculturist and other persons jointly shall number be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly. In order to be a loan the advance must be recoverable from an agriculturist. The word recoverable seems, prima facie, to indicate that the crucial point of time is when the advance becomes recover-able, i.e., when the amount advanced becomes or falls due. Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937. Sri Kunzru companycedes that Sita Ram was number as- sessed to income-tax.since 1936. Assuming, but without deciding, that the proviso to section 2 9 applies and that in order to be a loan it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in section 2 3 of the Act the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist by reason of clause b of the provi- so to section 2 3 , that is to say, by reason of his being assessed to income-tax on July 28, 1931. According to the evidence of Surai Mani Tripathi and Sita Ram income-tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9, 1933. Therefore, Sita Ram was number assessed to incometax on July 28. 1931. It is number disputed that the taxable minimum was reduced from Rs. 2,000 perannum to Rs. 1,000 per annum by the Indian Finance Supplementary Extending Act, 1931, which was enacted on November 26, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram Whose salary was below Rs. 2,000 per annum was number only number actually assessed to in- companye-tax but was number even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduc- tion of incometax out of the salary was in the month of February 1932 and the income-tax assessment form for 1931-32 Ex.S shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year. The position therefore is that Sita Ram was number assessed to income-tax at the date of the advance in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under section 8 in 1942. It companysequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by section 2 9 . The Courts below therefore, were right in their companyclusion that the judgment-debtors applicants were entitled to the benefit of the Act. Sri G.N. Kunzru finally submitted that in any case the accounts companyld number be taken from 1922, for the mortgagees under the two mortgages were different. We have already pointed out that this point was number specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were companycerned the mortgagees were the same in both the mortgages.

Case appeal was rejected by the Supreme Court

ORIGINAL JURIDICTIN Petition No. 76 of 1952. Application under-Art. 32 of the Constitution of India for a writ in the nature of mandamus. J. Umrigar for the petitioner. N. Joshi for the respondent. 1952. May 7. The Judgment of the Court was delivered by MUKHERJEA J.--This is an application under article 32 of the Constitution, presented by one Gurubachan Singh, praying for a writ, in the nature of mandamus restraining the respondents as well as their subordinates and successors from enforcing an externment order served on the petitioner under section 27 1 of the City of Bombay Police Act 1902 . The petitioner is an Indian citizen and is said to be residing with his father at a place called Gogri Niwas, Vincent Road, Dadar, his father having a business in elec- trical goods in the city of Bombay On the 23rd July, 1951, the petitioner was served with an order purporting to have been made by the Commissioner of Police, Bombay, under section 27 1 of the City of Bombay Police Act, directing him to remove himself from Greater Bombay and go to his native place at Amritsar in East Punjab. It was mentioned in the order that the petitioner was to companyply with its directions within two days from the date it was made, and that he was to proceed to Amritsar by rail. On July 25, 1951, the petitioner made an application to the Commissioner of Police and prayed for an extension of the time within which he was to remove himself from Greater Bombay, and on this application the Commissioner of Police gave him time till the 30th of July next. On 30th July, 1951, the petitioner himself wrote a letter to the Commissioner of Police stating that he did number desire to go to Amritsar and prayed that he might be allowed to stay at Kalyan which is outside Greater Bombay but within the Slate of Bombay and that he might be given a Railway ticket from Dadar to that place. It appears that acting on this letter the police took the petitioner to Kalyan on the evening of 30th July, 1951, and left him there. After that, the petitioner companymenced proceedings in the Bombay High Court first in its original side under the Letters Patent and then in the Appellate Criminal Bench of the Court under articles 226 and 228 of the Constitution, companyplaining of the externment order mentioned above and praying for a writ of certiorari to have it quashed. Both these applications were dismissed and the petitioner has number companye up to this companyrt under article 32 of the Constitution on the allegation that his fundamental rights under clauses d and e of article 19 1 of the Constitution have been infringed by the extern- ment order. Mr. Umrigar appearing in support of the petition has argued before us, in the first place that the order of externment is altogether void as it is number in companyformity with the provisions of section 27 1 of the City of Bombay Police Act. His second companytention is that the provisions of section 27 1 of the City of Bombay Police Act being in companyflict with the fundamental rights enunciated in clauses d and e of article 19 1 of the Constitution are void under article 13 1 of the Constitution. The last companyten- tion urged, though somewhat faintly, is. that the provision of section 27 1 mentioned above is discriminatory in its character and offends against article 14 of the Constitu- tion. As regards the first point, it is number disputed on behalf of the respondents that the order of externment, as was passed by the Commissioner of Police on 23-7-1951, is number in strict companyformity with the provision of section 27 1 of the City of Bombay Police Act The order directed the petitioner to remove himself out of Greater Bombay but at the same time mentioned Amritsar as the place where he was to go Section 27 1 of the City of Bombay Police Act provides as follows-- Whenever it shall appear to the Commissioner of Police, a that the movements or acts of any person in the Greater Bombay are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the companymission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of the Commissioner witnesses are number willing to companye forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property The Commissioner of Police may, by an order in writing duly served on himdirect such personto remove himself outside the State or to such place within the State and by such route and within such time as the Commissioner of Police shall prescribe and number to enter the State or as the case may be the Greater Bombay. It seems clear from this provision that there are two kinds of externment orders companytemplated by the subsection one, where externment is directed from the Greater Bombay and the other where the externee is to remove himself from the State of Bombay. In the first class of cases the order has got to specify the place where the externee is to remove himself to and it must also indicate the route by which he has to reach that place. On the other hand, when the externment is from the State of Bombay, the externee can remain anywhere he likes outside the State and numberplace of residence can or need be mentioned. In the case before us the externment order started by directing the petitioner to remove himself only out of Greater Bombay. It was incumbent in such a case for the authorities to specify the place where the externee was to stay. Actually a place, namely Amritsar, was specified in the order, but as it is number within the State of Bombay, it was manifestly beyond the jurisdiction of the Commissioner of Po1ice to name such place at all. It is argued on behalf of the petitioner, number without some force, that the omission to specify a place within the State where the petitioner was to stay vitiates the order. On the other hand the order read as a whole might indicate that the intention of the Commissioner of Police was to extern the petitioner outside the State of Bombay and this is apparent from the fact that he was directed to proceed to Amritsar which is situated in another State. It is numberdoubt true that the Commissioner of Police, Bombay, had numberauthority to fix any place outside the State as the place of residence of the externee and that direction was ineffective but that direction certainly has a bearing on the question of the companystruction of the order, for it indicates that the real intention of the order was to direct the externee to remove himself number only from Greater Bombay but from the State of Bombay itself. If that was the intention, numberplace of residence need have been indicated at all. We need number, however, labour this aspect of the matter any further, for we are of the opinion that whatever irregu- larity there might have been in the original order, the subsequent companyduct of the petitioner which had the sanction and approval of the Commissioner of Police removed the defect, if any. As has been stated already, on the 30th July, 1951, the petitioner himself by a letter written to the Commis- sioner of Police sought his permission to stay at Kalyan which is within the State of Bombay. His request was acced- ed to and the Police actually took him to Kalyan on the evening of the 30th. We think that, in these circumstances, the order made on the 23rd July, 1951, might be companystrued to be an order of externment from Greater Bombay and though there was a mistake regarding the place where the externee was to remove himself to, the mistake was rectified by the petitioner choosing Kalyan as the place of residence and that choice being accepted and given effect to by the Police Department. We do number think that in these circumstances there is really any substance in the first point raised by Mr. Umrigar. The second point urged by the learned companynsel raises the question as to whether section 27 1 of the City of Bombay Police Act has imposed restrictions upon the funda- mental right of a citizen which is guaranteed under article 19 1 d of the Constitution and being in companyflict with this fundamental right is void and inoperative under article 18 1 of the Constitution. There can be numberdoubt that the provision of section 27 1 of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens. The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a citizen, companye within the purview of clause 5 of article 19 of the Constitution or in other words whether the restrictions are reasonable ? It is perfectly true that the determination of the question as to whether the restric- tions imposed by a legislative enactment upon the fundamen- tal rights of a citizen enunciated in article 19 1 d of the Constitution are reasonable or number within the meaning of clause 5 of the article would depend as much upon the procedural part of the law as upon its substantive part and the companyrt has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed. The maximum dura- tion of the externment order made under section 27 1 of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the pro- hibited area even before the expiration of that period. Having regard to the class of cases to which this sub-sec- tion applies and t. he menace which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable. The Commissioner of Police can in a proper case cancel the externment order any moment he likes, if, in his opinion, the return of the externee to the area from which he was removed ceases to be attended with any danger to the companymunity. As regards the procedure to be followed in such cases, section 27 4 of the Act lays down that before an order of externment is passed against any person, the Commissioner of Police or any officer authorized by him shall inform such person, in writing, of the general nature of the material allegations against him and give him a reasonable opportunity of ex- plaining these allegations. He is permitted to appear through an Advocate, or an Attorney and can file a written statement and examine witnesses for the purpose of clearing his character. The only point which Mr. Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is number allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started. In our opinion this by itself would number make the procedure unreasonable having regard to the avowed intention of the legislature in making the enact- ment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where numberwitnesses for fear of violence to their person or property are willing to depose publicly against certain bad charac- ters whose presence in certain areas companystitutes a menace to the safety of the public residing therein. This object would be wholly defeated if a right to companyfront or cross- examine these witnesses was given to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act.

Case appeal was rejected by the Supreme Court

APPELLATE JURISDICTION Case No. 273 of 1951. Appeal under Arts. 132 1 and 134 1 c of the Constitution of India from the Judgment and Order dated I3th October, 1950, of the High Court of Judicature at Patna Shearer, Ramaswami and Sarjoo Prosad JJ. in Miscellaneous Judicial Case No. 220 of 1949. K. Mitra K. Dayal, with him , for the appellant. Basant Chandra Ghosh and Arun Chandra Mitra for the respondent. 1952. May 26. The Court delivered judgment as follows-- MAHAJAN J.--This appeal has been preferred by the State of Bihar against the judgment of a Special Bench of the High Court of Judicature at Patna allowing the application of the respondent under section 23 of the Indian Press Emergency Powers Act, XXIII of 1931. It appears that the petition was argued by both the sides as it was one made under article 926 of the Constitution. The respondent was the keeper at all relevant times of the Bharati Press at Purulia, A pamphlet under the heading Sangram was printed at the said press and is alleged to have been circulated in the town of Purulia in the district of Manbhum. The Government of Bihar companysidered that the pamphlet companytained objectionable matter of the nature described under section 4 1 of the Indian Press Emergency Powers Act and required the press to furnish security in the sum of Rs. 2,000, under section 3 3 of the Act by the 19th September, 1949. On the 26th September, 1949, the respondent applied to the High Court under section 23 for setting aside the above order. This application was allowed by the majority of the Judges companystituting the Bench. Shearer J. was of the view that the application should be dismissed. Several objections were raised to the validity of the order passed by the Bihar Government but it is unnecessary to mention all of them. The two points which were seriously pressed before the High Court were that the leaflet did number companytain any words or signs or visible representation of the nature described in section 4 1 of the Act, and that the provisions of section 4 1 of the Act were inconsistent with article 19 1 of the Constitution and as such void under article 13. The High Court reached the companyclusion that the pamphlet did companye within the mischief of the Act. Sarjoo Prosad J., with whom Ramaswami J. companycurred, on a companystruction of the decisions of this Court in Romesh Thapar The State of Madras 1 , and Brij Bhushan V. The State of Delhi 2 , found, though with some reluctance, that section 4 1 a of the Act was repugnant to the Constitution and therefore void. Mr. Justice Shearer, however, held that the pamphlet was a seditious libel and that there was numberhing in the two decisions of the Supreme Court referred to above which companypelled the companyrt to hold the provisions of section 4 1 a of the Act to be void. In my opinion, Shearer J. was right in the view that there is numberhing in the two decisions of this Court which bears directly or indirectly on the point at issue in the present case and that both Sarjoo Prosad 1 1950 S.C.R.594. 2 1950 S.C.R. 605. and Ramaswami JJ. were in error in holding that these deci- sions were companyclusive on the question of the invalidity of clauses a and b of section 4 1 of the Act. Towards the companycluding part of his judgment Sarjoo Prosad J. ob- served as follows-- I am companypelled to observe that from the above discus- sions of the Supreme Court judgments, it follows logically that if a person were to go on inciting murder or other companynisable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression. Any legislation which seeks or would seek to curb this right of the person companycerned would number be saved under article 19 2 of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel number slander number defamation number companytempt of companyrt number any matter which of- fends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity companytemplate such an anomalous situation but the companyclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound. I, there- fore, wish that my decision on the point would sooner than ever companye to be tested by the Supreme Court itself and the position reexamined in the light of the anomalous situation pointed out above. It seems to me that the words used in the Constitution Act should be assigned a wide and liberal companynotation even though they occur in a clause which pro- vides an exception to the fundamental right vouchsafed under article 19 1 a of the Constitution Act. These observations--I speak with great respect-disclose a companyplete lack of understanding of the precise scope of the two decisions of this Court referred to above. Section 3 3 of the Act under which the numberice was issued in the present case enacts as follows Whenever it appears to the Provincial Government that any printing press is used for the purpose printing or publishing any newspaper, book or other document companytaining any words, signs or visible representation of the nature described in section 4,sub-section 1 , the Provin- cial Government may, by numberice in writing to the keeper of the press order the keeper to deposit with the Magis- trate security Clause a of section 4 1 deals with words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the companymission of any offence of murder or any companynizable of- fence involving violence. It is plain that speeches or expressions on the part of an individual which incite to or encourage the companymission of violent crimes, such as murder, cannot but be matters which would undermine the security of the State and companye within the ambit of a law sanctioned by article. 19 2 of the Constitution. I cannot help observing that the decisions of this Court in Romesh Thapars case 1 , and in Brij Bhushans case 2 have been more than once misapplied and misunderstood and have been companystrued as laying down the wide proposition that restrictions of the nature imposed by section 4 1 a of the Indian Press Emergency Powers Act or of similar character are outside the scope of article 19 2 of the Constitution inasmuch as they are companyceived generally in the interests of public order. Sarjoo Prosad J. also seems to have fallen into the same error. The question that arose in Romesh Thapars case 1 was whether the impugned Act Madras Maintenance Public Order Act, XXIII of 1949 in so far as it purported by section 9 1-A to authorise the Provincial Government for the purpose of securing the public safety and the mainte- nance of public order, to prohibit or regulate the entry.into or the circulation, sale or distribution in the Province of Madras or any part thereof any document or class of documents was a law relating to any matter which under- mined the security of or tended to overthrow the State, and it was observed that whatever ends the impugned Act may have been intended to subserve and whatever 1 1950 s.C.R. 594. 2 1950 S.C.R. 605. aims its framers may have had in view, its application and scope companyld number, in the absence of delimiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State, number was there any guarantee that those authorized to exercise the powers under the Act would in using them discriminate between those who act prejudical- ly to the security of the State and those who do number. Sec- tion 4 1 a of the impugned Act, however, is restricted to aggravated forms of prejudicial activity. It deals specifi- cally with incitement to violent crimes and does number deal with acts that generally companycern themselves with the mainte- nance of public order. That being so, the decision in Romesh Thalbars case 1 given on the companystitutionality of section 9 1-A of the Madras Maintenance of Public Order Act has numberrelevancy for deciding the companystitutionality of the provi- sions of section 4 1 a of the Indian Press Emergency Powers Act. Towards the companycluding portion in Romesh Tha- pars judgment 1 it was observed as follows -- We are therefore of opinion that unless a law restrict- ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause 2 of article although the restrictions which it seeks to impose may have been companyceived generally in the interests of public order. It follows that section 9 I-A which authorizes imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorized restric- tions under clause 2 , and is therefore void and unconsti- tutional. The restrictions imposed by section 4 1 a of the Indian Press Emergency Powers Act on freedom of speech and expression are solely directed against the undermining of the security of the State or the overthrow of it and are within the ambit of article 19 2 1 1950 S.C.R. 5 94. of the Constitution. The deduction that a person would be free to incite to murder or other companynizable offence through the press with impunity drawn from our decision in Romesh Thapars case 1 companyld easily have been avoided as it was avoided by Shearer J. who in very emphatic terms said as follows- I have read and re-read the judgments of the Supreme Court, and I can find numberhing in them myself which bear directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is numberlonger permissible. Be that as it may, the matter is number companycluded by the language of the amended article 19 2 made by the Constitu- tion First Amendment Act which is retrospective in opera- tion, and the decision of the High Court on this point cannot be sustained. Basant Chander Ghosh companytended that the amendment made in article 19 2 of the Constitution with retrospective operation was repugnant to article 20 of the Constitution inasmuch as it declared a certain act an offence which was number an offence at the time when the act was companymitted. This companytention is untenable. The respondent is alleged to have violated the provisions of section 4 1 a of the Indian Press Emergency Powers Act which was a law in force in the year 1949 when the offending pamphlet was published. She has number been companyvicted of any offence so far and is number being again companyvicted for the same by reason of the amend- ment in article 19 2 . Article 20 has numberapplication whatev- er to the present case. Article 19 2 empowers a legislature to make laws imposing reasonable restrictions on the funda- mental rights companyferred under article 19 1 of the Constitu- tion. It does number declare any acts which were number offences before as offences with retrospective effect. Moreover, in the year 1949 the respondent was number possessed of any funda- mental right which companyld be said to have been companytravened by the amendment. Though, as I have said above, the High Court is in error in the finding that the provisions of section ,4 1 a 1 1950 S.C.R594, of the Indian Press Emergency Powers Act are repugnant to the Constitution, its judgment has to be maintained as it is also in error in holding that the pamphlet in question fell within the mischief of section4 1 a of the Indian Press Emergency Powers Act. The document is written in high-flown Bengali language and companytains a good deal of demagogic claptrap with some pretence to poetic flourish. It enunciates certain abstract propositions in somewhat involved language and it cannot be followed except with companysiderable effort. The High Court held that the document offended against the provisions of section 4 1 a inasmuch as certain parts of it companytemplate a bloody and violent revolution and that the central theme that runs through the whole gamut of the offending pamphlet is that the author is anxious to bring about a bloody revo- lution and change companypletely the present order of things by causing a total annihilation of the persons and the policies of those who according to him are in the opposite camp. Particular reference was made to the following passages in the writing which in the opinion of the learned Judges support that companyclusion. The first of these passages is in these words -- Oh thou foolish oppressor, you want to cause abject terror in me with your red eyes and full throated voice--do that, I am number afraid My pro-test is against parochial national politics.Another passage reads thus - Death is my secret love poison is my drink the flames of fire are my sweet breeze the wailing of a hundred be- reaved childless mothers is just a tune in my flute the weeping of widows at their widowhood is just a rhythm of my song. The next passage referred to is in these terms -- I am the cremation ground. I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. Plague or famine is my great joy I am thirsty, I want blood, I want revolution,. I want faith in the struggle. Tear, tear the chain of wrongs Break thou the proud head of the oppressor. Reference was also made to a passage in which the writer desires that his cries should be heard by people far and near, that his call should be hearkened far far away across the hills, the jungles, across the rivers and rivulets and all those who hear should companye forward to join the ranks in destroying the oppressor and in which he claims that he is the messenger of death, that his revolutionary song signals the door of each of the listeners and signals to them to companye out if they have life, if they have health, if they have companyrage to companye and dash to pieces those who companymit oppression on the mother, and he says that with the blood of those followers let the revolution grow. It winds up with an invocation to the readers in these terms -- If you are true, if you are the gift of God, if you are number a bastard, then companye forward with a fearless heart to struggle against the oppressors improper companyduct, oppres- sion and injustice. We should number tolerate wrongful oppres- sion. Oh, thou the people with the burning pain of thine heart burn the heart of the oppressive, high-handed oppres- sor. Let all wrongs, all high-handedness, all oppressions, all tyrannies be burnt in the flame. It seems to me that the learned Judges of the High Court took this writing too seriously. It did number deserve that companysideration. It is some kind of patch-up work, with numberconsistency or companyesion between its different parts. Por- tions of it are unmeaning numbersense and in other parts it talks of revolution in the abstract. There is numberappeal to anybody in particular or for any known or specific cause. No mention is made of any specific kind of oppression or injus- tice that is intended to be remedied. The desire is. to change the face of the earth by ending all oppression, tyranny and injustice. Their is numberevidence whatsoever for companynecting this pamphlet with any agitation or movement at the time it was written in that locality. I have read the writing several times and I think that Mr. Ghosh is right when he says that the pamphlet companytains merely empty slogans, carrying numberparticular meaning except some amount of figurative expression or language borrowed at random from various authors with a touch of poetic flourish about it. Writings of this characters at the present moment and in the present background of our companyntry neither excite number have the tendency to excite any person from among the class which is likely to read a pamphlet of this nature. They will necessarily be educated people. Such writings leave their readers companyd and numberody takes them seriously. People laugh and scoff at such stuff as they have become too familiar with it and such writings have lost all sting. Any number descript person who promises to change the order of things by bloody revolution and assumes the role of a new Messiah is merely the laughing-stock of his readers and creates an adverse impression against himself, rather than succeed in stirring up any excitement in the minds of the readers. Rhetoric of this kind might in companyceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact. In the absence of any such proof we must assume that the pamphlet would be read by educated persons in the quietness of their homes or in other places where the atmosphere is numbermal. I would therefore hold, in the words of my brother Bose in Bhagwati Charan Shukla v. Government of C.P. Berar 1 , that though the pamphlet in question uses extravagant language and there is in it the usual crude emotional appeal which is the stock-in-trade of the demagogue as well as a blundering and ineffective attempt to ape the poets, that is all, and there is numberhing more in it. The time is long past when writings of this kind can in numbermal circumstances excite people to companymit crimes of violence or murder or tend to excite any- body to companymit acts of violence. Again the language employed is full of mysticism and I.L.R. 1964 Nag. 865 cannot be easily understood and it creates numberimpression of any kind on any person. In order to determine whether a particular document falls within the ambit section 4 1 , the writing has to be companysidered as a whole and in a fair and free and liberal spirit, number dwelling too much upon isolated passages or upon a strong word here and there, and an endeavour should be made to gather the general effect which the whole companyposi- tion would have on the mind of the public. Expressions which are the stock-in-trade of political demagogues and have numbertendency to excite anybody, and exaggerations in language cannot lead to that result. The learned Government Advocate placed reliance on the decision of Harries C.J. in Badri Narain v. Chief Secretary, Bihar Govermnent 2 . The learned Chief Justice therein held that in order to show that cer- tain words fall under section 4 1 a it is number necessary to show that the words tend to incite or to encourage the companymission of a particular offence or offences and that it is sufficient if they tend to incite to or to encourage the companymission of companynizable offences of violence in general. In that case, a poem entitled Labourers, the mainstayof the world began by emphasising that labourers are the mainstay of the present world and then proceeded to describe their unfortunate and pitiful lot. In a subsequent portion the author stated that though speechless today, when organized, the labourers will be as powerful as millions and this portion of the poem ended with these words Why are you helplessly tolerating the exploitation of your masters. The remaining lines were as follows- Labourers, raise number the cry of revolution. The heavens will tremble, the Universe will shake and the flames of revolution will burst forth from land and water. You who have been the object of exploitation, number dance the fearful dance of destruction on this earth truly, labourers, only total destruction will A.I.R. 1941 Pat.132 create a new world order and that will bring happiness to the whole world. It is quite clear that here an appeal was made to la- bourers inciting and encouraging them to companymit acts of violence. The words used certainly tended to achieve that result. They were numberempty slogans or abstract propositions. It had one companysistent and companyerent purpose, i.e., to excite labourers and to bring them into action. Any observation made about this writing can have numberapt application for the determination of the present case. The learned Chief Justice in the companycluding part of the judgment very pertinently pointed out that a companymonsense interpretation must be given to the document companyplained of, the question to be answered always being, what impression will the documents or words give to a man of ordinary companymonsense. My answer to this query in the present case is that the document read at first sight is number intelligible unless it is explained to that man of ordinary companymonsense by a learned person and hence it can by itself create numberimpression of any kind on such a person. After the writing is explained to such a man, he will merely laugh at it and throw it in the waste paper basket without taking it seriously. He will refuse to believe that a person of this kind can create a new world order by appealing to a bloody revolution. As I pointed out in my judgment in Harkrishan Singh v. Emperor 1 , the use of such words as appear in this document creates numberimpression on the mind of any reasonable reader. That case dealt with clause d of section 4 1 , but the principle underlying it also applies to the companystruction of writings which are alleged to fall under section 4 1 a . I do number mean to suggest or to lay down as a general propo- sition that some of the words used in the pamphlet in ques- tion in the companytext of any other writing would number fall within the mischief of section 4 1 a . Certain parts of the pamphlet, if read as isolated passages, may have the tendency to excite people to companymit A,I.R, 1946 Lah, 22. crimes of violence but that is number the effect if the pam- phlet is read in its entirety. The result is that I would dismiss the appeal but in the circumstances would make numberorder as to companyts. The State Government has succeeded in its companytention that sec- tion 4 1 a of the Act is companystitutional and that was the real ground on which it came to this Court. PATANJALI SASTRI C.J.--I agree with the judgment just delivered by my learned brother Mahajan J. and have numberhing to add. MUKHERJEA J.--I companycur in the judgment delivered by my learned brother Mahajan J. and I would like to say a few words, regarding the publication itself which led to the demand of security by the Government under the provision of the Indian Press Emergency Act. The point that requires companysideration is, whether the words companytained in the impugned publication are of the nature described in section 4 1 a of the Act or in other words whether they incite to or encourage or tend to incite to or to encourage the companymission of any offence of murder or any companynizable offence involving violence. It is well settled that to arrive at a decision on this point, the writing is to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there, and that the companyrt should take into companysideration what effect the writing is likely to produce on the minds of the readers for whom the publication is intended. Account should also be taken of the place, circumstances and occa- sion of the publication, as a clear appreciation of the background in which the words are used is of very great assistance in enabling the companyrt to view them in their proper perspective. The leaflet in question is entitled Sangram or struggle. It is written in high-flown Bengali prose with a large mixture of poetic expressions borrowed at random from the writings of some well-known poets of Bengal. The object of the writing as far as companyld be gathered from the document is to give a poetic or ideal- istic picture of what is meant and companynotated by struggleor revolution. The aim and end of struggle , as stated in the leaflet, is to wipe outs, oppression, injus- tice or wrong which is pervading all over the world from the past to the future and it is only after all wrongs, injustice and oppression have perished that a new world companyld be built up. This seems to be the main or central theme of the companyposition, clothed, though it is, under much incoherent talk and seemingly meaningless utterances. There is numberindication throughout the writing as to what kind of oppression, injustice or wrong the author had in mind. Far from referring to grievances of any specific character, the writer does number even hint at such general causes of discon- tent as political inequality, economic exploitation or class warfare which are the subject-matter of agitation in many parts of the world. The leaflet does number give indication also of any unpopular measure or act of injustice affecting the minds of the people in the particular area where it was published and within which it was intended to be circu- lated. In one part of the document the following words are found to occur If mother be true, let numberdisgrace spread in the name of the mother. If mother tongue be equal to mother, then the said language is your most revered goddess. Do number allow disgrace to spread in her name. It is number the case of the Government and there is numberstatement or affidavit to that effect, that the passages here have any reference to the language companytroversy which agitated and probably is still agitating this particular district. In another part of the document the expression narrow parochial politics has been used, but here again the Government has number made any attempt to explain, what this expression companyld, in the particular companytext, mean or refer to. As numberacts of injustice or oppression are actually mentioned in the document, it is difficult to say who the oppressors are, whose proud heads the author asks his readers to break. It is quite clear that the oppressor mentioned here is neither the Government number the party in power, number has it any relation to any particular class of persons or a sect or companymunity which might be harassing others and trampling upon their rights. It may be, that to attract the operation of section 4 1 a of the Indian Press Act, the incitement to murder or violence need number be specifically directed against particular individuals or class of persons but when the whole talk is about injustice or oppression in the abstract, which is stated by the author to be in existence from the beginning of time and when in hyperbolic language a hope is expressed of establishing a better and a cleaner world through struggle, sweat and blood, the words used may number improperly be looked upon as an effusion of poetic fancy which, having numberrelation to actual facts can have very little potency for doing mis- chief. I will number proceed to examine the companytents of the pamphlet in detail. The writer begins in an affected poetic vein and de- scribes, in language, to which it is difficult to attach any rational meaning, what struggle or revolution is. The struggle which is personified in the article introduces itself in the following manner I am number wealth, number popular strength, number the people number fameI am number joy number a brag, number the timid look of the beloveds eyes I am number mothers affection, number sisters love. If these words companyvey any sense, they can only mean that the struggle or revolution which the writer wants to depict is something different from what we ordinarily associate with our social life and happiness it is a negation of all natural human feelings and sentiments. The next paragraph says in equal enigmatical language what Sangram or strug- gle actually is. I am old antiquated history thus the article proceeds I am time eternal, I am the future, the present and the past, in my heart is written the story of the past, the problems of the present and the voice of the future. I do number know whether this is a poetic way of depicting the entire life process which is said to lie through struggle and guide our evolution in this planet. Struggle, according to the author, is companyval with time and eternity. In the next paragraph the writer passes on to say with many repetitions of the word wrong that it is wrong which is pervading all over from the past to the future, and it is this wrong that is to be righted by the struggle. The struggle here is likened for reasons best known to the author to a piece of torn grass in the middle stream of a turbulent river, and to a grain of dust thrown in the face of a cyclone. It is dishonour, Unhappiness, endless pain. It is again likened successively to the frown of the be- loved, to famine, storm and evil days. The call is sent to everybody to companye on where the sky is cracking and the endless rough and thorny path is shrouded in darkness and assist in building up a new world Many of the expressions used here are taken verbatim from the writings of some well-known Bengalee authors, though they sound numberhing but a rigmarole in the present companytext. The next paragraph begins with the word revolution. Struggle is revolution and through struggle and revolution the world is to be built anew. It is then said that death is my darling and death is the only truth in this world. If one has to die, there is numbersense in dying of illness. Let a man choose an honourable death by standing against oppressors. Quite abruptly the author brings in the name of Sri Subhas Chandra Bose in the midst of this talk and asks his readers to listen far far away across the hills, across the jungle, across the rivers and rivulets the call of Subhas Chandra Bose, the greatest revolutionary leader of the world. The people are asked number to stop until the objective is attained. Again it is said I am struggle, I am revolution I am a Hindu, I am a Mussalman, I am a Christian, I am a Jew, I am a Keduin, I am severed from all religions by the fruits of my action in previous births. Without the least attention to any sequence of thought, immediately after this, the imaginary oppressor is addressed by the author as follows Oh you foolish oppressor you want to terrify with your red eyes, I fear number. The author, or rather the personified struggle which purports to speak, then repeats the well-known words of poet Tagore and says that he does number seek salvation through renunciation he wants that salvation which lies in joy amidst innumerable dangers and difficulties. The idea of finding joy in all that is hated, avoided and dreaded in this world is elaborated in the passages that follow. Death it is said is my secret love, poison is my drink, the flames of fire are my sweet breeze, the cry of childless mothers a tune in my flute and the weeping of widows a rythm of my song. In this vein the author goes on companyjuring up all the uncanny and weird things in the world and associat- ing them with struggle. I am number joy, I am the remnant of the dying cries I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. I want blood Break the proud head of the oppressor. I bathe in flames Thunder is my kiss of affection I do number understand myself. I do number know myself. I do number recognise myself still I want revo- lution, still I want struggle. The learned Judges of the High Court laid very great stress on these passages which in their opinion companystitute a direct incitement to bloody revolution and that is also the line of argument adopted by Mr. Mitter who appeared before us on behalf of the State. It has been argued by Mr. Ghosh appearing for the respondent that the struggle which the author has depicted and which he aims at is a number-violent struggle and the blood that is to be shed is the blood of those who are called upon to resist oppression and injustice. On the other hand, it is argued on behalf of the State that the passages quoted above can only mean that it is a bloody and violent revolution which companyld carry men to their desired end. In my opinion, neither of these companytentions furnish to us the proper method of approach to the question which requires decision in the present case. We would have to look at the article as a whole and focus our attention on what can be regarded to be its central theme or purpose. As has been said already, what the writer wants is to draw an ideal picture of struggle or revolution quite unconnected with any particular place, or any particular political or social environment. Injustice or oppression exists, according to the author, from the very dawn of time and so also does struggle or revolution. It is an integral part of the world process and is a sort of irrational or blind impulse. This is expressed by saying I do number understand myself,I do number recognise myself, still I want revolution. In painting death or war, the artist would naturally choose some uncanny associations. The trappings of revolution, as the author paints it, are all the fearful and hideous things in this world. It is linked up with thunder and storm, fire and devastation, cataclysm, famine, danger, destruction and death. It is immaterial so far as this ideal picture is companycerned whether the blood that is spoken of is the blood of the oppressor or of the oppressed, and whether the strug- gle is violent or pacific. The goddess Kali in the Hindu mythology is the goddess of destruction and death, but she is the benign goddess also whose protecting hands ward off all oppressions, danger and calamity. That is the reason why revolution or struggle is assimilated to this goddess. It cannot be denied that in painting this picture of strug- gle or revolution the author has used very strong words but they would number be unnatural if it is only an ideal picture that the author really desired to paint. If howev- er, it can be shown that under the cloud of these general enigmatical words something companycrete and tangible lies hidden, that the oppression and oppressor are number imagi- nary abstractions but are real things number unknown to the people to whom the article is addressed and there is in fact a grievance agitating the popular mind, numbermatter whether it is well or ill founded, against which the author desires to inflame public opinionthen even though he uses veiled or companyert language, there can be numberdoubt that the article would companye within the purview of section 4 1 a of the Indian Press Act. But the difficulty is that the Government has number made any attempt to establish any of these facts. Without knowing the attendant circumstances and the actual background of the publication, it is number possible for us to ascertain the real intention that lies behind the writing and absolutely numbermaterials have been placed before us by the Government which might enable us to find out what in reality was the sub- stance behind this camouflage of words, if camouflage it actually is. The rest of the article proceeds in the same hyperbol- ic and enigmatical style There is repetition ad nauseam of the same stock phrases and expressions. It goes on to say I am the messenger of death. I am untouchable, I am vague, I am queer, 1 am nightmare, I am robber, I am enemy, I am un- known. 1 am number Falgoon with its sweet smelling flowers I am eternal separation, I am restlessness. I am extremely doubtful whether expressions like these would number, to an ordinary reader, appear to be anything better than the ravings of a mad man. I will cull a few more expressions which occur subsequently and which loftily this impression. I see struggle on my darlings face, I see struggle in the honey of flowersI am storm, I am the Deepak Ragini.I am misfortune. I am cry of distress, I am jealousy, I am evil days. The companycluding portion of the article reads as follows Let me speak the last word If you are true, if you are gift of God, if you are number a bastardthen companye forward with a fearless heart, struggle against the oppressors improper companyduct, oppression and injustice. We shall number tolerate wrongful oppression. Oh, the people, with the pain of your heart-burn the heart of the oppressive high-handed oppressor, let all wrongs, all high-handedness, all oppres- sions, all tyrannies be burnt in the flame. There was a good deal of discussion before us as to whether these passages hint at a violent or a number. violent struggle. It may be capable of either interpretation. but as I have said already, that by itself would number afford a decisive solution of the question before us. It is also number much material to companysider whether the author wants that Jealousy and malice which he has referred to at the end of the article, are to develop and spread or they are to be transformed into innocuous and sweet smelling flowers. This is certainly a matter upon which difference of opinion is possible. After all, we are to see what impres- sion the article read as a whole would produce upon ordinary people. An ordinary reader is number expected to seek the assistance of an interpreter in trying to find out the true meaning of the words used. As has been said already, many of the expressions used here have been taken verbatim from the writings of certain numbered Bengalee authors. They are stock phrases current in Bengal and amongst the Bengali speaking companymunity elsewhere. If it strikes the reader that what the author wanted was to pass himself off as a numbered writer by sheer plagiarism, then whatever else may be said about the article, it certainly does number companye within the purview of section 4 1 a of the Press Act. Taking the article as it is, it is numberhing but a tissue of high sounding and meaningless words and whether the author wanted to imitate some of the welt known poets of Bengal in attempting to give a poetic description of strug- gleor revolution or wanted to give himself the pose of a liberator of mankind, out to wipe out the last vestiges of oppression and injustice from the face of the earth, numberrational person would take him seriously and would look upon this companyposition as the vapourings of a deranged brain.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION. Cases Nos. 283 to 295 of 1951. Appeals under article 132 1 of the Constitution of India from the judgment and decree dated 10th May, 1951, of the High Court of Judicature at Allahabad Malik C.J., Mootham, Chandiramani, Agarwala and Bhargava J.J. in Writ Applications Nos. 23, 25, 3330, 3329, 3331 and 3332 of 1951 and Miscellaneous Judicial Cases Nos. 1 and 2 of 1951 and Civil Miscellaneous Nos. 335, 340, 345 of 1951 Lucknow Bench and from the judgment and order dated 9th July, 1951, of Sapru and Agarwala J.J in Writ Application No. 3403 of 1951. 1058 The facts that gave rise to these appeals and petitions are stated in the judgment. R. Das and S.K. Dar B. Sen and Nanakchand, with them for the appellants in Cases Nos. 283 to 286, 289 and 290 of 1951. R. Ambedkar and Bishan Singh for the appellants in Cases Nos. 285 and 288 of 1951. P. Asthana and K. B. Asthana, with him for the appellants in Cases Nos. 291 to 294 of 1951. Prem Mohan Varma for the appellants in Case No. 295 of 1951. C. Setalvad, Attorney-General for India, and Kanhaiya Lal Misra Gopalji Mehrotra and Lakshmi Saran, with them for the respondents. 1951. May 2, 5. The judgment of the CHIEFJUSTICE printed at pp. 893-916 supra companyers these cases also. MAHAJAN, MUKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ. delivered sepa- rate judgments. MAHAJAN J.--These appeals under article 132 1 of the Constitution companycern the companystitutionality of an Act known as the Uttar Pradesh Zamindari Abolition and Land Reforms Act U. P. Act I of 1951 , and can be companyveniently disposed of by one judgment. The appellants in most of them are owners and proprie- tors of extensive landed properties in the State of Uttar Pradesh. Some of them are holders of estates in Oudh under taluqdari squads granted to their ancestors by the British Government. H.H. Maharaja Paramjit Singh of Kapurthala, appellant in Appeal No. 285 of 1951, is the holder of an estate in Oudh, the full ownership, use and enjoyment of which was guaranteed to him by the Government of India under article XII of the Pepsu Covenant of Merger. Appeals Nos. 291 to 295 of 1951 have been preferred by religious institu- tions holding endowed properties. On 8th August, 1946, the United Provinces. Legislative Assembly passed the following resolution -- 1059 This Assembly accepts the principle of the abolition of the zamindari system in this Province which involves inter- mediaries between the cultivator and the State and resolves that the rights of such intermediaries should be acquired on payment of equitable companypensation and that Government should appoint a companymittee t0 prepare a scheme for this purpose. A companymittee was appointed to give effect to the resolu- tion and to prepare the necessary scheme. It made its report in July, 1948. A Bill was introduced in the United Provinces Legislative Assembly on the 7th July, 1949, was referred to a Select Committee which made its report on 9th January, 1950, and was read before the Assembly for the first time on 17th January, 1950. On the 21st January, 1950, the Assembly was prorogued. It reassembled on the 2nd February, the Bill was reintroduced on the 7th February, 1950, and was read for the second time on 28th July, 1950, and for the third time on 4th August, 1950. On 6th Septem- ber, 1950, it came before the Legislative Council and the Council passed it with certain amendments on the 30th Novem- ber, 1950. The Legislative Assembly was prorogued on the 13th October, 1950, and in view of the amendments made in the Legislative Council, the Bill was reintroduced in the Legislative Assembly on 26th December, 1950, and was passed in its amended form on 10th January, 1951. It was subse- quently passed by the Legislative Council and after having received the assent of the President came into force on or about the 25th January, 1951. The Preamble of the Act declares thatWhereas it is expedi- ent to provide for the abolition of the zamindari system which involves intermediaries between the tiller of the soil and the State in the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure companysequent on such abolition and acquisition and to make provision for other matters company- nected therewith. 1060 Sub-section 1 of section 4 provides that as from such date as the State Government may by numberification declare, all estates situated in the Uttar Pradesh shall vest in the State free from all encumbrances. Estate is defined in section 3 8 as meaning the area included under one entry in any of the registers prepared and maintained under clause a , b , c or d of section 82 of the United Provinces Laud Revenue Act, 1901, or in the registers maintained under clause e of the said section in so far as it relates to a permanent tenure holder and includes share in or of an estate. Section 6 enacts that subject to certain very minor exceptions, upon the publication of a numberification under section 4, the rights, title and interest of all intermediaries in every estate in the area referred to in the numberification, and in all sub-soil in such estates including rights if any, in mines and minerals, shall cease and shall be vested in the State of Uttar Pradesh free from all encumbrances. The expression intermediary is defined in section 8 2 as meaning with reference to any estate, a proprietor, under-proprietor, sub-proprietor, thekadar, permanent lessee in Avadh, and permanent tenure-holder of such estate or part thereof. The intermediaries whose rights, title and interest are thus acquired become entitled to receive companypensation at eight times the net assets mentioned in the Compensation Assessment Roll prepared in accordance with the provi- sions of the Act. The Act further provides that the State Government shall pay to every intermediary other than a thekadar, whose estate or estates have been acquired under the Act, a rehabilitation grant on a graduated scale provid- ed that the land revenue payable by such an intermediary does number exceed Rs. 10,000. The scale of the grant is given in Schedule I. Save in the case of wakfs, trusts and endow- ments which are wholly for religious or charitable purposes, the highest multiple is for class paying land revenue up to Rs. 25. the multiple being twenty, while the lowest is for the class 1061 paying land revenue exceeding Rs. 5,000, but number exceeding Rs. 10,000 when the multiple is one. Part I of the Act includes provisions for the vesting of all estates in the State, for assessment of companypensation, for payment of companypensation to all intermediaries and of rehabilitation grant to those of them who pay Rs. 10,000 or less as land revenue and similar matters. Part II deals with companysequential changes that become necessary by reason of the vesting of all estates in the State and provides for the incorporation in each village of a gaon samaj and the vesting of certain lands in the gaon samaj it divides the cultivators into four classes, viz, bhumidars, sirdars, asamis and adhivasis, determines their rights and provides for the payment of land revenue it further companytains provi- sions designed to prevent the fragmentation of holdings or their division into holdings of uneconomic size, and to facilitate the establishment of companyoperative farms, and other similar matters. The following provisions of the Act which came in for severe criticism during the companyrse of the arguments ad- dressed to us may be set out in extenso. Section 6 a provides for the vesting in the State of all rights, title and interest of all the intermediaries in every estate in such area including land cultivable or barren , grove land, forests whether within or outside village boundaries, trees other than trees in village abadi, holding or grove , fisheries, wells other than private wells in village abadi, holding or grove , tanks, ponds, water channels, ferries, pathways, abadi sites, hats, bazars and melas. Clauses e and g of this section are in these terms - All amounts ordered to be paid by an intermediary to the State Government under sections 27 and 28 of the U.P. Encumbered Estates Act, 1934, and all amounts due from him under the Land Improvement Loans Act, 1883, or the Agricul- tural Loans Act, 1884, shall numberwithstanding anything company- tained in the said enactments, become due forthwith and may, without prejudice to any other mode of 1062 recovery provided therefore, be realised by deducting the amount from the companypensation money payable to such interme- diary under Chapter III. g i Every mortgage with possession existing on any estate or part of an estate on the date immediately preced- ing the date of vesting shall, to the extent of the amount secured on such estate or part, be deemed, without preju- dice to the rights of the State Government under section 4, to have been substituted by a simple mortgage numberwithstanding anything companytained in the mortgage deed or any other argreement, the amount declared due on a simple mortgage substituted under sub-clause i shall carry such rate of interest and from such date as may be pre- scribed. Section 7 saves certain rights at present held by the proprietors from the purview of the Act. The rights includ- ed are in respect of mines which are being worked by the zamindars. Section 9 provides that private wells, trees in abadi and buildings situate within the limits of an estate shall companytinue to belong to or be held by such intermediary. Section 10 makes every tenant of land belonging to an inter- mediary and paying land revenue upto Rs. 250, a hereditary tenant thereof at the rate of rent payable on the date of vesting. Section 12 gives the same privilege to thekadars. Similarly section 15 companyfers the status of hereditary ten- ants on occupants of lands in which such rights did number exist. Section 18 provides that all land in the possession of intermediaries as sir, khudkasht or an intermediarys grove shall be deemed to be settled by the State Government with such intermediary etc., subject to the provisions of the Act and he will be entitled to possession of it as bhumidar thereof. Land held by any person as a tenant is deemed to be settled by the State Government on such person as sirdar. Sections 27 and 28 are in these terms -- Every intermediary, whose rights, title or inter- est in any estate are acquired under the provisions of this Act shall be entitled to receive and be paid companypensation as hereinafter provided. 1063 28. 1 . Compensation for acquisition of estates under this Act shall be due as from the date of vesting subject to determination of the amount thereof. There shall be paid by the State Government on the amount so determined interest at the rate of two and half per centum per annum from the date of vesting to the date of- in the case of the amount to be paid in cash, deter- mination, in the case of the amount to be given in bonds, the redemption of the bonds. Section 39 lays down the method of determination of the gross income of the land companyprised in a mahal, while section 42 provides for the determination of the gross assets of an intermediary. Section 44 lays down the manner of assessing the net income of an intermediary. It provides as follows - The net assets of an intermediary in respect of a mahal shall be companyputed by deducting from his gross assets the following, namely a any sum which was payable by him in the previous agricultural year to the State Government on account of land revenue b an amount on account of agricultural income tax, if any, paid for the previous agricultural year c companyt of management equal to 15 per centum of the gross assets. Provision has been made for the appointment of assess- ment officers and for the preparation of draft companypensation assessment roll by them after hearing objections. Right of appeal has also been provided against their decision. Chapter IV companycerns itself with the payment of companypensa- tion. Section 65 of this chapter provides that there shall be paid to every intermediary as companypensation in respect of the acquisition of his rights, title and interest in every estate the amount declared in that behalf under section 60. Section 68 is in these terms -- 1064 The companypensation payable under this Act shall be given in cash or in bonds or partly in cash and partly in bonds as may be prescribed. Section 72 empowers the State Government to make rules on all matters which are to be and may be prescribed. Sec- tions 113 and 117 provide for the establishment and incorpo- ration of a gaon samaj and for the vesting of all lands number companyprised in any holding or grove and forests within the village boundanes, trees, public wells, fisheries, hats, bazars etc., tanks and ponds in the gaon samaj, which is to supervise and manage and companytrol the lands subject to super- vision by the Government. Other provisions of the Act relate to acquisition of bhumidari rights and of sirdari rights by tenants, thekadars etc., on payment of a certain amount mentioned in the Act. A bhumidar has the status of a peas- ant proprietor in direct relation to Government and these agrarian reforms companytemplated by the Act aim at companyverting the zamindari tenure system into a ryotwari system. The main questions for companysideration in these appeals are the following -- Whether the impugned Act was validly enacted. Whether the acquisition of properties company- templated by the Act is for a public purpose. Whether the delegation of power in the various sec- tions of the Act is within the permissible limits. Whether the taluqdari properties held under sanads from the British Government can be the subject-matter of acquisition. Whether the properties of the Maharajah of Kapurthala in Oudh companyld in view of article 12 of the Pepsu Union Covenant be acquired under the Act. Whether the said Act companystitutes a fraud on the Con- stitution. The validity of the Act was attacked on a variety of grounds by the learned companynsel appearing in the different cases and the grounds urged were by number1065 means uniform or companysistent and some of these were destruc- tive of one another. Mr. P.R. Das, who opened the attack, reiterated the arguments he had addressed to us in the Bihar appeals and urged that the obligation to provide for companypensation is implicit in the power companyferred on the State Legislature by entry 36 of List II with respect to acquisitions, that the words subject to the provisions of entry 42 of List III in entry 36 companypel the companyrt to companystrue entry 36 of List II along with entry 42 of List III and, when so companystrued, it is clear that companypensation has to be provided for whenever power is exercised under entry 36, that there is numberprovi- sion for payment of companypensation in the impugned Act, the word companypensation meaning the equivalent in money of the property companypulsorily acquired, that the U.P. Legisla- ture had numberpower to enact this Act without making provision for payment of companypensation and in legal companytemplation the Act is number law, that article 31 2 companyfers a fundamental right but has numberhing to do with legislative powers which have been companyferred by articles 245 and 246 read with the three lists, that article 31 4 does number in any way affect the rights companyferred by article 31 2 , which exist numberwith- standing article 31 4 , and it only bars the remedy to challenge the Act on the ground that it companytravenes the provisions of clause 2 , that the Act companystitutes a fraud on the Constitution, and lastly that the Act is void by reason of delegation of essential legislative power. On the question of the invalidity of the Act for want of a provision for payment of companypensation, Mr. P.R. Das rein- forced his arguments by reference to legislative practice in India and England and companytended that even without any ex- press provision for companypensation in the different enactments to which our attention was drawn, the mere use of the word purchase implied that companypensation was a companycomitant obligation of the exercise of the power to companypulsorily acquire property. For the reasons 1066 given by me in the Bihar appeals I cannot accept this company- tention. If the Constitution was silent on the point and provided for companypulsory acquisition, the position might have been different. Mr. Dhar, who appeared in some of the appeals, supple- mented the arguments of Mr. Das on this point. He companytended that regarding half of the properties acquired, the Act was a piece of companyfiscatory legislation as these properties were numberincome bearing, and that as regards the other half, though companypensation at eight times the net income is provided, it is a mere sham inasmuch as the Act makes pay- ment of companypensation discretionary at the will and pleasure of the Government the provision being that Government will pay when it chooses to do so and it may never make the choice. He further companytended that the provisions of the Act regarding companypensation are companyourable because they companyplete- ly ignore the potential incomes of the zamindars take numberice only of the income recorded in the khatuni entries which do number include the sir income, and acquire rent-free holdings and undeveloped mines without any companypensation, that the deduction of agricultural income-tax from the gross income was unjust and the object of deduction was to artificially reduce the net income, and the same procedure had been adopted in the case of forests. Dr. Ambedkar, who appeared in some of the appeals, suggested a new approach for declaring the Act to be bad. He companytended that qua estates defined in article 31-A, Part I of the Constitution should be deemed as repealed and struck off from the Constitution. In deciding these appeal therefore, we are to look at the Constitution without the chapter on Fundamental Rights but as the Constitution aims at securing liberty and equality for the people and gives only a restricted power to the State, the obligation to pay companypensation when private property is taken is implicit in the very spirit of the Constitution. Mr. Das found the obligation to pay companypensation implicit in entry 36, but Dr, Ambedkar companyld number see 1067 eye to eye with him though he supported his companytention by urging that the prohibition to acquire property by legisla- tion without payment of companypensation was implicit in the spirit of the Constitution. Mr, Varma, who appeared in some other appeals, supported Mr. Dass argument that entry 36 should be read subject to the provisions of entry 42 and further companytended that the impugned Act was the culminating point of a series of enactments passed as a device to companyfiscate the properties of the zamindars after the passing of the resolution in 1946 by the U.P. Legislature. Having negatived the companytentions of Mr. Das, I cannot for the same reasons accept the companytentions of Mr. Dhar as sound. It is companyvenient number to examine the point made by Dr. Ambedkar that the obligation to pay companypensation is implicit in the spirit of the Constitution. It is well- settled that recourse cannot be had to the spirit of the Constitution when its provisions are explicit in respect of a certain right or matter. When the fundamental law has number limited either in terms or by necessary implication the general powers companyferred on the legislature, it is number possible to deduce a limitation from something supposed to be inherent in the spirit of the Constitution. This elusive spirit is numberguide in this matter. The spirit of the Consti- tution cannot prevail as against its letter. Dr. Ambedkar relied on the observations of Nelson J. in People v. Morris 1 , quoted in the footnote, at p. 357 of Cooleys Constitutional Limitations. The footnote states -- It is number companysidered an universal and fundamental proposition in every well regulated and properly adminis- tered government, whether embodied in a companystitutional form or number, that private property cannot be taken for strictly private purposes at all, number for public uses without a just companypensation and that the obligation of companytracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even 1 13 Wend.325 1068 against the plenitude of power of the legislative depart- ment. Those observations of the learned Judge, however, do number lend support to the companytention urged on the other hand, it seems to me that the proposition stated by Dr. Cooley at page 351 Vol. 1 that the companyrts are number at liberty to declare an Act void, because in their opinion it is opposed to the spirit supposed to pervade the Constitution but number expressed in words, has an apposite application here. It is difficult upon any general principle to limit the omnipo- tence of the sovereign legislative power by judicial inter- position except so far as the express words of a written companystitution give that authority. The argument of Dr. Ambedkar cannot be accepted for the further reason that it is based on an unwarranted assumption that qua the estates of the zaraindars, Part III of the Constitution stands repealed and is number est. The truth is that Part III of the Constitution is an important and inte- gral part of it and has number been repealed or abrogated by anything companytained in article 31-A of the Constitution on the other band, article 31-A, while providing that numberlaw providing for the acquisition by the State of any estate, shall be deemed to be void on the ground that it is incon- sistent with or takes away or abridges any of the rights companyferred by any of the provisions of Part III, clearly provides that where such law is made by the legislature a of State, the provisions of this article shall number apply there- to unless such law having been reserved for the companysidera- tion of the President has received his assent. This proviso in express terms keeps alive the alternative provisions of Part III of the Constitution in article 31 3 for judging whether the State law has or has number companyplied with the provisions of article 31 2 . The provisions of article 31 2 . therefore, do number stand repealed by article 31-A. On the other hand, they are kept alive. The difference is that persons whose properties fall within the definition of the expression estate in article 31-A are deprived of their remedy under article 32 of the Constitution and 1069 the President has been companystituted the sole judge of decid- ing whether a State law acquiring estates under companypulsory power has or has number companyplied with the provisions of article 31 2 . The validity of the law in those eases depends on the subjective opinion of the President and is number justicia- ble. Once the assent is given, the law is taken to have companyplied with the provisions of article 31 2 . It is true that the principles of payment of companypensa- tion stated in the Act do number give anything like an equiva- lent or quid pro quo for the property acquired and provide only for payment of what is euphemistically described in the resolution of the U.P. Legislature as equitable companypen- sation . Properties fetching numberincome pass to the State without payment of any separate companypensation and as companyprising part of an estate which yields some net income to the proprietor According to the affidavit filed in the Balrampur Raj case, actual income of Rs. 1,42,000 that the owner receives at present, works out to a sum of Rs. 10,000 under the provisions of the Act and property worth several crores is being acquired for a mere fraction of its true value. Culturable waste which forms twenty per cent. of the entire area of the estate, trees, several lakhs in number, water channels and irrigation works etc., are being acquired along with the cultivated lands and income-fetching proper- ties without any separate provision for payment of companypensa- tion. But from those facts the companyclusion cannot be drawn that the provisions as to companypensation in the Act are illu- sory. In numbere of the cases companyld it be said that the provisions of the impugned Act would result in numberpayment of companypensation. Great emphasis was laid on the circumstance that numberhing was being paid for number-income fetching properties. It has, however, to be observed that these number-income fetching properties are integral parts of an estate as defined in article 31-A and it cannot be said when payment of companypensation is provided for on the basis of the net income of the whole of the estate, that the legislation 1070 is of a companyfiscatory character. Different companysiderations might have prevailed if the estates as a whole were number being acquired but different pieces of property were made the subject-matter of acquisition. Properties companyprised in an estate may be incomefetching and number-income fetching, the value of these to the owner in the market may well be on the basis of income and if the Act has laid down the principle of payment of companypensation on the foot of net income, it cannot be said that the legislation is outside the ambit of entry 42 of List III. Dr. Ambedkar frankly companyceded that he was number prepared to go to the length of companytending that the companypensation provided for in the Act was illusory. He, however, said that it was inadequate, whether tested subjectively or objective- ly. During the period that the Balrampur Raj was under the supervision of the Court of Wards, part of the property acquired was purchased on payment of Rs. 24,09,705 fetching a net income of Rs. 25,915. This property, however, under the Act would be acquired on payment of Rs. 2,08,000. Under the U. P. Encumbered Estates Act the Government itself had valued properties in various places in Uttar Pradesh for the purpose of the Act on standard multiples, viz., from 37 to 20 times the net income. Price of part of the property acquired on this basis companyes to Rs. 47,14,696, while companypen- sation according to the Act payable would be about onefourth of this amount. Be that as it may, article 31 4 is a companyplete answer to all these companytentions, as held by me in the Bihar appeals. This Bill was pending in the legislature of the. State on the 26th January, 1950, when the Constitu- tion came into force and this circumstance makes article 31 4 applicable to all these cases. It was companytended by Mr. Varma that the U.P. Assembly was prorogued on the 21st January, 1950, and the Bill was reintroduced on the 7th February, 1980, and on the 26th January, 1950, when the Constitution came into force it companyld number be said to be pending as it had lapsed. This companytention seems to be based on a misapprehension as to the provisions of the 1071 Constitution Act of 1935 and the provisions of the present Constitution. Section 73 of the Government of India Act, 1931, and article 196 of the present Constitution provide in unambiguous terms that a Bill pending in the legislature of a State shall number lapse by reason of the, prorogation of the House or Houses thereof. In view of these clear provisions the companytention of the learned companynsel that the Bill was number pending on 26th January, 1950, has to be rejected. Further the provisions of articles 31-A and 31-B companypletely shelter this law from any attack based on any of the provisions of Part III of the Constitution. This proposition was number disputed. As the validity of the Act companyld number be impugned on any of the provisions of Part III of the Constitution, that was the reason why the attack on its companystitutionality was made on other grounds-ingenious but unsubstantial--lying outside the ambit Part III. As regards the companytention that the provisions with regard to payment of companypensation would result in number-pay- ment of it as it is payable at the pleasure of Government and the debts of the zamindars are to be deducted out of it, my view is that both these companytentions are unsound. Under the provisions of the Act above cited, companypensation becomes due on the date of the vesting of the estate. Inter- est at two and a half per cent runs from that date and becomes payable forthwith. Section 27 of the Act makes it obligatory on the Government to pay companypensation. Section 65 in clear terms provides that there shall be paid to every intermediary as companypensation the amount declared in that behalf under section 60. Section 68 gives option to the Government to pay companypensation either in cash or in bonds, or partly in cash and partly in bonds as may be prescribed. If the Government does number prescribe anything, it is obvious that companypensation will be payable forthwith. If, on the other hand, Government makes any rules and prescribes that companypensation will be payable at some remote time and number within a reasonable period it will be open to the 1072 parties affected to challenge the validity of the rules on the ground of abuse of power. These provisions, however, do number vitiate the Act and affect its validity. So far as the debts are companycerned, they were payable in certain instal- ments out of the income of the lands, they have been made payable at once and provision has been made that the amount be deducted from the amount of companypensation. Instalments had been fixed because of the fact that they were recovera- ble from the income of the land. When the lands are companyvert- ed into money, it follows as a matter of companyrse that the right to recover the debts from the income of the lands is transferred to the companypensation money and the provision regarding instalments becomes infructuous by the fact of acquisition. Dr. Ambedkar further companytended that in fixing the amount of companypensation the State was a judge in its own cause and this was against the spirit of the Constitution. There is numbersubstance in this companytention as the actual amount of companypensation is to be determined by the companypensa- tion officer and his adjudication on the point is subject to an appeal. Government is number the judge of the actual amount of companypensation. So far as the law is companycerned, it is the act of the legislature and being within its companypetence, numberchallenge can be made against the validity of the Act on this ground. The question that the Act does number postulate any public purpose and is thus unconstitutional was argued by Mr. Dhar and Dr. Ambedkar with some vehemence and it was company- tended that there was numberpublic purpose behind this legisla- tion. Mr. Dhar urged that the sole purpose of the acquisi- tion of zamindars estates was for increasing the revenues of the State and for selling the intermediaries interests to private individuals, the intention being to make money by trading activities and at the same time root out the zamin- dars who companystitute one-fourth of the population of Uttar Pradesh. It was companytended that numbercommunity in Uttar Pra- desh derived any benefit from the provisions of the Act because the tenants whose status was intended to be raised, had been given 1073 sufficient relief under statutes already passed and what was humanly possible to do for them had been done, that they were at present more prosperous than the middle class people and that the creation of a classless society by destroying a class was number a public purpose. Dr. Ambedkar on the other hand argued that he would have been companytent had the State nationalised the zamindaries because then the acquisition would be for a public purpose, but as under the impugned Act the State had merely companystituted itself a trustee for dis- tribution of the intermediaries interests amongst the haves and number amongst the have numbers i.e., amongst the bhumidars, sirdars, asamis and adhivasis and number amongst the landless, the Act was number for a public purpose at all but was an unfortunate piece of legislation as property was being acquired for the private benefit of persons and number for public use and that giving of property to gaon samaj also companyld number be held to be for public benefit or public use. In my opinion, as already stated by me in the Bihar appeals, these arguments are unsound. The expression public purpose is number capable of a precise definition and has number a rigid meaning. It can only be denned by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its companyour from the statute in which it occurs, the companycept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the companymunity as distinguished from the private interest of an individual. Prof. Willis has summarized the present position in the United States on this subject, at pages 817 and 818 of his book, in these words - What is public use? On this question there have been two view-points. One may be called the older view-point and the other newer view-point. According to the older view- point, in order to have a public use, there must be the use by the public According to the newer view-point there 11074 is a public use if the thing taken is useful to the public. This makes public use for eminent domain practically synony- mous with public purpose for taxation and somewhat like social interest for police power Under this rule it is number necessary for the benefit to be for the whole companymunity, but it must be for a companysiderable number . The High Court took the view that acquisition of proper- ty under companypulsory powers for securing an aim declared in the Constitution to be a matter of State policy is an acqui- sition for a public purpose. The following observations from the judgment of Bhargava J. may be quoted with advantage - The effect of the impugned Act is to vest the ownership and companytrol of a companysiderable part of the material resources of the companymunity in the State Government the vesting in the State of the estate of the intermediaries is an indispensable preliminary to the pursuit of measures for the eradication or mitigation of the principal causes of agricultural poverty. Two of such measures are embodied in the Act, which makes provision for three new classes of tenure-holders, bhumidar, sirdar and asami, and for the formation of companyoperative farms. The provisions of Chapter Vii of the Act, which depend in some measure for their efficacy on the transfer of property to the State effected by Part I of the Act, are clearly directed to the develop- ment of village self-government. It can, we think, be in- ferred from the Act that the scope is given for more effec- tive development of the States agricultural resources than is at present possible Reading the Act as a whole there can, we think, be numberdoubt that the primary object of the legislature is to effect a radical change in the system of the land tenure number prevailing in this State. In my opinion, legislation, which aims at elevating the status of tenants by companyferring upon them the bhumidari rights to which status the big zamindars have also been levelled down cannot be said as Wanting 1075 in public purposes in a democratic State. It aims at de- stroying the inferiority companyplex in a large number of citizens of the State and giving them a status of equality with their former lords and prevents the accumulation of big tracts of land in the hands of a few individuals which is companytrary to the expressed intentions of the Constitution. Dr. Ambedkar companybated this view and urged that the ex- pression public purpose was number a new companycept when the Constitution of India was framed on the other hand, it had a settled meaning in the past legislative history of this companyntry and it must be presumed that the Constitution used the expression in the same sense in which it had been used in the earlier Acts and in the Government of India Act, 1935, and that it should number be companystrued in the light of the directive principles laid down in Part IV of the Consti- tution. He companytended that had the companystitutionmakers intend- ed to give this companycept a different meaning than it had acquired in the past, they would have clearly given expres- sion to that intention by saying that the expression public purpose includes purposes which aim at implementing the directive principles Of State policy and that Part IV of the Constitution merely companytained glittering generalities which had numberjustification behind them and should number be taken into companysideration in companystruing the phrase public purpose. In my opinion, the companytentions raised by Dr. Ambedkar, though interesting, are number sound because they are based on the assumption that the companycept of public purpose is a rigid companycept and has a settled meaning. Dr. Ambedkar is right in saying that in the companycept Of public purpose there is a negative element in that numberprivate interest can be created in the property acquired companypulsorily in other words, property of A cannot be acquired to be given to B for his own private purposes and that there is a positive element in the companycept that the property taken must be for public benefit. Both these companycepts are present in the acquisition 1076 of the zamindari estates. Zamindaries are number being taken for the private benefit of any particular individual or individuals, but are being acquired by the State in the general interests of the companymunity. Property acquired will be vested either in the State or in the body companyporate, the gaon samaj, which has to function under the supervision of the State. Tenants, sirdars, asamis etc., are already in possession of the lands in which their status is to be raised to that of bhumidars. Zamindars who are being re- duced to the status of bhumidars are also in possession of the lands. There is numberquestion in these circumstances of taking property of A and giving it to B. All that the Act achieves is the equality of the status of the different persons holding lands in the State. It is number companyrect to say that Government is acquiring the properties for the purpose of carrying on a business or a trade. The moneys received from persons seeking bhumidari status or from the income of zamindari estates will be used for State purposes and for the benefit of the companymunity at large. For the reasons given above I hold that the impugned Act is number void by reason of the circumstance that it does number postulate a public purpose. As regards the question of delegation, our attention was drawn particularly to the provisions of sections 6 e and g and 68. These sections provide for the prescription of the rate of interest by the executive government on mort- gages and they also authorize the local government to deter- mine the period of redemption of the bonds and the fixation of the ratio between payment of companypensation in bonds and payment in cash. In my opinion, the delegation is within the permissible limits and does number amount to delegation of essential legislative power. The main principles on these matters have been laid down in the Act and matters of detail have been left to the rule-making power. As regards the appeal of the Maharaja of Kapurthala Appeal No. 285 of 1951 , the facts are these By article 12 of the Covenant of Merger dated the 5th 1077 May, 1948, entered into between the Rulers of the States number companyprised in the Pepsu Union, the properties which are the subject-matter of the appeal were declared and guaranteed as the private properties of the Maharaja. Tha Maharaja was also guaranteed a privy purse of Rs. 2,40,000, It was sug- gested that the Maharaja accepted this sum which was smaller in amount than what was allowed to other Rulers as privy purse because he was assured of the income of the Oudh estate. On these facts it was companytended that the impugned Act companytravened the provisions of article 362 of the Consti- tution inasmuch as it has number paid due regard to the guaran- tees companytained in article 12 of the Covenant. As already held by me in the Madhya Pradesh petitions, this companytention is devoid of force. The impugned Act has fully respected the Covenant of the 5th May, 1948, inasmuch as it has treated the Oudh estate as the private property of the Maharaja as distinguished from the State properties and it is on that basis that it has proceeded to acquire it on payment of companypensation. The allegation that the income of this estate was to supplement the privy purse and that the appellant accepted a lower sum by way of privy purse than given to the other Maharajas has been denied by the Government and we see numberreason to hold in the absence of any material to the companytrary, that this denial is number true. This Act, therefore, companystitutes numberbreach of the guarantees given in article 362 of the Constitution. It was urged by the learned Attorney- General that article 363 of the Constitution bars the juris- diction of this Court from going into this question. Dr. Ambedkar, on the other hand, companytended that this article has numberapplication because of the fact that the Government of India was number a party to this Covenant. As at present advised, I see good deal of force in the point raised by the learned Attorney-General. Not only did the Government of India sign the Covenant as a guarantor but it also signed it as a companycurring party and that being so, the provisions of article 363 seem to be attracted to the case. The appeal of the Maharaja therefore fails on this point. 1078 Mr. Bishan Singh, who appeared in Appeals Nos. 284, 285, 288, 289 and 290, argued the special cases of the taluqdars of Oudh. It was companytended that the taluqdars were absolute owners of these holdings at the time of the annexa- tion of Oudh in February, 1856, that subsequently the Brit- ish Government under the directions of Lord Dalhousie tried to take away the taluqdars rights, but that after the mutiny they were reinstated in their earlier status and that status was reaffirmed by the enactment of the Oudh Estates Act, I of 1856, that the permanent and hereditary rights of the appellants under that Act in the lands granted to them under the sanads companyld number be affected by any legislation made by the successors in interest of the British Government and that Government companyld number derogate from its grant. It seems to me that the lands held by the taluqdars stand on numberhigher footing than the properties of other owners in Oudh. Be that as it may, the matter seems to have been set at rest by the decision of their Lordships of the Privy Council in Thakur Jagannath Baksh Singh v. United Provinces 1 . At page 119 of the report it was observed as follows- It is,however,desirable to examine the particular grounds on which it is sought to induce the companyrt to arrive at this paradoxical companyclusion. Some of these are said to be based on the general principle of law that the Crown cannot dero- gate from its own grant, others are said to depend on par- ticular provisions of the Government of India Act. It has number been possible for the appellant to adduce any authority for the principle involved, which their Lordships apprehend to be that Parliament, whether Imperial, Federal or Provin- cial, in the absence of express prohibition, is debarred from legislating so as to vary the effect of a Crown grant. The Crown cannot deprive a legislature of its legisla- tive authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists 1 1946 F.C.R. 111. 1079 and numbercourt can annul the enactment of a legislative body acting within the legitimate scope of its sovereign companype- tence. If therefore it be found that the subject-matter of a Crown grant is within the companypetence of a provincial legislature, numberhing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either abso- lutely or companyditionally. Dr. Asthana, who appeared in Appeals Nos. 291 to 294 of 1951, argued the case of the religious institutions. He companytended that the properties held by these institutions had already been dedicated for public purposes, that the income of these properties was being used for holding melas, feed- ing sadhus and other charitable purposes and that any reduc- tion in that income would adversely affect those institu- tions and the properties that were already dedicated for public purposes companyld number be acquired under companypulsory powers of acquisition. The argument is fallacious. A charity created by a private individual is number immune from the sovereigns power to companypulsorily acquire that property for public purposes. It is incorrect to say that the vesting of these properties in the State under the provisions of the Act in any way affects the charity adversely because the net income that the institutions are deriving from the proper- ties has been made the basis of companypensation awarded to them. Mr. Varma, who appeared in Appeal No. 295 of 1951, raised several new and ingenious points, numbere of which, however, he was able to substantiate. He companytended that the impugned Act may number be void but the numberification which the Government was authorised to issue under the powers company- ferred on it by the statute would be void because the executive government companyld number infringe fundamental rights by a numberification which remained unaffected by articles 31 4 , 31-A and 31-B. The argument does number seem to be valid because it suffers from the defect that if the statute is good, the numberification which is of a companysequential nature cannot be held to be bad it was 1080 next companytended by the learned companynsel that the zamindars had vested rights in existing law, namely, the Land Acquisition Act and the impugned statute companyld number deprive them of the benefits of the provisions of that Act. Similar argument was raised in the Bihar appeals and for the reasons given therein it is repelled. It was then companytended that in view of the provisions of the Religious Endowments Act, lands of religious endowments companyld number be acquired under the provi- sions of the impugned statute. This companytention seems to have been raised on some misapprehension as to the scope and extent of the Religious Endowments Act, XX of 1863. It is number proved that Act has any application to the properties sought to be acquired under the impugned Act. Moreover, that Act only deals with management of certain properties and does number stand in the way of their acquisition. Great effort was made by Mr. Varma to establish that the impugned Act was a piece of fraud on the Constitution. It was companytended that the U.P. Government had been since a long time enacting laws with the fraudulent intention of depriv- ing the zamindars of companypensation by reducing their incomes,--he made mention of half a dozen Acts that were enacted in U.P. prior to the impugned Act. The argument, to my mind, is based on a companyfusion of thought. The enactments referred to were enacted by the legislature of U.P. between 1930 and 1940, before the COnstitution came into force, and have numberconnection whatever with acquisition of properties. Mr. Varma attacked the validity of section 840 of the Act which enacts that- where any orders had been made or jurisdiction exercised under the provisions of the U.P. Agriculture Tenants Acquisition of Privileges Act, 1949, the provisions of the said Act shall be so read and company- strued as if the amendments mentioned in Schedule IV had been made therein and were in force from the companymencement of the said Act. It was companytended that the U.P. Agriculture Tenants Acquisition of Privileges Act, 1949 was an existing 1081 law in U.P. and had number been repealed by the impugned Act and that being so, this Act companyld number validate numberifications made under that existing law. I have number been able to see the force of this suggestion. Be that as it may, the company- stitutionality of this section does number affect the legisla- tion as a whole. The point was never raised before the High Court and has numbersubstance. It was also companytended that mere rights in land apart from the lands themselves companyld number be acquired under company- pulsory power and that the U.P. Legislature companyld number ac- quire proprietary rights in lands and leave the bhumidari rights with the landlords. This proposition sounds strange. It is open to Government to acquire the whole of the rights of an owner or a part of that right. Leasehold and other similar rights can always be acquired and if a person owns the totality of rights, it is number necessary to acquire the whole interest of that person if it is number needed for public purposes. Lastly, it was urged that in truth the legislation in question fell under legislative power companyferred by entry 18 of List II and this power companyld only be exercised subject to the freedom guaranteed by article 19 f of the Constitution, that the total abolition of the zamindaris companyld number be protected by the provisions of clause 6 of article 19 in that it companyld number be regarded a reasonable restriction on the exercise of the right to hold property. This argument loses sight of the fact that numberhelp can be sought in these cases from any of the provisions of Part III moreover, the legislation in question has been enacted under legislative powers given by entry 36 of List II and number under entry 18 of that List. Mr. Varma raised some other companytentions also but during the discussion he eventually abandoned them. The result therefore is that there is numbersubstance in any one of the appeals and I would accordingly dismiss all of them. I would, however, make numberorder 1082 as to companyts in any of them in view of the peculiar circum- stances of these cases. The Constitution was amended during the pendency of the litigation and any companyts allowed to the Government would further reduce the inadequate companypensation that the Government is paying for the acquisition of these estates. MUKHERJEA J.--I agree that these appeals should be dismissed. DAS J.--This group of appeals arises out of various proceedings instituted in the High Court of Allahabad under article 226 of the Constitution questioning the validity of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 U. P. Act No. I of 1951 hereinafter referred to as The Act. On 8th August 1946, the United Provinces Legislative Assembly passed a resolution accepting the principle of the abolition of the zamindari system in the Province involving intermediaries between the cultivators and the State and resolving that the rights of such intermediaries should be acquired on payment of equitable companypensation. To prepare the necessary scheme a companymittee, called the Zamindari Abolition Committee, was appointed. That companymittee submit- ted its report in August, 1948, making various recommenda- tions which have been summarised by Mr. S.K. Dhar appearing for some of the appellants as follows -- Abolition of zamindari on payment of Rs. 137 crores at 21/2 per cent interest Establishment of gaon samaj Supply of rural credit by Government Introduction of a modified form of peasant proprie- torship companybined with voluntary companyoperative farming Introduction of a restricted form of landlordism Prohibiting sub-letting and permitting alienation only to the extent that the alienee will number get more than 35 acres including his previous possessions, 1083 To give effect to the recommendations of the companymittee a Bill which eventually became the Act was introduced in the P. Legislative Assembly on 17th July, 1949. After having been passed by the U.P. Legislature the Bill received the assent of the President on 24th January, 1951. There is numberdispute in this case that the provisions of article 31 3 have been companyplied with. It is also clear, numberwithstanding that at one stage it was disputed by one of the learned companynsel evidently out of some misapprehension, that the Bill was pending before the Legislature at the companymencement of the Constitution and companyes within article 31 4 of the Constitution. The title and preamble of the Act follow the wording of the resolution of the Legislature. The preamble recites that it is expedient to provide for the abolition of the zamind- ari system which involves intermediaries between the tillers of the soil and the State in the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure companysequent upon such abolition and acquisition and to make a provision for other matters companynected therewith. The body of the Act is divided into two parts, each part companytaining six chapters. Chapter 11 of Part I deals with acquisition Chapter III with as- sessment of companypensation and Chapter IV with payment of companypensation. Chapter V is companycerned with rehabilitation grant, while Chapter VI deals with mines and minerals. Chapter VII, which is in Part II, deals with the companystitu- tion of gaon samaj and gaon sabha. Chapter VIII relates to tenure, Chapter IX to Adhivasis. Chapter X is companycerned with land revenue and Chapter XI with companyoperative farms. Chapter XII deals with miscellaneous matters. Broadly speak- ing, the Act provides for acquisition of the interest of intermediaries for a companypensation calculated at eight times the net income arrived at by deducting from the gross assets which are the same as the gross income the Government revenues, cesses and local rates, agricultural income-tax and companyts of management. 1084 Before numberification was issued by the State Government under section 4 of the Act, the intermediaries filed peti- tions under article 226 of the Constitution praying, inter alia, for the issue of a writ in the nature of mandamus or other appropriate directions, orders or writs calling upon the State to forbear from giving effect to or acting in any manner by virtue of or under the Act. By a judgment of a Full Bench of the Allahabad High Court delivered on 10th May, 1951, the petitions were dismissed. The High Court, however, certified, under article 132 1 , that the cases involved substantial questions of law as to the interpreta- tion of the Constitution. The intermediaries accordingly have companye up on appeal before us. Mr. P.R. Das who appears in support of several of these appeals raises the same questions as were raised by him in the Bihar appeals. Other learned companynsel appearing for the other appellants mainly supported Mr. P.R. Das and also sought to reinforce the appellants cases on some additional grounds. Mr. S.K. Dhar has taken us through the provisions of the Act and drawn our attention to the facts and figures appear- ing in the affidavit of Sri J. Nigam filed in Appeal No. 285 of 1951 and the Report of the Zamindari Abolition Committee. He has companytended that of the 20, 16,783 zamindars in U.P. about 20,00,000 are tillers of the soil also that one- fourth of the cultivable lands is with peasant proprietors and the remaining three-fourths is with tillers who pay rent to the zamindars. Most of the tillers have occupancy rights and cannot be ejected. Since 1947, the Congress Government has carried out extensive agrarian reforms the zamindars profits have gone down from 1108 crores in 1939-40 to 1,069 crores in 1945-46, that is to say, there has been a drop of about 39 crorescess has been raised by 27 lacs and income- tax has been imposed to the extent of about one crore of rupees. The price of agricultural produce has gone up by 400 per cent so that the price of produce aggregates to about rupees 851 crores while the rent payable by the tenants is only 17 crores. Therefore, it is 1085 companytended that there does number appear any essential or urgent public purpose for which the impugned Act was necessary at all. Dr. Ambedkar appearing for the appellants in Appeals Nos. 285 and 288 of 1951 has addressed us at length as to the meaning ,of the expression public purpose as explained in various judicial decisions and text books. He has company- tended that it is wrong to say that the Act proposes to acquire the zamindaries for the State. What, he asks, is the destination of the property acquired ? Under the Act the State assumes the function of a trustee for distributing the property. The main purpose of the Act is to companyvert the tenants into bhoomidars, sirdars and so on. The net result of the Act, according to him, is that the property of the zamindars is taken away and vested in the tenants. He points out that the Act makes numberprovision for the land- less labourers. Dr. Ambedkar maintains that this cannot be called acquisition for a public purpose. He submits that public purpose must be distinguished from a mere public interest or public benefit or public utility. He further companytends that the establishment of gaon samaj cannot be said to be a public purpose. As regards companypensation Mr. Dhar points out that in fixing companypensation under Table A regard is to be had only to income. Non-income yielding property goes without any companypensation, e.g., culturable waste. In point of fact Government acquired a large area of culturable waste at Rs. 300 per acre and yet numbercompensation will be paid under the Act for culturable waste. Abadi sites also will bring numbercompensation. Even income yielding property, e.g., irriga- tion works like 600 miles of canal in Balrampur and 143 1/2 miles in Bird estate, will yield numbercompensation although the Government will get additional revenue out of them. Scattered trees in Balrampur alone will companye up to 85,000 in number. The income of Seyer property will only be taken at the figure recorded in Khataunis, although it is well-known that actual incomes are number recorded therein. Seyer and khud 1086 khast were never assessed to revenue, but under the Act they will be so assessed. No companypensation is, however, provided for the loss of status from Zamindari to Bhoomidari. Rent- free holdings granted by the zamindar which at present yield numberincome are number taken into account although there is always a possibility of their resumption. Agricultural income-tax is deducted and forest is valued on an average of 20 to 40 years income, although forest industry is of a very recent growth. Finally, the income of mines is to be companyputed on an average of 12 years income. The undeveloped mines or mines which have number started yielding any income will number fetch any companypensation. These are, in short, the main objections of the landlords as summarised by Mr. S.K. Dhar as to the method of assessment of companypensation. As regards the manner of payment of companypensation Mr. S.K. Dhar points out that the Act does number really provide for payment of companypensation at all in the eye of the law. Under section 68 numbertime is fixed for payment. It is left to be pre- scribed by rules, but numberrules have been made. Compensation payable, say in 40 years or 50 years or 200 years, may be a charity or a dole but is certainly number companypensation, prompt and certain such as is companytemplated by the decision of the United States Supreme Court in Sweet v. Rachel 1 and sever- al other cases cited by him. He maintains that the companypensa- tion is illusory because- it is based number on the actual income but on arbi- trarily determined income the determination of time and manner of payment is left entirely at the discretion of the appropriator, and the source of payment is number the companymunity as a whole but the expropriated proprietors own property. In my judgment in the Bihar appeals I have dealt at length with the meaning of public purpose and I have also dealt with the question of companypensation. 1 4x L. Ed. 188 at pp. 196-97. 1087 It is, therefore, unnecessary for me to reiterate the prin- ciples as I apprehend them. For reasons stated by me in that judgment the impugned Act cannot be questioned on the ground of absence of a public purpose or absence of just companypensation. If anything, the public purpose in the im- pugned Act is much more evident and pronounced than it is in the Bihar Land Reforms Act. It is impossible to say that the impugned Act is number a law with respect to principles on which companypensation is to be determined and the manner of its payment. If the Government does number prescribe how much of the companypensation will be paid in cash and how much will be paid by bonds as mentioned in section 18, the intermediaries will number suffer because under section 65 their right will remain enforceable. I have also dealt with the questions of fraud on the Constitution and the improper delegation of essential legis- lative power in my judgment in the Bihar appeals and I need number repeat the answers given by me. Suffice it to say that for reasons stated in my judgment in the Bihar appeals the main grounds on which the Act is impugned must be rejected. Dr. Ambedkar has urged that the spirit of the Constitu- tion is a valid test for judging the companystitutionality of the impugned Act. He maintains that our Constitution being one for establishing liberty and equality and a government of a free people it must be held to companytain an implied prohibition against the taking of private property except for a public purpose and on payment of just companypensation. The necessity for the existence of a public purpose and for providing for companypensation are, as I have said in my judg- ment in the Bihar appeals, provisions of article 31 2 and, therefore, it is number necessary to have recourse to any spirit of the Constitution, for the letter of the Constitu- tion itself requires the two requisites. Dr. Ambedkar, however, argues that, so far as the appellants are company- cerned, Part III of the Constitution does number exist and, therefore, the maxim expressum facit cessare taciturn does number apply. I am number prepared to accept this argument as 1088 sound. It is true that the appellants cannot question the impugned Act on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by any provisions of Part III, but this circumstance does number imply that Part III is wholly erased out of the Constitution. It exists for all other purposes. For instance, article 3 I-A protects a law providing for acquisition by the State of any estate, but it does number protect a law providing for acquisi- tion by the State of any property which does number companye within the expression estate as defined in that article. For all laws for acquisition of all other properties Part III cer- tainly exists and if it is companyceded that the provisions of Part III exist in so far as such other laws are companycerned the provision of article 31 2 requiring the existence of a public purpose and the provision for companypensation must exclude any theory of the implied existence of those two requirements. In the next place, the spirit of the Consti- tution has to be inferred from some provision, express or implied, of the Constitution. Mr. P.R. Das based his argu- ment on the implications to be deduced from the language of entry 36 in List II and entry 42 in List III. Dr. Ambedkar, however, says that it is number necessary for him to go to any entry at all. He points out that the American Courts have held that where in a Constitution there is a representative form of government in which there is liberty and equality and when the government is a limited one such a Constitution carries with it the implication that the State cannot take private property except for a public purpose and on payment of companypensation. I find it very difficult to accept this argument. The existence of a public purpose and the neces- sity for payment of companypensation have been insisted upon from very old times when the companystitutions of governments in different companyntries were entirely different from the Constitution of the United States. It follows, therefore, that these two elements cannot be said to be an inherent part of the spirit of any particular form of government. Our Constitution has in article 31 2 recognised the exist- ence of the two elements as a 1089 prerequisite to the exercise of the power of eminent domain, The impugned Act having been expressly taken out of the operation of those provisions, the question of invoking any imaginary spirit of the Constitution cannot be entertained. Indeed, invocation of such an imaginary spirit will run companynter to the express letters of articles 31 4 , 31-A and 31-B. Dr. Ambedkar appearing for the Maharaja of Kapurtha- la, who is the appellant in Case No. 289 of 1951, has also raised the point that the private property of the appellant is protected by article 362 of the Constitution and as the impugned Act does number pay any regard to those rights it is void. On 5th May, 1948, certain companyenants of merger were entered into between the rulers of seven Punjab States. Under article 12 of the companyenant each ruler is to be enti- tled to the ownership, use and enjoyment of all private properties. A list was furnished to the Rajpramukh in which certain Oudh properties belonging to the appellant were shown as his private property. The appellant states that the amount of his privy purse was fixed at a low figure in companysideration of the income of the Oudh estate. These allegations are number admitted by the respondents. I have already dealt with the companyrectness of a similar argument raised by Dr. Asthana on behalf of the ruler of Khairagarh in petition No. 268 of 1951 which was companycerned with the Madhya Pradesh Act. Shortly put, my view is that this claim to the private property is number within article 362, that by offering him companypensation the Act has recognised his owner- ship, that, in any event, that article imposes numberlegal obligation on the Parliament or the State Legislature and, finally, that article 363 bars the jurisdiction of this Court with respect to any dispute arising out of the companye- nant of merger. Those companyenants were entered into by the seven rulers and the Government of the Dominion of India was a party thereto in that it companycurred in the companyenants and guaranteed the same. In my opinion, for reasons stated in my judgment in the Madhya Pradesh petitions, there is numbersubstance in this point. 1090 Dr. Asthana appearing for certain religious institutions which are appellants in Appeals Nos. 291 to 294 of 1951 companytended that their property already dedicated to a public purpose cannot be acquired for another public purpose.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 105 of 1950. Appeal from the Judgment and Order dated March 22, 1945, of the Court of the Judicial Commissioner, Ajmer-Merwara, Ajmer Davies J. C. in Civil First Appeal No. 16 of 1944, arising out of the Judgment and Decree dated March 13, 1944, of the Court of the Judge, Small Causes, Ajmer, and Additional District Judge, Ajmer, in Civil Suit No. 28 of 1942. S. Deedwania for the appellant. C. Setalvad, Attorney-General for India, J. N, Sharma, with him for the respondents, 1952. November 10. The Judgment of the Court was delivered by MAHAJANJ.-This is an appeal by special leave granted by the Privy Council and limited to the question of companyrt-fee, viz., whether the memorandum of appeal presented to the High Court companyrt-fee was payable under section 7 iv e or article 17 of Schedule II of the Court-Fees Act. The question whether the memorandum of appeal was properly stamped arose in the following circumstances Edward-Mills Co. Ltd. is a joint stock companypany situate in Beawar, Ajmer- Merwara. In accordance with the provisions of the articles of the companypany one Seth Gadh Mal Lodha and Rai Sahib Moti Lal respondent No. 2 were its chairman and managing director respectively since 1916. Seth Gadh Mal Lodha represented his family firm of Kanwal Nain Hamir Singh, while Rai Sahib Moti Lal represented the joint family firm of Champa Lal Ram Swaroop, 1st July, 1938, Rai Sahib Moti Lal and his firm were adjudged insolvents by the Bombay High Court. The result was that respondent No. 2 had to vacate the office of managing director and -the members of his firm also became ineligibleforit. By a resolution of the board of direetors passed 18th July, 1938, Gadh Mal Lodha was appointed to take the place of Rai Sahib Moti Lal as managing director. Gadh Mal Lodha died llth January, 1942, and the board of directors then appointed Seth -Sobhagmal Lodha to act as chairman as well as managing director till the, appointment was made by the companypany. An extraordinary meeting of the companypany was called for the 8th February, 1945, for the election of the chairman. At this meeting companyflict rose between the two groups represented by Sobhagmal Lodha and Moti Lal. The chairman therefore dissolved the meeting but the supporters of Moti Lal companytinued to hold it and passed a resolution appointing him as the sole agent and chairman for a period of twenty years a remuneration equal to ten per cent of the profits of the companypany It-is this resolution of the 8th February, 1942, which has led to the present dispute. Seth Sobhagmal in the situation that arose approached the District Judge of Ajmer with the prayer that a general meeting of the companypany may be held under the supervision of the companyrt. This request was allowed 11th February, 1942, and the companyrt ordered that the meeting be held 12th February, 1942, under the chairmanship of Seth Sobhagmal. Respondent No. 2 being aggrieved by this order, filed an ap- plication in revision in the Court of the judicial Commissioner impugning the order. The learned Judicial Commissioner allowed the revision and directed that the resolution of the 8th February, 1942, should be acted upon. Having failed to get redress in the summary proceedings, the appellant then filed the suit out of which this appeal arises for quashing the resolution of the 8th February, 1942. In the plaint he asked for the following relies- That it be declared that the appointment of defendant No. 2 is illegal, invalid and ultra vires and that he has numberright to act as chairman, managing director etc. of defendant No. 1 That a receiver be appointed to take charge of the management of the companypany, until a properly qualified chairman managing director etc. are duly appointed as required by the memorandum and articles of the companypany. The plaint bore a companyrt-fee stamp of Rs. 10 only, but the objection of the respondents that companyrt-fee was payable relief No. 2 the appellants paid ad valorem fee Rs. 51,000 which was the valuation of the suit for purposes of jurisdiction. The Additional District Judge dismissed the suit the preliminary ground that it was number maintainable as it related to the internal management of the companypany and that the, appellants had numberright to bring it without impleading the directors who were necessary parties to it. Aggrieved by this decision of the trials Judge, the appellants preferred an appeal to the Court of the Judicial Commissioner, Ajmer-Merwara, at Ajmer. The memorandum of appeal was Stamped with a companyrtfee stamp of Rs. 1 0 and it was expressly stated therein that relief No. 2 of the plaint was given up. An objection was raised regarding the amount of companyrtfee paid the memorandum of appeal. The Judicial Commissioner ordered that proper companyrt-fees be paid thereon in a month. In this order numberreasons were given for this decision. The additional fee demanded was number paid, and the Judicial Commissioner dismissed the appeal with companyts 22nd March, 1945. An application was made for leave to appeal to the Privy Council against this order but, it was refused. In the order refusing leave it was said as follows- appeal to this companyrt, the memorandum was again stamped with a ten rupee stamp only and the respondents therefore objected. It having been companyceded by plaintiffs earlier that the relief for the receivership was companysequential to the relief for the declaration, the appellants were directed to pay the same stamp as had been -paid in the trial Court. They objected stating that they had expunged from their memorandum of appeal the request that the companyrt should appoint a receiver and that they were number, therefore, liable to pay the same amount this a numberice was issued and companynsel were beard. It being clearly set out in section 42 of the Specific Relief Act that numbercourt shall grarant a declaration only where the plaintiff being able to seek further relief than a mere declaration of title omits to do so, the appellants were directed to pay as earlier ordered the same amount as bad ultimately been paid the plaint. They had earlier sought a companysequential relief and the companyrt was, therefore, entirelv unable to hold that the plaintiffs were unable to seek a further relief, they having sought the relief in the lower companyrt and it having been refused to them. The amount of-the stamp was number paid and the appeal was therefore dis- missed with companyts. The reasons for demanding additional companyrt-fee, though number mentioned in the original order, are stated in this order. The question for determination in this appeal is whether the order of the Judicial Commissioner demanding additional companyrt-fee can be sustained in law. A memorandum of appeal, as provided in article 1 of Schedule I of the Court-Fees Act, has to be stamped according to the value of the subject-matter in dispute in appeal in other words, the relief claimed in the memorandum of appeal determines the value of the appeal for purposes of companyrt-fee. The only relief claimed in the memorandum of appeal was the first one mentioned in the plaint. This relief being purely of a declaratory character, the memorandum of appeal was properly stamped under article 17 of Schedule II It is always open to the appellant in appeal to give up a portion of his claim and to restrict it. It is further open to him unless the relief is of such a nature that it cannot be split up, to relinquish a part of the claim and to bring it within the amount of companyrt-fee already paid Brahnmnandam Secretary of State for India 1 Ram Prasad v. Bhiman 2 Karam Chand v. Jullundur Bank Ltd 1 Neelachalam v. Nara- singha Das 4 Sah Bamehand v. Pannalal 5 Chuni Lal v. Sheo Charanlat Lalman 1 . The plaintiffs in express terms relinquished the second relief,they had claimed in the plaint, in their memorandum of appeal. For the purpose of deciding whether the memorandum of appeal was properly stamped according to the subjectmatter of the appeal, it was number open to the Judicial Commissioner to canvass the question whether the suit with the second prayer eliminated from it fell within the mischief of the proviso to section 42 of the Specific Relief Act. That was a question which related to the merits of the appeal and did number companycern its proper institution this ground, therefore, the Judicial Commissioner had numberjurisdiction to demand I 1930 I.L.R. 53 Mad. 48 2 1905 I.L.R. 27 All. 151. A.I.R. 1927 Leh. 543. A.R. 1931 Mad 716. A.I.R. 1929 All. 308. 6 1925 I.L.R. 47 All. 756. additional fee from the plaintiffs and the appeal companyld number be dismissed for failure to meet it. We are thus of the opinion that the order demanding additional companyrt-fee the memorandum of appeal as it stood, that is, minus the second prayer, was erroneous and we hold that the memorandum of appeal was properly stamped, as the subject-matter of the appeal was purely of a declaratory character. Mr. Setalvad for the respondents companytended that the first relief claimed in the plaint, and which was the subject- matter of the appeal included within it companysequential relief and was number purely declaratory in nature and therefore the Judicial Commissioner was right in demanding additional companyrt-fee the value of the companysequential relief. It was said that the words that respondent No. 2 had numberright to act as chairman and managing director amounted to a claim for companysequential relief. We are unable to agree. The claim companytained in the first relief of the plaint is to the effect that it be declared that defendant No. 2 has numberright to act as chairman an managing director because of his appointment being illegal, invalid, and ultra vires. The declaration claimed is in negative form that defendant No. 2 has numberright to act as chairman and managing director. No claim for a companysequential relief can be read within this prayer. The words that defendant 2 has numberright to act as chairman are mere repetition and reiteration of what is companytained in the opening sentence of the paragraph. This companytention of Mr. Setalvad, therefore, cannot be sustained. It was next companytended that in view of the provisions of section 12 of the Court-Fees Act it should be held that the decision of the Judicial Commissioner was final, and companyld number be challenged in appeal. Section 12 of the Court-Fees Act enacts as follows Every question relating to Situation for the purpose of determining the amount of any fee chargeable under this chapter a plaint or memorandumu of appeal shall be decided by the companyrt in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. The provisions of this section have to be read and companystrued keeping in view the provisions of the Code of Civil Procedure. Order VII, Rule 11, Civil Procedure Code, provides as follows- The plaint shall be rejected- b where the relief claimed is undervalued and the plaintiff, being required by the companyrt to companyrect the valuation within a time- to be fixed by the companyrt, fails to do so d where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, being required by the companyrt to supply the requisite stamp paper within a time to be fixed by the companyrt, fails to do so. An order rejecting a plaint is a decree as defined in section 2 sub-section ii , and is appealable as such. There is an apparent companyflict between the provisions of the Code of Civil Procedure and the provisions of section 12 which make the order relating to valuation final and efforts to reconcile the provisions of the Court-Fees Act and the Code have resulted in some divergence of judicial opinion the companystruction of the section. In a number of decisions the Calcutta High Court took the view that the finality declared by section 12 of the Court-Fees Act had been taken away by the relevant provisions of the Code, as the order rejecting a plaint was appealable as a decree, numbermatter whether the dispute related to the category under which the same falls for purposes of companyrt-fee or only to valuation pure and simple under a particular category Vide In re Omrao Mirza v. Mary Jones , and Tara Prasanna Chongdar v. Nrisingha Moorari Pal 1 . This extreme view has number been maintained in later decisions and it has been held that the finality declared by section 12 is limited only to the question 1883 12 C.L.R. 148. 2 1924 I.LR. 51 Cal. 216. of valuation pure and simple and does number relate to the category under which a certain suit falls Tariman Khatun v. Secretary o State for India in Council 1 . The Allahabad High Court in its earlier decisions took the extreme view Vide Muhammad Sadik v. Muhammad Jan 2 . Later that -court veered round to the view that the finality declared by section 12 only related to matters of, appraisement. The High Court of Lahore has placed a similar companystruction the meaning of the expression valuation in section 12 and has held that the finality attaches only to a decision which companycerns valuation simpliciter and numberfinality attaches when a companyrt decides a question whether a case falls within one or other category of the cases mentioned in the different sections and schedule of the Court Fees Act Vide Mahna Singh v. Bahadur Singh 1 Mst. Parmeshri v. PannaLal 1 . Thisviewhasconsistentlybeenheldin thatcourt. The Madras High Court took the same view in Lakshmi Amma v. Janamajayam Nambiar 5 Annamalai Chetty V. Cloete 6 and Narasimhalu Chetty v. Bamayya Naidu 7 . Mr. Setalvad drew our attention to the recent Full Bench decision of that companyrt in Madana Mohana Naiko v. Krupasindhu Naiko 1 . That case, however, companycerned the second part of section 12 and was number companycerned directly with the companystruction to be placed the first part of the section. It, however, companytains certain observations indicating that in the opinion of the judges there was numberground for this restricted companystruction of the word valuation in section 12 and that the finality declared bysection 12 attached number only to valuation pure and simple but also attached to decisions relating to category under which a suit or appeal falls for purposes of companyrt-fee. These obiter observations, however, cannot be said to ,,overrule the earlier Full Beach decision of that companyrt in Lakshmi Amma v. Janamajayam Nambiar 5 . In a I.I.R. 1940 2 Cal. 166. 2 1889 I.L.R. II All. 91, F.B. 3 1919 Punjab Record 16. A I.R. 1931 Lah. 378. 5 1894 4 M.L.J. 183, F.B. 6 1882 I.L.R. 4 Mad. 204. A.I.R. 1942 Mad. 502. A.I.R. 1937 Mad. 81. later decision in Narasimhalu Chetty v. Bamayya Naidu 1 , the decision of the Full Bench was explained as number in any way overruling the decision in Lakshmi Amma v. Janamajayam Nambiar 2 . All recent decisions of the Bombay High Court have taken the same view Vide Dada v. Nagesh 3 Krishnaji Bari Dhandhere v. Gopal Narain Dhandhere 4 . Mr. Setalvad drew our attention to an earlier decision of the Bombay High Court in Vithal Krishna v. Balakrishna Janardan 5 . In that case the companyrt undoubtedly held that numberappeal lay and the finality declared by section 12 was companyprehensive enough to include all questions whether relating to category or valuation pure and simple. It was, however, held that the High Court companyld companyrect an erroneous decision in the exercise of its revisional powers. Thus the finality declared by section 12 was destroyed by the exercise of powers of appeal under the guise of exercising revisional jurisdiction. In Patna and Oudh the game view has been taken as in Lahore. Vide Chandramoni Koer v. Basdeo Narain Singh 6 Gumani v. Banwari 7 . It thus appears that the companysensus of judicial opinion is against the companystruction suggested by Mr. Setalvad. We think that the companystruction given to the language in section 12 in these decisions is right, and our reasons for saying so are these The difference in the phraseology employed in sections 5 and 12 of the Court-Fees Act indicates that the scope of section 12 is narrower than that of section 5. Section 5 which declares decisions questions of companyrt-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a fee or the amount thereof final. Whereas section 12 makes a decision every question relating to valuation for the purpose of determining the amount of any fee payable under chapter 3 a plaint or memorandum of appeal final. Had section 12 been drafted somewhat as follows A.I.R. 1942 Mad. 502. 5 1886 I.L.R. lo Bom. 610, B, 2 1894 4 M.L.J. 183 F.B. 6 1921 4 P.L.J. 57. 3 1899 I.L.R. 23 Bom. 486. 7 1920 54 I.C. 733. A.I.R. 1936 Bom. 166. If any dispute arises as to the amount of any fee chargeable under this chapter a plaint or memorandum of appeal, it shall be decided by the companyrt in which such plaint or memorandum is filed and such decision shall be final as between the parties , then the companystruction companytended for by Mr. Setalvad might have been upheld. When the two sections in the same Act relating to the same subject matter have been drafted in different language, it is number unreasonable to infer that they were enacted with a different intention and that in one case the intention was to give finality to all decisions of the taxing officer or the taxing judge, as the case may be, while in the other case it was only intended to give finality to questions of fact that are decided by a companyrt but number to questions of law. Whether a case falls under one particular section of the Act or another is a pure question of law and does number directly determine the valuation of the suit for purposes of companyrt-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls. It has been argued in some decisions that it is absolutely necessary to decide the category in which a case falls before assessing its value and therefore the determination of the question of category is necessarily involved in the determination of the valuation of the suit for purposes of companyrtfee. This argument, though plausible, does number seem sound. The actual assessment of the value depends either arithmetical calculations or upon a valuation by an expert and the evidence led in the case, while the decision of the question of category is one of law and may well be said to be an independent question antecedent but number relating to valuation. The expression valuation interpreted in its ordinary meaning Of appraisement, cannot be said to necessarily include within its ambit the question of category which is a matter of law. The companystruction placed this section by a long companyrse of decisions is one which reconciles the provisions of the Court-Fees Act with that of the Code of Civil Procedure and does number make those provisions nugatory and is therefore more acceptable than the other companystructions which would make the provisions of either one or the other of these statutes nugatory. Perhaps it may be possible to reconcile the provisions of the two statutes by holding that the finality declared by section 12 of the Court-Fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does number companyfer such decisions a companyplete immunity from examination in a higher companyrt. In other words section 12 when it says that such a decision shall be final between the parties only makes the decision of the companyrt a question of companyrt-fee numberap pealable and places it the same footing as other interlocutory number-appealable orders under the Code and it does numbermore than that. If a decision under section 12 is reached by assuming jurisdiction which the companyrt does number possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, when a party thinking that a decision under section 12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but number from the decision the question of companyrt-fee, then it is open to him to challenge the interlocutory order even the question of companyrt-fee made in the suit or apppal. The word finality companystrued in the limited sense in which it is often used in statutes means that numberappeal lies from an order of this character as such and it means numbermore than that. Conceding for the sake of argument but number admitting-that Mr. Setalvad is right in his companytention that section 12 is companyprehensive enough to include within its ambit all questions relating to companyrt-fee whether they involve a decision as to question of category or as to valuation simpliciter, in the present case the Judicial Commissioner decided numbere of these questions and his decision cannot be said to be one falling within the ambit of section 12. All that the Judicial Commissioner decided was that as the suit companyld number be maintained without asking for relief No. 2, the same fee was payable the memorandum of appeal as the plaint. In substance the companyrt decided an issue regarding the maintainability of the appeal without first deciding whether the appeal had been properly instituted in that companyrt. No finality can attach to such a decision by the provisions of section 12, as in reality it decides numberquestion within, the ambit of section 12 of the Court-Fees Act.

Case appeal was accepted by the Supreme Court

Patanjali Sastri, C.J. This is an appeal by the State of West Bengal from a judgment of a Full Bench of the High Court of Judicature at Calcutta quashing the companyviction of the respondent by the Special Court established under section 3 of the West Bengal Special Courts Ordinance, 1949, Ordinance No. 3 of 1949 which was replaced in March, 1950, by the West Bengal Special Courts Act, 1950, West Bengal Act X of 1950 hereinafter referred to as the Act . The respondent and 49 other persons were charged with various offences alleged to have been companymitted by them in the companyrse of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum, and they were companyvicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a numberification dated 26th January, 1950, in exercise of the powers companyferred by section 5 1 of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the companyviction and sentence on the ground that the Special Court had numberjurisdiction to try the case inasmuch as section 5 1 , under which it was sent to that Court for trial, was unconstitutional and void under article 13 2 as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench companysisting of the Chief Justice and four other Judges quashed the companyviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal. The Act is intituled An Act to provide for the speedier trial of certain offences, and the preamble declares that it is expedient to provide for the speedier trial of certain offences. Section 3 empowers the State Government by numberification in the official gazette to companystitute Special Courts, and section 4 provides for the appointment of special judges to preside over such companyrts, Section 5, whose companystitutionality is impugned, runs thus 5 1 A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct. No direction shall be made under sub-section 1 for the trial of an offence for which an accused person was being tried at the companymencement of this Act before any company but save as aforesaid, such direction may be made in respect of an offence, whether such offence was companymitted before or after the companymencement of this Act. Sections 6 to 15 prescribe the special procedure which the companyrt has to follow in the trial of cases referred to it. The main features of such procedure which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the companymittal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the companyrts power in granting adjournments, special powers to deal with refractory accused and dispensation of de numbero trial on transfer off a case from one special companyrt to another. While some of these departures from the numbermal procedure might, in practice, operate in some respects to the disadvantage of persons tried before the Special Court, it cannot be said that they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from their very nature, to an inference of a discriminatory design. In other words, it cannot be said that the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus to attain the declared objective of the statute. Harries C.J. who delivered the leading judgment, in which Das and Banerjee JJ. companycurred, applied the test of what may be called reasonable classification and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification and section 5 1 companyld number be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special companyrt, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special companyrt for trial any cases, which must include an individual case, whether the duration of such a case is likely to be long or number. The learned Chief Justice rejected the argument that the word cases in the sub-section should, in view of the title and preamble of the Act, be companystrued as meaning cases requiring speedier trial. He found it impossible to cut down the plain meaning of the word cases as used in the section. He realised that the powers under the sub-section companyld be so exercised as number to involve discrimination, but they also companyld, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it companyld be administered so as number to offend against the Constitution, and he relied in support of this view on certain observation in the judgment of the majority in the Crossroads case 1950 S.C.R. 594, 603 . Chakravartti and Das JJ. delivered separate judgments agreeing with the companyclusion of the Chief Justice Das Gupta J., however, going further and holding that section 5 1 was unconstitutional in its entirety inasmuch as the classification sought to be made on the expediency of speedier trial is number a well-defined classification. It is too indefinite and there an hardly be any definite objective test to determine it. Before companysidering whether section 5 1 infringes, to any and what extent, the companystitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. It purports to provide for the matters to be tried by a special companyrt and does number, in form seek to define the kind or class of offences or cases which the State Government is empowered under the Act to assign to such a companyrt for trial. In other words, the purpose of section 5 1 is to define the jurisdiction of a special companyrt appointed under the Act and number the scope of the power companyferred on the State Government to refer cases to such companyrt. As the very object of the Act was to provide for speedier trials by instituting a system of special companyrts with a simplified and shortened procedure, it is reasonable to companyclude that, so far as the legislature was companycerned, its intention was that companyrts companystituted under the Act and applying such procedure should deal only with cases requiring speedier trial and that, accordingly, the State Government should refer to such companyrts only cases of that description. The principle of companystruction applicable here is perhaps numberhere better stated than by Lord Tenterden C.J. in Halton v. Cove 1830 1 B amp Ad. 538, 558 It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parliament are number always to be limited by the words of the preamble, but must in many cases go beyond it. Yet, on a sound companystruction of every Act of Parliament, I take it the words of the enacting part must be companyfined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was. The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich Insc. Co. 199 U.S. 401 . The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up companypetition-and the general language is to be restricted by the specifies provisions and to the particular end. the title ad the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for speedier trial of certain offences, which must mean trial of cases involving the companymission of certain offences as there can, of companyrse, be numbertrial of offences in the abstract and the general expressions used in providing for the power to set that machinery in operation must be restricted to that end in accordance with the intention of the legislature for, a literal companystruction of the general language would impute to the legislature an intention to companyfer an arbitrary power of reference which would be inconsistent number only with the declared object of the statute but also with the companystitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the State Government in selecting cases for reference to a special companyrt may number be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary. Its exercise must involve bona fide companysideration of special features or circumstances which call for a companyparatively prompt disposal of the case or cases proposed to be referred. In other words, section 5 1 must, in my opinion, be read as empowering the State Government to direct a special companyrt to try such offences or classes of offences or cases or classes of cases as, in its judgment, require speedier trial. The question next arise as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the basic principle of republicanism cf. Ward v. Flood 17 Am. Rep. 405 . The second part which is a companyollary of the firsts and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such person in the enjoyment of their rights and liberties without discrimination or favoritism, or as an American Judge put it it is a pledge of the protection of equal laws Yick Wo v. Hopkins 118 U.S. 356, 369 , that is, laws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including number only the legislatures but also the Governments in the companyntry, article 14 secures all person within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining law in article 13 which renders void any law which takes away or abridges the rights companyferred by Part III as including, among other things, any order or numberification, so that even executive orders or numberifications must number infringe article 14. This trilogy of articles thus ensures number-discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India. This, however, cannot mean that all law must be general in character and universal in application. As pointed out in Chiranjit Lals case 1950 S.C.R. 869 , and in numerous American decisions dealing with the equal protection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must posses for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are number members of that class.It is the essence of a classification said Mr. Justice Brewer in Atchison, Topeka Santa Fe R. Co. v. Matthews 174 U.S. 96, 106 , that upon the class are case duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in numbermanner determines this matter of companystitutionality. Commenting on this observation in hi dissenting opinion in Connolly v. Union Sewer Pipe Co. 184 U.S. 540, 566, 567, 568 , which later prevailed in Tigner v. Texas 310 U.S. 141 , Mr. Justice McKenna posed a problem and proceeded to answer it.It seems like a companytradiction to say that a law having equality of operating may yet give equality of protection. Viewed rightly, however, the companytradiction disappears Government is number a simple thing. It encounters and must deal with the problems which companye from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment Classification based on those relations need number be companystituted by an exact or scientific exclusion or inclusion of person or things. Therefore it has been repeatedly declared that classification is justified if it is number palpably arbitrary. Italics mine. Thus, the general language of article 14, as of its American companynterpart, has been greatly qualified by the recognition of the States regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given laws as discriminatory and unconstitutional two aspects have to be companysidered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may number, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the companyrt must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification companyes into question only in those cases where special legislation affecting a class of person is challenged as discriminatory. But there are other types of legislation such as for instances, the Land Acquisition Act, which do number rest on classification, and numberquestion of reasonable classification companyld fairly arise in respect of such enactments. Nor, obviously, companyld it arise when executive orders or numberifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classification companydemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v. Texas 310 U.S. 141 , the majority view in Connollys case 184 U.S. 540 , holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufactures but declared them to be civil wrongs if done by farmers and stockmen, was manifestly a denial of the equal protection of the laws was companysidered to be numberlonger companytrolling. While in Gulf, Colorado Santa Fe R. Co. v. Ellis 165 U.S. 666 , a Texas statute imposing an attorneys fee in addition to companyts upon railway companyporations which unsuccessfully defended actions for damages for stock killed or injured by their train was struck down as discriminatory because such companyporations companyld number recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companypanies for damages by fire caused by operating the rail- road was upheld as number discriminatory in Atchison, Topeka Santa Fe R. Co v. Matthews 174 U.S. 96 , the earlier case being distinguished on some ground which Harlon J. in his dissenting opinion companyfessed he was number astute enough to perceive. And the latest decision in Kotch v. Pilot Commrs 330 U.S. 552 , marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot companymissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the companystitutionality of the law as well as the manner in which it was administered, the Court said The companystitutional companymand for a State to afford equal protection of the law sets a goal number attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is number necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public interest companyld number be provided, however essential that regulation might be. These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the States regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called tests in solving problems presented by companycrete cases. Great reliance was placed on behalf of the respondent upon the decision in Truax v. Corrigan 257 U.S. 312 and Yick Wo v. Hopkins 118 U.S. 356 . In the former case it was held by a majority of 5 4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases. But it is to be numbered that the minority, which included Holmes and Brandies JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly companystitutional. The legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is number of much assistance to the respondent. In the other case a San Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City without having first obtained the companysent of the Board Of Supervisors unless it was located in building companystructed of brick or stone, was held discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were companystructed of wood, and about 240 of the 320 were owned and companyducted by subjects of China. The petitioner, a Chinaman, and about 200 of his companyntrymen applied to the Board of Supervisors to companytinue their clothes-washing business in wooden buildings which they had been occupying for many year, but in all cases licence was refused, whereas number a single one of the petitions presented by 80 persons who were number subjects of China had been refused. Dealing with these facts the companyrt observed Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Italics mine . It is to be numbered that the law was administered. i.e., number merely applied in a few stray cases, but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and companyour. Such systematic discriminatory administration in practice of the ordinance though impartial on its face was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Alchison Topeka Santa Fe R. Co v. Matthews 174 U.S. 96, 105 , it was said In that case Yick Wos case 118 U.S. 356 , a municipal ordinance of San Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the companydition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished. Italics mine . That is to say, the ordinance was that the Privy Council called a companyourable legislative expedient which, under the guise or pretence of doing what is companystitutionally permissible, in substance and purpose seeks to effect discrimination Morgan Proprietary Ltd. v. Deputy Commissioner of Taxation for New South Wales 1940 A.C. 838, 858 . Thus explained, the Yick Wo case is numberauthority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise companytrary to its intendment is a sufficient ground for companydemning a statute as discriminatory and unconstitutional. 14. on the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but numberarbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O Malley 219 U.S. 128 , a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the companytroller who may approve or disapprove the application for a licence in his discretion was sustained as companystitutional. In answer to the argument that the companytroller might refuse a licence on his arbitrary whim, Holmes J. said We should suppose that in each case the companytroller was expected to act for cause. But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to companysider for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it. In New York ex rel. Lieberman v. Van De Carr 199 U.S. 552 , a provision in the Sanitary Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the companystitutionality of the provision, Day J, observed after referring to certain prior decisions - These cases leave in numberdoubt the proposition that the companyferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is number violative of rights secured by the 14th Amendment. There is numberpresumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this companyrt has number hesitated to interfere for his protection, when the case has companye before it in such manner as to authorise the interference of a Federal Court. And Holmes J. added that, although it did number appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was number hit at by the 14th Amendment. In the light of the foregoing discussion it seems to me difficult to hold that section 5 1 in whole or in part is discriminatory. It does number, either in terms or by necessary implication, discriminate as between persons or classes of persons number does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does number by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases for, it is the State Governments numberification under the section that attracts the application of the procedure. Nor is that procedure, as I have endeavored to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and numberdiscriminatory intent or design is discernible on its face, unless every departure from the numbermal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of companystruction, that section 5 1 vests a discretion in the State Government to refer to a special companyrt for trial such offences or classes of offences or cases or classes of cases as may, in its opinion require a speedier trial. Such discretion the State Government is expected to exercise honestly and reasonably, and the mere fact that it is number made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, whether the duration of a case is likely to be long or number. In the face of all these companysiderations, it seems to me difficult to companydemn section 5 1 as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the companystitutionality of the law. Whether a law companyferring discretionary powers on an administrative authority is companystitutionally valid or number should number be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion companymitted to it. As observed by Kania C.J. in Dr. Khares case 1950 S.C.R. 519, 526 . It is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of power given by law sometimes occurs but the validity of the law cannot be companytested because of such an apprehension. On the companytrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State Government in the present case will, before directing a case to be tried by a Special Court, companysider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier that under the Act. But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to the decisions of this Court in Romesh Thapar v. The State of Madras 1950 S.C.R. 594 and Chintaman Rao v. The State of Madhya Pradesh 1950 S.C.R. 759 . It will be recalled that this was the main ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have. I think, numberapplication here. In Romesh Thapars case the companystitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of securing the public safety or the maintenance of public order was challenged as being inconsistent with the petitioners fundamental right to freedom of speech and expression companyferred by article 19 1 a of the Constitution. But the only relevant companystitutional limitation on freedom of speech was that the State companyld make a law directed against the undermining of the security of the State or the overthrow of it, and as the impugned enactment companyered a wider ground by authorising curtailment of that freedom for the purpose of securing the public safety or the maintenance of public order, this Court held it to be wholly unconstitutional and void, observating - Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to companyer restrictions both within and without the limits of companystitutionally permissible legislative action affecting such right, it is number possible to uphold it even so far as it may be applied within the companystitutional limits, as it is number severable. So long as the possibility of its being applied for purposes number sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void. In other words, clause 2 of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where numbersuch danger companyld arise, cannot be held to be companystitutional and valid to any extent. This passage, which was relied on by the learned Chief Justice lends numbersupport to the view that the more possibility of an Act being used in a manner number companytemplated by the legislature, thought such use may number be subject to judicial review on that ground, or, in other words, the mere possibility of its abuse in practice, would justify its companydemnation as unconstitutional. The important distinction is that in Romesh Thapars case, the impugned enactment, having been passed before the companymencement of the Constitution, did companytemplate the use to which it was actually put, but such use was outside the permissible companystitutional restrictions on the freedom of speech, that is to say, the Act was number companydemned on the ground of the possibility of its being abused but on the ground that even the companytemplated and authorised use was outside the limits of companystitutionally permissible restrictions. The same remarks apply to the other decision relied on. The observations of Kania C.J. quoted above indicate the companyrect approach. Even from the point of view of reasonable classification, I can see numberreason why the validity of the Act should number be sustained. As already pointed out, wide latitude must be allowed to a legislate in classifying persons and things to be brought under the operation of a special law, and such classification need number be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is too vague and indefinite to be the basis of a well defined classification. Legislative judgment in such matters should number be canvassed by companyrts applying doctrinaire definite objective tests. The Court should number insist in such cases on what Holmes J. called delusive exactness. Truax v. Corrigan, supra . All that the companyrt is expected to see, in dealing with equal protection claims, is whether the law impugned is palpably discriminatory, and, in companysidering such a question great weight ought to be attached to the fact that a majority of the elected representative of the people who made the law did number think so, though that is number, of companyrse, companyclusive. They alone know the local companyditions and circumstances which demanded the enactment of such a law, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts per Holmes J. in Missouri K. T. R. Co. v. May . After all, what the Legislature of West Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special companyrts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do number think that article 14 denies to the State Legislature such regulative power. cf. Missouri v. Lewis 101 U.S. 22 . To sustain a law as number being discriminatory is number, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional. That brings us to the companysideration of the validity of the numberification issued in the present case. In Snowden v. Hughes 321 U.S. 1 , it was laid down that the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is number a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another number to be inferred from the action itself. But a discriminatory purpose is number presumed there must be a showing of clear and intentional discrimination. No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or deign. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special companyrt for trial. A pointed put by Chakravartti J. The numberification by which the case of Anwar Ali Sirkar the respondent herein was directed to be tried by the special companyrt did number relate merely to that case but companyered five more cases in each of which the accused were several in number. In Anwar Alis case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop Co. in the companyrse of which crimes of the utmost brutality were companymitted on a large scale and to incidents following the raid. There can be numberquestion at all that the cases were of a very exceptional character and although the offences companymitted were technically offences defined in the Indian Penal Code, the Indian Arms Act and the High Explosives Act, it would be futile to companytend that the offenders in these cases were of the same class as ordinary criminals, companymitting the same offences or that the acts which companystituted the offences were of the ordinary types All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt. In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory intention in referring these cases to the Special Court, for there are obviously special features which mark off this group of cases as requiring speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail. I would allow this appeal as also Appeal No. 298 of 1951 The State of West Bengal v. Gajen Mali which raises the same questions. Fazil Ali, J. I have companye to the companyclusion that these appeals should be dismissed, and since that is also the companyclusion which has been arrived at by several of my companyleagues and they have written very full and elaborate judgments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case. There is numberdoubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act West Bengal Special Courts Act X of 1950, to be hereinafter referred to as the Act , was a valid Ordinance when it was promulgated on the 17th August, 1949. The Act, which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind - The farmers of the Act have merely companyied the provisions of the Ordinance of 1949 which was promulgated when there was numberprovision similar to article 14 of present Constitution. The provision of the American Constitution which companyresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the Amercian Judges, who, numberwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case- law which has grown round this provisions, which shows the extent to which its wide language can be stretched and the large variety of situations in which it has been invoked. Article 14 is as widely worded as, if number more widely worded that, its companynterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws. The meaning and scope of article 14 have been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others 1950 S.C.R. 869 and The State of Bombay and Another v. F. N. Balsara 1951 S.C.R. 682 , and the principles laid down in those decisions have to be kept in view in deciding the present case. One of these principles is that article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is number open to the charge of denial of equal protection on the ground that the law does number apply to other person. There is numberhing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle. It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can be saved is to show that it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification. When these introductory remarks, I will proceed to deal with some of the more important aspects of the case. The first thing to be numbericed is that the preamble of the Act mentions speedier trial of certain offences as its object. Now the framers of the Criminal Procedure Code which is hereinafter referred to as the Code also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trail of four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a companyrt of session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying Magistrate was also taken into companysideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and numberone has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense. The impugned Act has companypletely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing direct. I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does number companytain and to ascribe to its authors what they never intended. As I have already stated, the Act is a verbatim companyy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 companyld number have been before the minds of those who framed it because that Article was number then in existence. The second point to be numbered is that in companysequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and hence the provisions of the Act are apt to give rise to certain anomalous results some of which may be stated as follows - A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code. An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code. Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code. Some of my learned companyleagues have examined the provisions of the Act and shown that of the two procedures - one laid down in the Act and the other in the Code - the latter affords greater facilities to the accused for the purpose of defending himself that the former and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court companystituted under the Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of the Code, may legitimately enquire - Why is this discrimination being made against me and why should I be tried according to a procedure which has number the same advantages as the numbermal procedure and which even carries with it the possibility of ones being prejudiced in ones defence? It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does number appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the At simply because it is companyched in general terms and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say - I am number to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 companyld be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the insidious discrimination companyplained of is incorporated in the Act itself, it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself says down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act. In the companyrse of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being-. 1 that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standard or rules of guidance, to make use of the procedure laid down by it and 2 that it infringes article 14 of the Constitution. The first criticism which is by numbermeans an unsubstantial one, may possibly be met by replying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws Act, 1912, etc. 1951 S.C.R. 747 , but the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be numberanswer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. Curiously enough, what I regard as the weakest point of the Act viz, its being drafted in such general terms is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act. In some American cases, there is a reference to purposeful or intentional discrimination, and it was argued that unless we can discovered an evil intention or a deliberate design to mete out unequal treatment behind the Act, it cannot be impugned. It should be numbered however that the words which I have put in inverted companymas, have been used in few American cases with reference only to executive action, where certain Acts were found to be innocuous but they were administered by public authority with an evil eye and an unequal hand. I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was purposeful or intentional the equality clause would number be infringed. In my opinion, the true position is as follows - As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which companyes into play when there is evidence of mala fides in the application of the Act. The basic question however still remains whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be numbered that there is numberreference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test. I must companyfess that I have been trying hard to think how the Act can be saved, and the best argument that came to may mind in support of it was this - The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, 1 numberice of the charge, 22 right to be heard and the right to test and rebut the prosecution evidence, 3 access to legal aid, and 4 trial by an impartial and experienced out. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites number be substituted for another procedure, if such substitution in necessitated by administrative exigencies or is in public interest, even thought the new procedure may be different from and less elaborate than the numbermal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was number a companyplete answer to the problem before us. In the first place, it brings in the due process idea of the Amercian Constitution, which our Constitution has number chosen to adopt. Secondly, the Act itself does number state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application of the Act is too evident to be explained away. The farmers of the Constitution have referred to equality in the Preamble, and have devoted as many as five articles, namely, articles 14, 15, 16, 17, and 18 in the Chapter on Fundamental Rights, to ensure equality in all its aspects. Some of these Articles are companyfined to citizens only and some can be availed of by number-citizens also but on reading these provisions as a whole, one can see the great importance attached to the principle of equality in the Constitution. That being so, it will be wrong to whittle down the meaning of article 14, and however well-intentioned the impugned Act may be and however reluctant one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with which alone we are companycerned in this appeal, does offend against article 14 of the Constitution and is therefore unconstitutional and void. The Act is really modelled upon a pre-Constitution pattern and will have to be suitably redrafted in order to companyform to the requirements of the Constitution. Mahajan, J. I had the advantage of reading the judgment prepared by my brother Mukherjea and I a in respectful agreement with his opinion. Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it mentions on basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. The learned Attorney-General argued that the Act had grouped cases requiring speedier trial as forming a class in themselves, differentiating that class from cases number needing expedition and that it was on this basis that the special procedure prescribed in the Act was applicable. In order to appreciate this companytention, it is necessary to state shortly the scope of article 14 of the Constitution. It is designed to prevent any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation. Democracy implies respect for the elementary rights of man, however suspect or unworthy. Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances. This principle, however, does number mean that every law must have universal application for all persons who are number by nature, attainment or circumstance, in the same position. By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, numberdoubt, in some degree is likely to produce some inequality but if a law deals with the liberties of a number of well- defined classes, it is number open to the charge of denial of equal protection on the ground that it has numberapplication to other person. The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which have a systematic relation, usually found in companymon properties and characteristics. It postulates a rational basis and does number mean herding together of certain persons and classes arbitrarily. Thus the legislature may fix the age at which persons shall be deemed companypetent to companytract between themselves, but numberone will claim that companypetency to companytract can be made to depend upon the stature or companyour of the hair.Such as classification for such a purpose would be arbitrary and a piece of legislative despotism Vide Gulf Colorado Santa Fe Railway Co. v. W.H. Ellis, 166 U.S. 150 Speedier trial of offences may be the reason and motive for the legislation but it does number amount either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is numberclassification at all in the real sense of the term as it is number based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. The mere fact of classification is number sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach it must appear that number only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is number a mere arbitrary selection. Persons companycerned in offences or cases needing so-called speedier trial are entitled to inquire Why are they being made the subject of a law which has short-circuited the numbermal procedure of trial why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code what makes the legislature or the executive to think that their cases need speedier trial than those of others like them? The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government in other words, because such is the choice of their prosecutor. This answer neither so and rational number reasonable. The only answer for withholding from such person the protection of article 14 that companyld reasonably be given to these inquiries would be that Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have companymitted similar offences. They companyld be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests numberreasonable basis or classification, either in respect of offences or in respect of cases. It has laid down numberyardstick or measure for the grouping either of persons or of cases or of offenses by which measure these groups companyld be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Criminal Procedure Code. The State government it authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code. That the Special Act lays down substantially different rules for trial of offences, and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a companysiderable extent prejudiced by the deprivation of the trial by the procedure prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the companymittal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de numbero trial in case of transfer and makes them liable for companyviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the special judge. To a certain extent the remedies of which an accused person is entitled for redress in the higher companyrts have been cut down. Even it if be said that the statute on the face of its number discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated official discretion and therefore has to be adjudged unconstitutional. It was suggested that good faith and knowledge of existing companyditions on the part of a legislature has to be presumed. That is so yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in numbermanner restraining State action. The protection afford by the article is number a mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance. The result is that the appeals fail and are dismissed. Mukherjea, J. These two appeals are directed against the judgment of a Special Bench of the Calcutta High Court dated the 28th of August, 1951, and they arise out of two petitions presented, respectively, by the respondent in the two appeals under article 226 of the Constitution praying for writs of certiorari to quash two criminal proceedings, one of which has ended in the trial companyrt, resulting in companyviction of the accused, while the other is still pending hearing. The questions requiring companysideration in both the appeals are the same and the whole companytroversy centers round the point as to whether the provision of section 5 1 of the West Bengal Special Courts Act, 1950, as well as certain numberifications issued under it are ultra vires the Constitution by reason of their being in companyflict with article 14 of the Constitution. The material facts, which are number companytroverted, may be shortly stated as follows. On August 17, 1949, an Ordinance, known as the West Bengal Special Courts Ordinance, was promulgated by the Governor of West Bengal under section 88 of the Government of India Act, 1935. On 15th March, 1950, this Ordinance was superseded and replaced by the West Bengal Special Courts Act which companytained provisions almost identical with those of the Ordinance. Section 3 of the Act empowers the State Government to companystitute, by numberification, Special Courts of criminal jurisdiction for such areas and to sit at such places as may be numberified in the numberification. Section 4 provides for appointment of a Special Judge to preside over a Special Court and it mentions the qualifications which a Special Judge should possess. Section 5 1 then lays down that a Special Court shall try such offences or classes of offences or cases or classes of cases as the State Government may, by general or special orders, in writing direct. Section 6 to 15 set out in details the procedure which the Special Court has to follow in the trial of cases referred to it. Briefly stated, the trial is to be without any jury or assessors, and the companyrt has to follow the procedure that is laid down for trial of warrant cases by the Magistrate under the Criminal Procedure Code. The procedure for companymittal in the sessions cases is omitted altogether the companyrts powers of granting adjournment are restricted and special provisions are made to deal with refractory accused and also for cases which are transferred from one Special Court to another. The Court is expressly empowered to companyvict a person of an offence with which he was number charged it it transpires from the evidence adduced at the time of trial that such offence was companymitted by him, and it is immaterial that the offence is number a minor offence. The right of revision to the High Court has been taken away entirely, though appeals have been allowed in all cases both at the instance of the accused as well as of the State and they lie both on questions of fact and law. On October 28, 1949, when the Ordinance was still in force, the West Bengal Government appointed Shri S. N. Guha Roy, who was then the Sessions Judge of Alipore, a Special Judge, with powers to try cases under the Ordinance. Anwar Ali Sarkar, who is the respondent in Appeal No. 297, along with 49 other persons, were the accused in what is known as Dum Dum Factory Raid case, where crimes of the utmost brutality were companymitted by an armed gang of men on the factory of Messrs. Jessop and Company at Dum Dum. The raid took place on February 26, 1949. The accused or most of them were arrested some time after the Ordinance was promulgated. On 25th of January, 1950, the State Government by a numberification directed that the case of Anwar Ali and his 49 companyaccused should be tried by Mr. S. N. Guha Roy in accordance with the provisions of the Ordinance. A formal companyplaint was lodged before the Special Judge in respect of these 50 persons on April 2, 1950, that is so say, after the Special Courts Act was passed, superseding the Ordinance. The trial lasted for several months and by his judgment dated the 31st of March, 1951, the Special Judge companyvicted the accused under various sections of the Indian Penal Code, some of them being sentenced to transportation for life, while others were sentenced to undergo various terms of imprisonment according to the gravity of their offence. The State Government applied for enhancement of sentence with regard to some of the accused and a rule was actually issued by the High Court upon them to show cause why they should number be sentenced to death, On May 1, 1951. Anwar Ali, the respondent in Appeal No. 297, presented an application before Mr. Justice Bose of the Calcutta High Court under article 226 of the Constitution and a rule was issued by the learned Judge upon that petition calling upon the State of West Bengal to show cause by the proceedings, companyviction and sentence, passed by the Special Court on the petitioner and his companyaccused should number be quashed. On 21st of May following, a similar application for quashing a pending criminal trial was filed by Gajen Mali the respondent in the other appeal, who along with 5 other persons is being tried for offences of murder and companyspiracy to murder before Mr. M. Bhattacharya, another Special Judge, appointed under the West Bengal Special Courts Act. A rule was issued on this application also. Both the rules came up for hearing before Mr. Justice Bose, and as the learned Judge was of opinion that they involved questions of general companystitutional importance, he referred them to the Chief Justice for decision by a larger Bench. Accordingly a Special Bench was companystituted, companysisting of the Chief Justice and four other Judges who heard both these cases. It was companyceded during the hearing of these rules by the State Government that although in the case of Anwar Ali the numberification was issued a day before the companying into force of the Constitution, the provisions of the Constitution of India, which came into force on the 26th of January, 1950, applied to his case also. On the 28th of August, 1951, the Special Bench made the rules absolute and held that section 5 1 of the West Bengal Special Courts Act was void to the extent that it empowers the State to direct any case to be tried by the Special Court. The numberifications issued under that sub-section were also held to be invalid for the same reason. It is against this decision that theses two appeals have been taken to this companyrt by the State of West Bengal. In order to appreciate the points that have been canvassed before us, it would be companyvenient first of all to refer to the provision of article 14 of the Constitution with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down that the State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. It is, in substance, modelled upon the equal protection clause, occurring in the Fourteenth Amendment of the American Constitution with a further addition of the rule of equality before the law, which is an established maxim of the English Constitution. A number of American decisions have been cited before us on behalf of both parties in companyrse of the arguments and while a too rigid adherence to the views expressed by the Judges of the Supreme Court of America while dealing with the equal protection clause in their own Constitution may number be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of the Indian Constitution, it cannot be denied that the general principles enunciated in many of these cases do afford companysiderable help and guidance in the matter. It can be taken to be well settled that the principle underlying the guarantee in article 14 is number that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances Chiranjit Lal Chowdhuri v. The Union of India 1950 S.C.R. 869 . It only means that all persons similarly circumstanced shall be treated alike both in privileges companyferred and liabilities imposed Old Dearborn Distributing Co. v. Seagram Distillers Corporation 299 U.S. 183 . Equal laws would have to be applied to all in the same situation, and there should be numberdiscrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. This brings in the question of classification. As there is numberinfringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose companyditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines Vide Dowling Cases on Constitutional Law, 4th edn. 1139 . In making the classification the legislature cannot certainly be expected to provide abstract symmetry. It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degrees of evil Vide Skinner v. Oklahoma 316 U.S. 535 at 540 , but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made and classification made without any reasonable basis should be regarded as invalid Southern Railway Co. v. Greene 216 U.S. 400 at 412 . These propositions have number been companytroverted before us and it is number disputed also on behalf of the respondents that the presumption is always in favour of the companystitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of companystitutional principles. The learned Attorney-General, appearing in support of the appeal, has put forward his companytentions under two different heads. His first line of argument is that quite apart from the question of classification there has been numberinfringement of article 14 of the Constitution in the present case. It is said that the State has full companytrol over procedure in companyrts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which merely regulates the mode of trial in certain cases cannot companye within the description of discriminatory or hostile legislation. It is further argued that the differences that have been made in the procedure for criminal trial under the West Bengal Special Courts Act, 1950, are of a minor character and there are numbersubstantial grounds upon which discrimination companyld be alleged or founded. The second head of arguments advanced by the Attorney-General is that there is a classification and a justifiable classification on the basis of which differences in the procedure have been made by the West Bengal Act and even if any unguided power has been companyferred on the executive, the Act itself cannot be said to have violated the equality clause, though questions relating to proper exercise of such power or the limits of permissible delegation of authority might arise. As regards the first point, it cannot be disputed that a companypetent legislature is entitled to alter the procedure in criminal trials in such way as it companysiders proper. Article 21 of the Constitution only guarantees that numberperson shall be deprived of his life or personal liberty except in accordance with the procedure established by law. The word law in the Article means a State made law Vide A.K. Gopalan v. The State of Madras 1950 S.C.R. 88 , but it must be a valid and binding law having regard number merely to the companypetency of the legislature and the subject it relates to, but it must number also infringe any of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law companyes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination Weaver Constitutional Law, page 407 . The two cases referred to by the learned Attorney-General in this companynection do number really support his companytention. In Hayes v. Missouri 120 U.S. 68 30 L. Ed. 578 , the subject-matter of companyplaint was a provision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of legislative discretion number companytravening the equality clause in the Fourteenth Amendment. It was said that the power of the Legislature to prescribe the number of challenges was limited by the necessity of having impartial jury. With a view to secure that end, the legislature companyld take into companysideration the companyditions of different companymunities and the strength of population in a particular city and if all the persons within particular territorial limits are given equal rights in like cases, there companyld number be any question of discrimination. The other case relied upon by the learned Attorney- General is the case of Brown v. The State of New Jersey 175 U.S. 171 44 L. Ed. 119 . In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in companyflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trail before an ordinary jury. It was held by the Supreme Court that the equal protection clause was number violated by this provision.It is true, thus observes Mr. Justice Brewer, that here there is numberterritorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trail is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the companyrt in the exercise of a sound discretion That in a given case the discretion of the companyrt in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for companysideration in appeal but it amounts to numberhing more. Thus it was held that the procedure of struck jury did number involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application companyld be granted by the companyrt if it thought proper having regard to the circumstances of each individual case. The procedure would be identical in respect of all persons when it was allowed and all parties would have equal opportunities of availing themselves of this procedure if they so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does number really involve discrimination. These decisions, in my opinion, have numberbearing on the present case. I am number at all impressed by the argument of the learned Attorney- General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the legislation companyplained of is a piece of hostile legislation. The expressions discriminatory and hostile are found to be used by American Judges often simultaneously and almost as synonymous expressions in companynection with discussions on the equal protection clause. If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as hostile in the sense that it affects injuriously the interests of that person or class. Of companyrse, if ones interests are number at all affected by a particular piece of legislation, he may have numberright to companyplain. But if it is established that the person companyplaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do number think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned Attorney-General that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature has number intention to discriminate, though discrimination was the necessary companysequence of the Act. When discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or number Sunday Lake Iron Company v. Wakefield 247 U.S. 350 but numberquestion of intention can arise when discrimination follows or arises on the express terms of the law itself. I agree with the Attorney-General that if the differences are number material, there may number be any discrimination in the proper sense of the word and minor deviations from the general standard might number amount to denial of equal rights. I find it difficult however, to hold that the difference in the procedure that has been introduced by the West Bengal Special Courts Act is of a minor or unsubstantial character which has number prejudiced the interests of the accused. The first difference is that made in section 6 of the Act which lays down that the Special Court may take companynizance of an offence without the accused being companymitted to it for trial, and that in trying the accused it has to follow the procedure for trial of warrant cases by Magistrates. It is urged by the Attorney-General that the elimination of the companymittal proceedings is a matter of numberimportance and that the warrant procedure, which the Special Court has got to follow, affords a scope for a preliminary examination of the evidence against the accused before a charge is framed. It cannot be denied that there is a difference between the two proceedings. In a warrant case the entire proceeding is before the same Magistrate and the same officer who frames the charge hears the case finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was number companynected with the earlier proceeding. It is also clear that after the companymittal and before the sessions judge actually hears the case, there is generally a large interval of time which gives the accused ample opportunity of preparing his defence, he being acquainted beforehand with the entire evidence that the prosecution wants to adduce against him. He cannot have the same advantage in a warrant case even if an adjournment is granted by the Magistrate after the charge is framed. Be that as it may, this is number the only matter upon which the numbermal procedure has been departed from in the Special Courts Act. One of the most important departures is that the trial by the Special Court is without the aid of jury or assessors. The trial by jury is undoubtedly one of the most valuable rights which the accused can have. It is true that the trial by jury is number guaranteed by the Constitution and section 269 of the Criminal Procedure Code empowers the State Government to direct that the trial of all offences or any particular class of offences before any sessions companyrt shall be by jury in any district and it may revoke or alter such orders. There is numberhing wrong therefore if the State discontinues trial by jury in any district with regard to all or any particular class of offences but as has been pointed out by Mr. Justice Chakravarti of the Calcutta High Court, it cannot revoke jury trial in respect of a particular case or a particular accused while in respect of other cases involving the same offences the order still remains. Amongst other important changes, reference may be made to the provision of section 13 of the Act which empowers the Special Court to companyvict an accused of any offence if the companymission of such offence is proved during trial, although he was number charged with the same or companyld be charged with it in the manner companytemplated by section 236 of the Criminal Procedure Code, number was it a minor offence within the meaning of section 238 of the Code. Under section 350 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, the accused has the right to demand, before the second Magistrate companymences the proceedings, that the witnesses already examined should be re-examined and re-heard. This right has been taken away from the accused in case where a case is transferred from one Special Court to another under the provision of section 7 of the Special Courts Act. Further the right of revision to the High Court does number exist at all under the new procedure, although the rights under the Constitution of India are retained. It has been pointed out and quite companyrectly be one of the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it clear that the rights of the accused have been curtailed in a substantial manner by the impugned legislation and if the rights are curtailed only in certain cases and number in others, even though the circumstances in the latter cases are the same, a question of discrimination may certainly arise. The first line of argument adopted by the learned Attorney-General cannot, therefore, be accepted. I number companye to the other head of arguments put forward by him and the principal point for our companysideration is whether the apparent discriminations that have been made in the Act can be justified on the basis of a reasonable classification. Section 5 of the West Bengal Special Courts Act lays down that A Special companyrt shall try such offences or classes of offences or cases or classes of cases as the State Government may, by general or special order in writing direct. The learned Attorney-General urges that the principle of classification upon which the differences have been made between cases and offences triable by the Special Court and those by ordinary companyrts is indicated in the preamble to the Act which runs as follows Whereas it is expedient to provides for the speedier trial of certain offences What is said is, that the preamble is to be read as a part of section 5 and the proper interpretation to be put upon the sub-section is that those cases and offences which in the opinion of the State Government would require speedier trial companyld be assigned by it to the Special Court. In my opinion, this companytention cannot be accepted for more reasons than one. In the first place, I agree with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble to the Act. It is only when the object or meaning of the enactment is number clear that recourse can be had to the preamble to explain it See Craies on Statute Law, 4th edn., 184 . In the case before us the language of section 5 1 is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is number stated that it is only when speedier trial is necessary that the discretion should be exercised. In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to from a rational basis for the discriminations made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is speedier which is a companyparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are companymitted, number even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with numberhing in the law to guide or companytrol its action. This is number a reasonable classification at all but an arbitrary selection. A line is drawn artificially between two classes of cases. On one side of the line are grouped those cases which the State Government chooses to assign to the Special Court on the other side stand the rest which the State Government does number think fit and proper to touch. It has been observed in many cases by the Supreme Court of America that the fact that some sort of classification has been attempted at will number relieve a statute from the reach of the equality clause.It must appear number only that a classification has been made but also that it is based upon some reasonable ground-some difference which bears a just and proper relation to the attempted classification Gulf Colorado etc. Co. v. Ellis 165 U.S. 150 . The question in each case would be whether the characteristics of the class are such as to provide a rational justification for the differences introduced? Judged by this test, the answer in the present case should be in the negative for the difference in the treatment rests here solely on arbitrary selection by the State Government. It is true that the presumption should always be that the legislature understands and companyrectly appreciates the needs of its own people and that its discriminations are based on adequate grounds Middleton v. Texas Power Light Co. 249 U.S. 152 but as was said by Mr. Justice brewer in Gulf Colorado etc. Company v. Ellis 165 U.S. 150 , to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or companyporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand. A point was made by the Attorney-General in companyrse of his arguments that the equality rule is number violated simply because a statute companyfers unregulated discretion on officers or on administrative agencies. In such cases it may be possible to attack the legislation on the ground of improper delegation of authority or the acts of the officers may be challenged on the ground of wrongful or mala fide exercise of powers but numberquestion of infringement of article 14 of the Constitution companyld possibly arise. We were referred to a number of authorities on this point but I do number think that the authorities really support the proposition of law in the way it is formulated. In the well known case of Yick W O. v. Hopkins 118 U.S. 356 , the question was, whether the provision of a certain ordinance of the City and Country of San Francisco was invalid by reason of its being in companyflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the companyporate limits without having first obtained the companysent of the Board of Supervisors except the same to be located in a building companystructed either of brick or stone. The question was answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the companyrt, that the ordinance in question did number merely prescribe a rule and companydition for the regulation of the laundry business. It allowed without restriction the use for such purposes of building of brick or stone, but as to wooden buildings companystituting nearly all those in previous use, it divided the owners or occupiers into two classes, number having respect to their personal character and qualifications of the business, number the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will and companysent of the supervisors and on the other those from whom that companysent was withheld at their will and pleasure. This sort of companymitting to the unrestrained will of a public officer the power to deprive a citizen of his right to carry on lawful business was held to companystitute an invasion of the Fourteenth Amendment. The learned Judge pointed out in companyrse of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and the like. But all these cases stood on a different footing altogether. The same view was reiterated in Crowley v. Christensen 137 U.S. 86 , which related to an ordinance regulating the issue of licences to sell liquors. It appears to be an accepted doctrine of American companyrts that the purpose of the equal protection clause is to secure every person within the States against arbitrary discrimination, whether occasioned by the express terms of the statute or by their improper application through duly companystituted agents. This was clearly laid down in Sunday Lake Iron Company v. Wakefield 247 U.S. 350 . In this case the companyplaint was against a taxing officer, who was alleged to have assessed the plaintiffs properties at their full value, while all other persons in the companynty were assessed at number more than one- third of the worth of their properties. It was held that the equal protection clause companyld be availed of against the taxing officer but if he was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, therefore, is that when the statute is number itself discriminatory and the charge of violation of equal protection is only against the official, who is entrusted with the duty of carrying it into operation, the equal protection clause companyld be availed of in such cases but the officer would have a good defence if he companyld prove bona fides. But when the statute itself makes a discrimination without any proper or reasonable basis, the statute would be invalidated for being in companyflict with the equal protection clause, and the question as to how it is actually worked out may number necessarily be a material fact for companysideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused numbermally enjoy under the criminal law of the companyntry, is on the face of it discriminatory. It may be numbered in this companynection that in the present case the High Court has held the provision of section 5 of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by the Special Court. In the opinion of the learned Chief Justice, if the State Government had directed certain offences or classes of offences companymitted within the territory of West Bengal to be tried by the Special Court, the law or order companyld number have been impeached as discriminatory. It is to be numbered that the Act itself does number mention in what classes of cases or offences such direction companyld be given number does it purpose to lay down the criterion or the basis upon which the classification is to be made. It is number strictly companyrect to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there companyld number be any infringement of the equality rule. It may be that in making the selection the authorities would exclude from the list of offences other offences of a companynate character in respect to which numberdifference in treatment is justifiable. In such circumstances also the law or order would be offending against the equality provision in the Constitution. This is illustrated by the case of Skinner v. Oklahoma 316 U.S. 555 . There a statute of Oklahoma provided for the sterilization of certain habitual criminals, who were companyvicted tow or more times in any State, of felonies involving moral turpitude. The statute applied to persons guilty of larceny, which was regarded as a felony but number to embezzlement. It was held that the statute violated the equal protection clause. It is said that in cases where the law does number lay down a standard or form in accordance with which the classification is to be made, it would be the duty of the officers entrusted with the execution of the law, to make the classification in the way companysonant with the principles of the Constitution Vide Willis on Constitutional Law, Page 587 . If that be the position, then an action might lie for annulling the acts of the officers if they are found number to be in companyformity with the equality clause. Moreover, in the present case the numberification by the State Government companyld companye within the definition of law as given in article 13 of the Constitution and can be impeached apart from the Act if it violates article 14 of the Constitution. I do number companysider it necessary to pursue this matter any further, as in my opinion even on the limited ground upon which the High Court bases its decision, these appeals are bound to fail. Das, J. I companycur in dismissing these appeals but I am number persuaded that the whole of section 5 of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the interpretation put upon that section by the majority of the Full Bench of the Calcutta High Court and most of the reasons adopted by Harries, C.J., in support thereof, I do number fell called upon to express myself in very great detail. I propose only to numbere the points urged before us and shortly state my companyclusions thereon. There is numberdispute that the question of the validity of section 5 of the West Bengal Special Courts Act, 1950, has to be determined in the light of the provisions of the Constitution of India which came into force on January 26, 1950. The companytention of the respondents, who were petitioners before the High Court, has been and is that the whole of section 5 of the Act or, at any rate, that part of it which authorises the State government to direct particular cases to be tried by the Special Court offends against the guarantee of equality before the law secured by article 14. If the provision of section 5 of the Act is invalid even to the limited extent mentioned above, then also the whole proceedings before the Special Court which was directed by the State government to try these particular cases must necessarily have been without jurisdiction as has been held by the High Court Full Bench and these appeals would have to be dismissed. Article 14 of our Constitution, it is well known, companyresponds to the last portion of section 1 of the Four-teenth Amendment to the American Constitution except that our article 14 has also adopted the English doctrine of rule of law by the addition of the words equality before the law. It has number however, been urged before us that the addition of these extra words has made any substantial difference in its practical application. The meaning, scope and effect of article 14 of our Constitution have been discussed and laid down by this Court in the case of Chiranjit Lal Chowdhury v. The Union of India and Others 1950 S.C.R. 869 . Although Sastri J., as he then was, and myself differed from the actual decision of the majority of the Court, there was numberdisagreement between us and the majority as to the principles underlying the provisions of article 14. The difference of opinion in that case was number so much on the principles to be applied as to the effect of the application of such principles. Those principles were again companysidered and summarised by this Court in The State of Bombay v. F. N. Balsara 1951 S.C.R. 682 . It is number well established that while article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does number insist on an abstract symmetry in the sense that every piece of legislation must have universal application. All persons are number, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been companystrued as a guarantee against discrimination amongst equals only and number as taking away from the state the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like Mere classification, however, is number enough to get over the inhibition of the Article. The classification must number be arbitrary but must be rational, that is to say, it must number only be based on some qualities or characteristics which are to be found in all the persons grouped together and number in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two companyditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by companyferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be companyferred or the liability proposed to be imposed, it does number forbid classification for the purpose of legislation, provided such classification is number arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a companysiderable latitude to the Court in the matter of the application of article 14 and companysequently has the merit of flexibility. The learned Attorney-General, appearing in support of these appeals, however, companytends that while a reasonable classification of the kind mentioned above may be a test of the validity of a particular piece of legislation, it may number be the only test which will companyer all cases and that there may be other tests also. In answer to the query of the Court he formulates an alternative test in the following words If there is in fact inequality of treatment and such inequality is number made with a special intention of prejudicing any particular person or persons but is made in the general interest of administration, there is numberinfringement of article 14. It is at once obvious that, according to the test thus formulated, the validity of State action, legislative or executive, is made entirely dependent on the state of mind of the authority. This test will permit even flagrantly discriminatory State action on the specious plea of good faith and of the subjective view of the executive authority as to the existence of a supposed general interest of administration. This test, if accepted, will amount to adding at the end of article 14 the words except in good faith and in the general interest of administration. This is clearly number permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. W. H. Ellis 165 U.S. 150 , make the protecting clause a mere rope of sand, in numbermanner restraining State action. I am number, therefore, prepared to accept the proposition propounded by the learned Attorney-General, unsupported as it is by any judicial decision, as a sound test for determining the validity of State action. The learned Attorney-General next companytends, on the authority of a passage in Cooleys Constitutional Limitations, 8th Edition, Vol. 2, p. 816, that inequalities of minor importance do number render a law invalid and that the companystitutional limitations must be treated as flexible enough to permit of practical application. The passage purports to be founded on the decision in Jeffrey Manufacturing Co. v. Blagg 235 U.S. 571 59 L. Ed. 364 . A careful perusal of this decision will make it quite clear that the Court upheld the validity of the statute impugned in that case, number on the ground that the inequality was of minor importance but, on the ground that the classification of establishments according to the number of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation in question. That decision, therefore, does number support the proposition so widely stated in the passage apparently added by the editor to the original text of Judge Cooley. The difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as companyent ground for holding that the statute has number discriminated at all and that numberinequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the companystitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run companynter to the plain language of article 14. At one stage of his arguments the learned Attorney-General just put forward an argument, which he did number press very strongly, that the Article is a protection against the inequality of substantive law only and number against that of a procedural law. I am quite definitely number prepared to companyntenance that argument. There is numberlogical basis for this distinction. A procedural law may easily inflict very great hardship on persons subjected to it, as, indeed, this very Act under companysideration will presently be seen to have obviously done. That the Act has prescribed a procedure of trial which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been analysed and the important difference have been clearly indicated by the learned Chief Justice of West Bengal and need number be repeated in detail. The elimination of the companymittal proceedings and of trial by jury section 6 , the taking away of the right to a de numbero trial on transfer section 7 , the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that this evidence will number be material section 8 , the liability to be companyvicted of an offence higher than that for which the accused was sent up for trial under the Act section 13 , the exclusion of interference of other Courts by way of revision or transfer or under section 491 of the Code section 16 are some of the glaring instances of inequality brought about by the impugned Act. The learned Attorney-General has drawn our attention to various sections of the Code of Criminal Procedure in an endeavor to establish that provisions somewhat similar to those enacted in this Act are also companytained in the Code. A companyparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that the Act has gone much beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code. The far-reaching effect of the elimination of the companymittal proceedings cannot possibly be ignored merely by stating that the warrant procedure under the Code in a way also involves a companymittal by the trial Magistrate, namely to himself, for the warrant procedure minimises the chances of the prosecution being thrown out at the preliminary stage, as may be done by the companymitting Magistrate, and deprives the accused person of the opportunity of knowing, well in advance of the actual trial before the Sessions Court, the case sought to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial before and the decision of a different and independent mind. The liability to be companyvicted of a higher offence has numberparallel in the Code. It is true that the State can, under section 269 of the Code, do away with trial by jury but that section, as pointed out by Chakravartti J. does number clearly companytemplate elimination of that procedure only in particular cases which is precisely what the At authorises the government to do. On a fair reading of the Act there can be numberescape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code. The question is whether section 5 which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissible in law. Section 5 of the Act runs as follows - A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing, direct. It will be numbericed that the sub-section refers to four distinct categories, namely, offences, classes of offences, cases and classes of cases and empowers the State government to direct any one or more of these categories to be tried by the Special companyrt companystituted under the Act. I shall first deal with the section in so far as it authorises the State government to direct offences, classes of offences and classes of cases to be tried by a Special Court. These expressions clearly indicate, and obviously imply, a process of classification of offences or cases. Prima facie those words do number companytemplate any particular offender or any particular accused in any particular case. The emphasis is on offences, classes of offences or classes of cases. The classification of offences by itself is number calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may companymit the particular offence. In short, the classification implied in this part of the sub-section has numberreference to, and is number directed towards the singling out of any particular person as an object of hostile State action but is companycerned only with the grouping of offences, classes of offences and classes of cases for the purpose of being tried by a Special Court. Such being the meaning and implication of this part of section 5, the question arises whether the process of classification thus companytemplated by the Act companyforms to the requirements of reasonable classification which does number offend against the Constitution. Learned Attorney-General claims that the impugned Act satisfies even this test of rational classification. His companytention is that offences may be grouped into two classes, namely, those that require speedier trial, that is speedier than what is provided for in the Code and those that do number require a speedier trial. The Act, according to him, purports to deal only with offences of the first class. He first draws our attention to the fact that the Act is intituled An Act to provide for the speedier trial of certain offences and then points out that the purpose of the Act, as stated in its preamble, also is to provide for the speedier trial of certain offences. He next refers us to the different sections of the Act and urges that all the procedural changes introduced by the Act are designed to accomplish the object of securing speedier trial. The Act accordingly empowers the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by it for the speedier trial of those offences. This companystruction of the section, he maintains, is companysonant with the object of the Act as recited in the preamble and does number offend against the inhibition of article 14 of our Constitution. Learned companynsel for the respondents, on the other hand urge that there is numberambiguity whatever in the language used in the sub-section, that there is numberindication in the sub-section itself of any restriction or qualification on the power of classification companyferred by it on the State government and that the power thus given to the State government cannot be companytrolled and cut down by calling in aid the preamble of the Act, for the preamble cannot abridge or enlarge the meaning of the plain language of the sub-section. This argument was accepted by the High Court in its application to the other part of the section dealing with selection of cases but in judging whether this argument applies, with equal force, to that part of the section I am number companysidering, it must be borne in mind that, although the preamble of an Act cannot override the plain meaning of the language of its operative parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the preamble is, as it were a key to the understanding of the Act. I therefore, proceed to examine this part of section 5 1 in the light of the preamble so as to ascertain the true meaning of it. I have already stated that this part of the sub-section companytemplates a process of classification of offences, classes of offences and classes of cases. This classification must, in order that it may number infringe the companystitutional prohibition, fulfil the two companyditions I have mentioned. The preamble of the Act under companysideration recites the ex of providing for the speedier trial of certain offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases from others and which will have a reasonable relation to the recited object of the Act. The differentia and the object being, as I have said, different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for, in the absence of any special circumstances which may distinguish one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases, speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or cases cannot be classified in two categories on the basis of the preamble alone as suggested by the learned Attorney-General. Learned companynsel for the respondents then companytended that as the object of the Act recited in the preamble cannot be the basis of classification, then this part of sub-section 5 1 gives an uncontrolled and unguided power of classification which may well be exercised by the State government capriciously or with an evil eye and an unequal hand so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the Indian Penal Code there are different chapters dealing with offences relating to different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g., theft section 378 , theft in a dwelling house section 380 , theft by a servant section 381 , to take only a few examples, and that according to the language of section 5 1 of the impugned Act it will be open to the State government to direct all offences of theft in a dwelling house under section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under section 381 to be dealt with in the ordinary Court in the usual way. In other words, if a stranger is charged with theft in a dwelling house, he may be sent up for trial before the Special Court under section 380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under section 381. The argument is that although there is numberapparent reason why an offence of theft in a dwelling house by a stranger should require speedier trial any more than an offence of that in a dwelling house by a servant should do, the State government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act. A little reflection will show that this argument is number sound. The part of sub-section 51 which I am number examining companyfers a power on the State government to make a classification of offences, classes of offences or classes of cases, which, as said by Chakravartti J., means a proper classification. In order to be a proper classification so as number to offend against the Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is numbernexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is numberapparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary and will be liable to be his by the principles on which the Supreme Court of the United States in Jank Skinner v. Oklahoma 216 U.S. 535 86 L. Ed. 1655 , struck down the Oklahoma Habitual Criminal Sterilisation Act which imposed sterilisation on a person companyvicted more than twice of larceny but number on one who was companyvicted of embezzlement on numerous occasions. That sort of classification will, therefore, number clearly be a proper classification such as the Act must be deemed to companytemplate. On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the companymission of such offences. Are we number familiar with gruesome crimes of murder, arson, loot and rape companymitted on a large scale during companymunal riots in particular localities and are they number really different from a case of a stray murder, arson, loot or rape in another district which may number be affected by any companymunal upheaval? Do number the existence of the companymunal riot and the companycomitant crimes companymitted on a large scale call for prompt and speedier trial in the very interest and safety of the companymunity? May number political murders or crimes against the State or a class of the companymunity e.g., women, assume such proportions as would be sufficient to companystitute them into a special class of offences requiring special treatment? Do number these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it number reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly I have numberdoubt in may mind that the surrounding circumstances and the special features I have mentioned above will furnish a very companyent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences companymitted elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will number be repugnant to the equal protection clause of our Constitution for there will be numberdiscrimination, for whoever may companymit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a special Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and companyplain of unequal treatment, for those other persons are of a different category and are number their equals. Section 5 1 , in so far as it empowers the State government to direct offences or classes of offences or classes of cases to be tried by a Special Court, also, by necessary implication and intendment, empowers the State government to classify the offences or classes of offences or classes of cases, that is to say, to make a proper classification in the sense I have explained. In my judgment, this part of the section, property companystrued and understood, does number companyfer an uncontrolled and unguided power on the State government. On the companytrary, this power is companytrolled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the Act as recited in the preamble. It is, therefore, number an arbitrary power. I, therefore agree with Harries, C.J. that this part of section 5 1 is valid. If the State government classifies offences arbitrarily and number on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, number the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination. In the present case, however, the State government has number purported to proceed under that part of section 5 1 which I have been discussing so far. It has, on the other hand, acted under that part of the section which authorises it to direct cases to be tried by the Special Court, for by the numberifications it has directed certain specific cases identified by their individual numbers in the records of the particular thanas to be tried by the Special Court. There is ostensibly numberattempt at, or pretence of, any classification on any basis whatever. The numberifications simply direct certain cases to be tried by the Special Court and are obviously issued under that part of section 5 1 which authorises the State government to direct cases to be tried by the Special Court. The word cases has been used to signify a category distinct from classes of cases. The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney-General that this selection of cases must also be made in the light of the object of the Act as expressed in its preamble, that is to say, the State Government can only select those cases which, in their view, require speedier trial. Turning to the preamble, I find that the object of the Act is to provide for the speedier trial of certain offences and number of a particular case or cases. In other words, this part of section 5 1 lies beyond the ambit of the object laid down in the preamble and, therefore, the preamble can have numbermanner of application in the selection of cases as distinct from offences, classes of offences or classes of cases. I agree with Harries C.J. that the preamble cannot companytrol this part of the sub-section where the language is plain and unambiguous. Further, as I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing the case from other cases and having relation to the object of the Act. It is difficult, if number impossible, to companyceive of an individual case, as distinct from a class of cases, as a class by itself within the rule of permissible and legitimate classification. An individual case of a crime companymitted with gruesome atrocity or companymitted upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances such as I have mentioned, it is number basically different from another individual case of a similar crime although companymitted with less vehemence or on a less eminent person. In any case, there is numberparticular bond companynecting the circumstances of the first mentioned case with the necessity for a speedier trial. In the absence of special circumstances of the kind I have described above, one individual case, say of murder, cannot require speedier trial any more than another individual case of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct cases as distinct from classes of cases to be tried by a Special Court companytemplates and involves a purely arbitrary selection based on numberhing more substantial than the whim and pleasure of State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have companymitted intrinsically the same quality of offence. This power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself and, therefore, this part of the section itself must incur our companydemnation. It is number a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore, agree with the High companyrt that section 5 1 of the Act in so far as it empowers the State Government to direct cases to be tried by a Special Court offends against the provisions of Article 14 and therefore the Special Court had numberjurisdiction to try these cases of the respondents. In my judgment, the High Court was right in quashing the companyviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismissed. Chandrasekhara Aiyar, J. The short question that arises for companysideration in these cases is whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the Constitution of India. The facts which have led up to the cases have been stated in the judgments of the High companyrt at Calcutta and their recapitulation is unnecessary. I agree in the companyclusion reached by my learned brothers that the appeals should be dismissed and I propose to indicate my views as shortly as possible on a few only of the points raised and discussed. The preamble to the Constitution mentions one of the object to be to secure to all its citizens equality of status and opportunity. Article 14 provides The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. Then follow articles 15 and 16, the former prohibiting discrimination on grounds of religion, race, caste, sex, place of birth, or any of them and the latter providing for equality of opportunity in matters of public employment. Leaving aside articles 17 to 19 as irrelevant for present purposes, we proceed to article 20, 21 and 22, which deal with prosecutions and companyvictions for offences and cases of preventive detention and prescribe, in rough and general outline, certain matters of procedure. Article 21 is, so to say, the key of this group or bunch and it is in these terms - No person shall be deprived of his life or personal liberty except according to procedure established by law. There can be numberdoubt that as regards the cases to be sent before the Special Court or Courts, the Act under scrutiny has deviated in many matters of importance from the procedure prescribed by the Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse to the accused. Preliminary inquiry before companymittal to the sessions, trial by jury or with the aid of assessors, the right of a de numbero trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special Court even graves is section 13, which provides that a person may be companyvicted of an offence disclosed by the evidence as having been companymitted by him, even though he was number charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary companyrts. The points of prejudice against the accused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance. The argument that changes in procedural law are number material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguarded is, on the face of is, unsound. The right to equality postulated by article 14 is as much a fundamental right as any other fundamental right dealt with in part III of the Constitution. Procedural law may and does companyfer very valuable rights on a person, and their protection must be as much the object of a companyrts solicitude as those companyferred under substantive law. The learned Attorney-General companytended that if the object of the legislation was a laudable one and had a public purpose in view, as in this case, which provided for the speedier trial of certain offences, the fact that discrimination resulted as a bye-product would number offend the provisions of article 14. His point was that if the inequality of treatment was number specifically intended to prejudice any particular person or group of persons but was in the general interests of administration, it companyld number be urged that there is a denial of equality before the law. To accept this position would be to neutralize, if number to abrogate altogether, article 14. Almost every piece of legislation has got a public purpose in view and is generally intended, or said to be intended, to promote the general progress of the companyntry and the better administration of Government. The intention behind the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy but the question which falls to be companysidered under article 14 is whether the legislation is discriminatory in its nature, and this has to be determined number so much by its purpose or objects but by its effects. There is scarcely any authority for the position taken up by the Attorney-General. It is well settled that equality before the law or the equal protection of laws does number mean identity or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted, as otherwise it would be almost impossible to carry on the work of Government of any State or companyntry. To use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson 282 U.S. 499 at p. 501 , We must remember that the machinery of government companyld number work if it were number allowed a little play in its joints. The law on the subject has been well stated in a passage from Willis on Constitutional Law 1936 Edition, at page 579 and an extract from the pronouncement of this Court in what is known as the Prohibition Case, The State of Bombay and Another v. F. N. Balsara 1951 S.C.R. 682 , where my learned brother Fazl Ali J. has distilled in the form of seven principles most of the useful observations of this Court in the Sholapur Mills case, Chiranjit Lal Chowdhury v. The Union of India and Others 1950 S.C.R. 869 . Willis says - The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does number forbid classification which rests upon reasonable grounds of distinction. It does number prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate.It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and companyditions both in the privileges companyferred and in the liabilities imposed. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does number take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are number required. Similarity, number identity of treatment, is enough. If any state of facts can reasonably be companyceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does number rest upon any reasonable basis. The seven principles formulated by Fazl Ali J. are as follows - The presumption is always in favour of the companystitutionality of an enactment, since it must be assumed that the legislature understands and companyrectly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is to classification at all and numberdifference peculiar to any individual or class and number applicable to any other individual or class, and yet the law hits only a particular individual or class. The principle of equality does number mean that every law must have universal application for all persons who are number be nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment. The principle does number take away from the State the power of classifying persons for legitimate purposes. Every classification is in some degree likely to produce some inequality, and mere production of inequality is number enough. If a law deals equally with members of a well-defined class, it is number obnoxious and it is number open to the charge of denial of equal protection on the ground that it has numberapplication to other persons. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis. After these citations, it is really unnecessary to refer to or discuss in detail most of the American decisions cited at the Bar. Their number is legion and it is possible to alight on decisions in support of propositions, apparently even companyflicting, if we divorce them from the companytext of the particular facts and circumstances and ignore the setting or the back-ground in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly weighted-down or over-encumbered in this manner. To say this is number to shut out illumining light from any quarter it is merely to utter a numbere of caution that we need number stray far into distant fields and try to clutch at something which may number after all be very helpful. What we have to find out is whether the statute number in question before us offends to any extent the equal protection of the laws unguaranteed by our written Constitution. Whether the classification, if any, is reasonable or arbitrary, or is substantial or unreal, has to be adjudicated upon by the companyrts and the decision must turn more on ones companymonsense than on over-refined legal distinctions or subtleties. The Attorney-General argued that if the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. But as speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is number much point in stating that there is a class of offences that require such speedy trial. Of companyrse, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does number state what exactly are the offences which in its opinion need a speedier trial and why it is so companysidered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of numberavail because the classification, if any, is illusive or evasive. The policy or idea behind the classification should at least be adumbrated, if number stated, so that the companyrt which has to decide on the companystitutionality might be seized of something on which it companyld base its view about the propriety of the enactment from the standpoint of discrimination or equal protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless. Apart from the absence of any reasonable or rational classification, we have in this case the additional feature of a carte blanche being given to the State Government to send any offences or cases for trial by a Special Court. Section 5, sub-clause, of the impugned Act is in these terms - A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct. If the scope or the meaning of the Act is doubtful, the preamble can be referred to for ascertaining its extent and purpose. But where the operative parts of the Act are clear and there is numberambiguity, the preamble cannot be allowed to companytrol the express provisions. On the terms of section 5, it would be perfectly open to the State Government to send before the Special Court any case, whatever its nature, whether it has arisen out of a particular incident or relates to a crime of numbermal occurrence, whether the offence involved is grave or simple, whether it needs more expeditious trial or number. Thus, we have before us an enactment which does number make any reasonable classification and which companyfers on the executive an uncontrolled and unguided power of discrimination. The question whether there is any proper classification where numberstandard is set up by the enactment to companytrol executive action has arisen for companysideration before the American companyrts and has been differently answered. Willis says at page 586 - Is it proper classification to put in one class those who get the companysent of a board or of an official and into another class those who do number, where numberstandard is set up to companytrol the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are number violated by the mere companyference of unguided power, but only by its arbitrary exercise by those upon whom it is companyferred. The case cited in support of this view, Plymouth Coal Co. v. Pennsylvania 232 U.S. 532 , is really on authority for any such position. In that case, the statute provided that it was obligatory on the owners of adjoining companyl properties to leave, or cause to be left, a pillar of companyl in each seam or vein of companyl worked by them, along the line of adjoining property, of such width that, taken in companynection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water such width of pillar to be determined by the engineers of the adjoining property owners together with the inspector of the district in which the mine is situated. When the Inspector of Mines wrote to the plaintiff companypany, Plymouth Coal Co., asking their engineer to meet him so that they can meet the engineer of the neighboring companyl companypany to decide about the thickness of the barrier pillar to be left unmined between the two adjoining companyl properties, the plaintiff companypany declined to companyoperate. Thereupon the Inspector filed a bill of companyplaint against the plaintiff companypany for a preliminary and a perpetual injunction from working its mines - without leaving a barrier pillar of the dimensions he thought necessary. The plaintiff companypany urged that the Act upon which the bill was based was companyfiscator, unconstitutional, and void. The bill of companyplaint succeeded but it was provided in the final order that it was without prejudice to the Plymouth Coal Co.s right to get dissolution or modification of the injunction. The matter came up on appeal to the Supreme Court. The legislative Act was challenged by the Plymouth Coal Co. on the grounds that the method of fixing the width of the barrier pillar indicated in the Act was crude, uncertain and unjust, that there was uncertainty and want of uniformity in the membership of the statutory tribunal, that there was numberprovision of numberice to the parties interested, that the procedure to be followed was number prescribed, and that there was numberright of appeal. All these objections were negatived. The Court observed on the main companytention that it was companypetent for the legislature to lay down a general rule, and then establish an administrative tribunal with authority to fix the precise width or thickness of pillar that will suit the necessities of the particular situation, and companystitute a companypliance with the general rule. This case is numberauthority for the position that the mere companyferment of naked or uncontrolled power is numberviolation of the due process or equality clauses. It is true that the power to deal with a particular situation within the general rule prescribed by the enactment may be companyferred on an administrative body or even on a single individual but this entrustment or delegation is subject to the companydition that the statute must itself be a valid one, as number being opposed to the 5th or 14th Amendment of the American Constitution, companyresponding to articles 14 and 22 of our Constitution. Discrimination may number appear in the statute itself but may be evident in the administration of the law. If an uncontrolled or unguided power is companyferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and number merely the particular administrative act. Citing the case of Sunday Lake Iron Co. v. Wakefield, Rogers v, Alabama and Concordia Fire Ins. Co. Illinois, Prof. Weaver says at page 404 of his companypendious book on Constitutional Law under the heading of DISCRIMINATION IN THE ADMINISTRATION OF THE LAWS - Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is companystrued and applied. It may be valid when given a particular application and invalid when given another. A difficulty was suggested and discussed in the companyrse of the arguments in case article 14 was to receive a very wide interpretation. Under article 12 of the Constitution, even a local authority companyes within the definition of the State and section 13 provides in sub-clause that law includes any ordinance, order, bye- law, rule, regulation, numberification Therefore any ordinance or numberification issued by a local authority acting under the powers companyferred on it by a statute might be challenged as discriminatory and if this is permitted, the work of administration might be paralysed altogether. This numberdoubt, is a possible result but the difficulty envisaged is by numbermeans insurmountable. If the statute or the enactment makes a reasonable or rational classification and if the power companyferred by the statute on a local authority is exercised to the prejudice of a person vis a vis other persons similarly situated, two answers would be possible. One is that there was numberdiscrimination at all in the exercise of the power. The second is that the power was exercised in good faith within the limitations imposed by the Act and for the achievement of the objects the enactment had in view and that the person who alleges that he has been discriminated against will have to establish mala fides in the sense that the step was taken intentionally for the purpose of injuring him in other words, it was a hostile act directed against him. If the legislation itself is open to attack on the ground of discrimination, the question of any act done by a local or other authority under the power or powers vested in it will number arise, If the Act itself is invalid on the ground that it is ultra vires, the numberification, ordinance, or rule falls to the ground with it, but if the Act remains, the validity of the numberification or order etc., when impugned, may have to be companysidered independently. There may be cases where individual acts of state officials are questioned and number the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the Constitution of the United States - It is, however, to be observed in this companynection, that the prohibitions apply to the acts of State officials even when they are done in pursuance of some State legislative direction, for, while numberconstitutional objection may be made to any law of the State, it has been held that its officials may exercise their public authority in such a discriminatory or arbitrary manner as to bring them within the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of the grounds upon which, in Yick Wo V. Hopkins 118 U. S. 356 it was held that due process of law had been denied. In Tarrance v. Florida 188 U. S. 519 the administration of a State law and number the law itself was challenged and the companyrt said Such an actual discrimination is as potential in creating a denial of equality of rights as discrimination made by law. There is only one other point that I would like to deal with. Trevor Harries C.J. has taken the view that section 5 of the Act would have been Unexceptionable had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes numberclassification at all, or if the classification purported to be made is number reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as companytravening article, 14. It is numberdoubt true that totally different companysiderations might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is number the case here. I am unable to see how if the Act merely provided that certain classes of cases as distinguished from cases should be tried by a Special Court, the attack against discrimination companyld be avoided, as even then the test of rationality or reasonableness would still remain to be satisfied. If the Act does number enunciate any principle on the basis of which the State Government companyld select offences of classes of offences or cases or classes of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void. On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta in the following passage of his judgment - The Act lays down numberprinciple on which selection of classes of offences or classes of cases should be made by the State Government. The State Government may even arbitrarily determine the classes of cases to be tried by the Special Court and if it does so its action will be well within its powers companyferred by the Act. The Act indicates numberbasis whatsoever on which such classification should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the word cases from section 5 would number save the rest of the Act from being invalid. Bose, J. We are companycerned here with article 14 of the Constitution and in particular with the words equality before the law and equal protection of the law. Now I yield to numbere in may insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the companytext, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is number the case here. Take first the words equality before the law. It is to be observed that equality in the abstract is number guaranteed but only equality before the law. That at once leads to the question, what is the law, and whether the law does number draw distinctions between man and man and make for inequalities in the sense of differentiation? One has only to look to the differing personal laws which are applied daily to see that it does to trusts and foundations from which only one particular race or companymunity may benefit, to places of worship from which all but members of particular faith are excluded, to cemeteries and towers of silence which numbere but the faithful may use to the laws of property, marriage and divorce. All that is part and parcel of the law of the land and equality before it in any literal sense is impossible unless these laws are swept away, but that is number what the Constitution says, for these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of ones faith. Then, again, what does equality mean? All men are number alike. Some are rich and some are poor. Some by the mere accident of birth inherit riches, others are born to poverty. There are differences in social standing and economic status. High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to companyditions which predicate inequality form the start and yet the words have meaning though in my judgment their true companytent is number to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are number mathematical formulae which have their essence in mere form. They companystitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are number just pages from a text book but form the means of ordering the life of a progressive people. There is companysequently grave danger in endeavoring to companyfine them in watertight companypartments made up of ready-made generalisations like classification. I have numberdoubt those tests serve as a rough and ready guide in some cases but they are number the only tests, number are they the true tests on a final analysis. What, after all, is classification? It is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected also granted the right to select, the classification can be as broad based as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those who propound this theory are driven to making qualifications. Thus, it is number enough merely to classify but the classification must number be discriminatory, it must number amount to hostile action, there must be reasonable grounds for distinction, it must be rational and there must be numbersubstantial discrimination. But what then becomes of the classification and who are to be the judges of the reasonableness and the substantiality or otherwise of the discrimination? And, much more important, whose standards of reason-ableness are to be applied? - the judges? - the governments? - or that of the mythical ordinary reasonable man of law which is numbersingle man but a companyposite of many men whose reasonableness can be measured and gauged even though he can neither be seen number heard number felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To may mind they, do number carry us one whit beyond the original words and are numbermore satisfactory than saying-that all men are equal before the law and that all shall be equally treated and be given equal protection. The problem is number solved by substituting one generalisation for another. To say that the law shall number be discriminatory carries us numberhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick out from among the laws which make for differentiation the ones which do number offend article 14 and separate them from those which do. It is true the word can also be used in the sense of showing favouritism, but in so far as it means that, it suffers from the same defect as the hostile action test. We are then companypelled to import into the question the clement of motive and delve into the minds of those who make the differentiation or pass the discriminatory law and thus at once substitute a subjective test for an objective analysis. I would always be slow to impute want of good faith in these cases. I have numberdoubt that the motive, except in rare cases, is beyond reproach and were it number for the fact that the Constitution demands equality of treatment these laws would, in may opinion, be valid. But that apart. What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as had, and in the absence of other material the presumption must be overwhelmingly in favour of the former. I can companyceive of cases, where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary cases in which a State legislature companysiders that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less companyplicated the trial the fairer it is to their sub-standard of intelligence. Here is classification. It is scientific and systematic. The intention and motive are good. There is numberquestion of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges would number companysider that fair and proper. However much the real ground of decision may be hidden behind a screen of words like reasonable, substantial, rational and arbitrary the fact would remain that judges are substituting their own judgment of what is right and proper and reasonable and just for that of the legislature and up to a point that, I think, is inevitable when a judge is called upon to crystallise a vague generality like article 14 into a companycrete companycept. Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution, Parliament is the supreme legislator, but from, the moment Parliament has uttered its will as law-giver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates numberless than by the general spirit of the companymon law, are disposed to companystrue statutory exceptions to companymon law principles in a mode which would number companymend itself either to a body of officials, or the Houses of Parliament, if the Houses were called upon to interpret their own enactments. This, however, does number mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature. That is number their province and though there must always be a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice and reach impersonal results whatever their personal predilections or their individual backgrounds. It is the function of the legislature alone, headed by the government of the day, to determine what is, and what is number, good and proper for the people of the land and they must be given the widest latitude to exercise their functions within the ambit of their powers, else all progress us barred. But, because of the Constitution, there are limits beyond which they cannot go and even though it falls to the lost of judges to determine where those limits, lie, the basis of their decision cannot be whether the Court thinks the law is for the benefit of the people of number. Cases of this type must be decided solely on the basis whether the Constitution for bids it. I realise that this is a function which is incapable of exact definition but I do number view that with dismay. The companymon law of England grew up in that way. It was gradually added to as each companycrete case arose and a decision, was given ad hoc on the facts of that particular case. It is true the judges who thus companytributed to its growth were number importing personal predilections into the result and merely stated what was the law applicable to that particular case. But though they did number purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which though they existed in fact and left a vague a awareness in mans minds, nevertheless were neither clearly definable number even necessarily identificable, until crystalised into companycrete existence by a judicial decision number indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered number from the rishis, number from custom, number from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in may judgment, be enunciated in static from by hidebound rules and arbitrarily applied standards or tests. I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from companysideration the brooding spirit of the times. They are number just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in may judgment, be left elastic enough to meet from time to time the altering companyditions of a changing would with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case companycretely much as a jury would do and yet, number quite as a jury, for we are companysidering here a matter of law and number just one of fact Do these laws which have been called in question offend a still greater law before which even they must bow? Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to companypress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the companylective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily companystituted tribunals with numberel forms of procedure set forth in Ordinances promulgated in baste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so companystituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was number the fault of the judges but of the imperfect tools with which they were companypelled to work. The whole proceedings were repugnant to the peoples of this land, and to may mind, article 14 is but a reflex of this mood. What I am companycerned to see is number whether there is absolute equality in any academical sense of the term but whether the companylective companyscience of a sovereign democratic republic can regard the impugned law, companytrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into companysideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, law as used in article 14 does number mean the legal precepts which are actually recognised and applied in tribunals of a given time and place but the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them. Dean Pound in 34 Harvard Law Review 449 at 452 . I grant that this means that the same things will be viewed differently at different times. What is companysidered right and proper in a given set of circumstances will be companysidered improper in another age and vice versa. But that will number be because the law has changed but because the times have altered and it is numberlonger necessary for government to wield the powers which were essential in an earlier and more troubled world. That is what I mean by flexibility of interpretation. This is numbernew or starting doctrine. It is just what happened in the cases of blasphemy and sedition in England. Lord Summer has explained this Bowmans case 1917 A.C. 406 at 454, 466 and 467 and the Federal Court in Niharendu Dutt Majumders case 1942 F.C.R. 32 at 42 and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shuklas case I.L.R. 1946 Nag. 865 at 878 and 879 . Coming number to the companycrete cases with which we have to deal here. I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure Code are had or undesirable in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus from welcome additions to the law of the land. But I am number here to companysider that. That is numberpart of a Judges province. What I have to determine is whether the differentiation made offends what I may call the social companyscience of a sovereign democratic republic. That is number a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is number that these laws are necessarily had in themselves. It is the differentiation, which matters the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with the most serious companysequences to the individuals companycerned, for special, and what some would regard as peculiar, treatment. It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would number be satisfactorily done, satisfactory that is to say number from the point of view of the governments, who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is number enough that justice should be companye. Justice must also be seen to be done and a sense of satisfaction and companyfidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first. The law of the Constitution is number only for those who govern or for the theorist, but also for the bulk of the people for the companymon man for whose benefit and pride and safeguard the Constitution has also been written. Unless and until these fundamental provisions are altered by the companystituent processes of Parliament they must be interpreted in a sense which the companymon man, number versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and companyfidence and unshaken trust in that which has been enacted for his benefit and protection. Tested in the light of these companysiderations. I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad. When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to may mind is the most important of all. We find men accused of heinous crimes called upon answer for their lives and liberties. We find picked out from their fellows, and however the new procedure may given them a few crumb of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters number to me, number indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the companyvenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters number how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are number swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic, in the companydition which obtain in India today? I have but one answer to that.

Case appeal was rejected by the Supreme Court

Fazl Ali, J. This is an appeal from an order of the Madras High Court dismissing the petition of the appellant praying for a writ of certiorari. The appellant was one of the persons who had filed numberination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem district. On the 28th November, 1951, the Returning Officer for that companystituency took up for scrutiny the numberination papers filed by the various candidates and on the same day he rejected the appellants numberination paper on certain grounds which need number be set out as they are number material to the point raised in this appeal. The appellant thereupon moved the High companyrt under article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his numberination paper and to direct the Returning Officer to include his name in the list of valid numberinations to be published. The High Court dismissed the appellants application on the ground that it had numberjurisdiction to interfere with the order of the Returning Officer by reason of the provisions of article 329 of the Constitution. The appellants companytention in this appeal is that the view expressed by the High Court is number companyrect that the view expressed by the High Court is number affected by article 329 b of the Constitution and that he was entitled to a writ of certiorari in the circumstances of the case. Broadly speaking, the arguments on which the judgment of the High Court is assailed are two fold - 1 that the companyclusion arrived by the High Court does number follow from the language of article 329 b of the Constitution, whether that article is read by itself or along with the other articles in Part XV of the Constitution and 4. 2 that the anomalies which will arise if the companystruction put by the High Court on article 329 b is accepted, are so startling that the companyrts should lean in favour of the companystruction put forward on behalf of the appellant. The first argument which turns on the companystruction of article 329 b requires serious companysideration, but I think the second argument can be disposed of briefly at the outset. It should be stated that what the appellant chooses to call anomaly can be more appropriately described as hardship or prejudice and what their nature will be has been stated in forceful language by Wallance. J. in Sarvothama Rao v. Chairman Municipal Council, Saidapet 1924 I.L.R. 47 Mad. 585 AT 600 in these words - I am quite clear that any post election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that this election, number published be stayed, until it can be held with himself as a candidate. It is numberconsolation to tell him that he can stand for some other election. It is numberremedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different companyditions and may bring forward an array of fresh candidate. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected numberination is restored, and hence an injunction staying this election was absolutely necessary, unless the relief asked for was to be denied him altogether in limine. In most cases of this kind numberdoubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is companymitted but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually companysummated while it is engaged in trying the suit. These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case Desi Chettiar v. Chinnasami Chettiar 1928 A.I.R. Mad. 1271 AT 1272 in the following passage - The petitioner is number without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him that remedy which merely allows him to have set aside an election once held is number as efficacious as the one which would enable him to stop the election altogether and certain observations at p. 600 of Sarvothama Rao v. Chairman, Municipal Council, Saidapet 1924 I.L.R. 47 Mad. 585 AT 600 are quoted. In the first place, we do number see how the mere fact that the petitioner cannot get the election stopped and has his remedy only after it is over by an election petition, will in itself companyfer on him any right to obtain a writ. In the second place, these observations were directed to the companysideration of the propriety of an injunction in a civil suit, a matter with which we are number here companycerned. And finally it may be observed that these remarks were made some years ago when the practice of individuals companying forward to stop elections in order that their own individual interest may be safeguarded was number so companymon. It is clear that there is another side of the question to be companysidered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances. We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere numberinated fraction of its total strength and this state of affairs the petitioner proposes to have companytinued until his own personal grievance is satisfied. These observations which were made in regard to elections to Local Boards will apply with greater force to elections to legislatures, because it does number require much argument to show that in a companyntry with a democratic companystitution in which the legislatures have to play a very important role, it will lead to serious companysequences if the elections are unduly protracted or obstructed. To this aspect of the matter I shall have to advert later, but it is sufficient for the present purpose to state firstly that in England the hardship and in companyvenience which may be suffered by an individual candidate has number been regarded as of sufficient weight to induce Parliament to make provision for immediate relief and the aggrieved candidate has to wait until after the election to challenge the validity of the rejection of his numberination paper, and secondly that the question of hardship or inconvenience is after all only a secondly question, because if the companystruction put by the High Court on article 329 b of the Constitution is found to be companyrect, the fact that such companystruction will lead to hardship and inconvenience becomes irrelevant. Article 329 is the last article in Part XV of the Constitution, the heading of which is Elections, and it runs as follows - Notwithstanding anything in this Constitution a the validity of any law relating to the delimitation of companystituencies or the allotment of seats to such companystituencies, made or purporting to be made under article 327 or article 328, shall number be called in question in any companyrt b numberelection to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature. In companystruing this article, reference was made by both parties in the companyrse of their arguments to the other articles in the same part, namely, articles 324,325,326,327 and 328. Article 324 provides for the companystitution and appointment of an Election Commissioner to superintend, direct and companytrol elections to the legislatures article 325 prohibits discrimination against electors on the ground of religion, race, caste, or sex article 326 provides for adult suffrage article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in companynection with, elections to the legislatures, subject to the provisions of the Constitution and article 328 is a companyplementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in companynection with, elections to the State Legislature. A numberable difference in the language used in article 327 and 328 on the one hand, and article 329 on the other, is that while the first two articles begin with the words subject to the provisions of this Constitution. the last article begins with the words number with standing anything in this companystitution. It was companyceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislature under article 328, cannot exclude the jurisdiction of the High Court under article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in article 329. Now, the main companytroversy in this appeal centers round the meaning of the words numberelection shall be called in question except by an election petition in article 329 b , and the point to be decided is whether questioning the action of the Returning Officer in rejecting a numberination paper can be said to be companyprehended within the words, numberelection shall be called in question. The appellants case is that questioning something which has happened before a candidate is declared elected is number the same thing as questioning an election, and the arguments advanced on his behalf in support of this companystruction were these - That the word election as used in article 329 b means what it numbermally and etymologically means, namely, the result of polling or the final selection of a candidate That the fact that an election petition can be filed only after polling is over or after a candidate is declared elected, and what is numbermally called in question by such petition is the final result, bears out the companytention that the word election can have numberother meaning in article 329 b than the result of polling or the final selection of a candidate That the words arising out of or in companynection with which are used in article 324 1 and the words with respect to all matters relating to, or in companynection with which are used in article 327 and 328, show that the framers of the Constitution knew that it was necessary to use different language when referring respectively to matters which happen prior to and after the result of polling, and if they had intended to include the rejection of a numberination papers within the ambit of the prohibition companytained in article 329 b they would have used similar language in that article and That the action of the Returning Officer in rejecting a numberination paper can be questioned before the High Court under article 226 of the Constitution for the following reason - Scrutiny of numberination papers and their rejection are provided for in selection 36 of the Representation of the People Act, 1951. Parliament has made this provision in exercise of the powers companyferred on it by article 327 of the Constitution which is subject to the provisions of the Constitution. Therefore, the action of the Returning Officer is subject to the extraordinary jurisdiction of the High Court under article 226. These arguments appear at first sight to be quite impressive, but in my opinion there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen the most important question for determination is the meaning to be given to the word election in article 329 b . That word has by long usage in companynection with the process of selection of proper representatives in democratic institution, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidates being returned unopposed when there is numberpoll. In the wide sense the word is used to companynote the entire process culminating in a candidate being declared elected In Srinivasalu v. Kuppuswami 1928 A.I.R. Mad. 253 at 255 , the learned Judges of the madras High Court after examining the question, expressed the opinion that the term election may be taken to embrace the whole procedure whereby an elected member is returned, whether or number it be found necessary to take a poll. With this view, my brother, Mahajan J expressed his agreement in Sat Narain v. Hanuman Prasad 1945 A.I.R. Lah. 85 and I also find myself in agreement with it. It seems to me that the word election has been used in Part XV of the Constitution in the wide sense, that is to say, to companynote the entire procedure to be gone through to return a candidate to the legislature. The use of the expressionconduct of elections in article 324 specifically points to the wide meaning, and that meaning can also be read companysistently into the other provisions which occur in Part XV including article 329 b . That the word election bears this wide meaning whenever we talk of elections in a democratic companyntry, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite companycisely in Halsburys Laws of England in the following passage under the heading Commencement of the Election. Although the first formal step in every election is the issue of the writ, the election is companysidered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties companycerned responsible for breaches of election law, the test being whether the companytest is reasonably imminent. Neither the issue of the writ number the publication of the numberice of election can be looked to as fixing the date when an election beings from this point of view. Nor, again, does the numberination day afford any criterion. The election will usually being at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when the companyduct and management of an election may be said to begin, Again, the question as to which a particular person companymences to be a candidate is a question to be companysidered in each case. The discussion in this passage makes it clear that the word election can be and has been appropriately used with reference to the entire process which companysists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. The next important question to be companysidered is what is meant by the words numberelection shall be called in question. A reference to any treatise on elections in England will show that an election proceeding in that companyntry is liable to be assailed on very limited grounds, one of them being the improper rejection of a numberination paper. The law with which we are companycerned is number materially different, and we find that in section 100 of Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a numberination paper. The question number arises whether the law of elections in this companyntry companytemplates that there should be two attacks on matters companynected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution the ordinary jurisdiction of the companyrts having been expressly excluded , and another after they have been companypleted by means of an election petition. In my opinion, to affirm such a position would be companytrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out latter, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should number be brought up at an intermediate stage before any companyrt. It seems to me that under the election law, the only significance which the rejection of a numberination paper has companysists in the fact that it can be used as a ground to call the election in question. Article 329 b was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question companyld be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other companyrt. If the grounds on which an election can be called in question companyld be raised at an earlier stage and errors, it any, are rectified, there will be numbermeaning in enacting a provision like article 329 b and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution companyld number have companytemplated, one of them being that companyflicting view may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it. I think that a brief examination of the scheme of Part XV of the Constitution and the Representation of the People Act, 1951, will show that the companystruction I have suggested is the companyrect one. Broadly speaking, before an election machinery can be brought into operation there are three requisites which requires to be attended to, namely, 1 there should be a set of laws and rules making provisions with respect to all matters relating to, or in companynection with, elections, and it should be decided as to how these laws and rules are to be made 2 there should be an executive charged with the duty of securing the due companyduct of election and 3 there should be a judicial tribunal to deal with disputes arising out of or in companynection with elections. Article 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the third requisite. The other two articles in Part XV vix., article 325 and 326, deal with two matters of principle to which the Constitution framers have attached much importance. They are - 1 prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them and 2 adult suffrage, Part XV of the Constitution is really a companye in itself providing the entire ground work for enacting appropriate laws and setting up suitable machinery for the companyduct of elections. The Representation of the People Act, 1951, which was passed by Parliament under article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages companynected with elections to the various legislature in this companyntry. That Act is divided into 11 parts, and it is interesting to see the wise variety of subjects they deal with. Part II deals with the qualifications and disqualifications for membership, Part III deals with the numberification of General Elections, Part IV provides for the administrative machinery for the companyduct of elections, and Part V makes provisions for the actual companyduct of elections and deals with such matters as presentation of numberination papers, requirements of a valid numberination, scrutiny of numberinations, etc., and procedure for polling and companynting of votes. Part VI deals with disputes regarding elections and Provides for the manner of presentation of election petitions, the companystitution of election tribunals and the trial of election petitions. Part VII outlines the various companyrupt and illegal practice which may affect the elections, and electoral offences. Obviously, the Act is a self companytained enactment so far as elections are companycerned, which means that whenever we have to ascertain the true position in regard to any matter companynected with election. We have only to look at the Act and the rules made thereunder. The provisions of the Act which are material to the present discussion are sections 80, 100, 105 and 170, and the provisions of Chapter II of Part IV dealing with the form of election petitions, their companytents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as article 329 b , provides that numberelection shall be called in question except by an election petition presented in accordance with the provisions of this part. Section 100, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a numberination paper. Section 105 says that every order of the Tribunal made under this Act shall be final and companyclusive.Section 170 provides that numbercivil companyrt shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in companynection with an election. These are the main provisions regarding election matters being judicially dealt with, and it should be numbered that there is numberprovision anywhere to the effect that anything companynected with elections can be questioned at an intermediate stage. It is number well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford 6 C.B. N.S. 336, 356 in the following passage - There are three classes of cases in which a liability may be established founded upon statute. One is where there was a liability existing at companymon law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at companymon law there, unless the statute companytains words which expressly or by necessary implication exclude the companymon law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides numberparticular form of remedy there, the party can only proceed by action at companymon law. But there is a third class viz., where a liability number existing at companymon law is created by a statute which at the same time gives a special and particular remedy for enforcing it The remedy provided by the statute must be followed, and it is number companypetent to the party to pursue the companyrse applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express News Paper Limited 1919 A.C. 368. and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordons Grant Co. 1935 A.C. 532 and Secretary of State v. Mask Co 1940 44 C.W.N. 709 and it has also been held to be equally applicable to enforcement of rights see Hurdutrai v. Official Assignee of Calcutta 1948 52 C.W.N. 343, 349 . That being so, I think it will be a fair inference from the provisions of the Representation of the people Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is numberremedy provided at any intermediate stage. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writ under article 226 of the Constitution. This argument however is companypletely shut out by reading the Act along with article 329 b . It will be numbericed that the language used in that article and in section 80 of the Act is almost identical, with this difference only that the article is preceded by the words numberwithstanding anything in this Constitution. I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in the progress. It may be stated that section 107 1 of the Representation of People Act, 1949 12 13 Geo. 6, c. 68 in England is drafted almost in the same language as article 329 b . That section runs thus - No parliamentary election and numberreturn to Parliament shall be questioned except by a petition companyplaining of an undue election or undue return herein after referred to as a parliamentary election petition presented in accordance with this Part of this Act. It appears that similar language was used in the earlier statutes, and it is numbereworthy that it has never been held in England that the improper rejection of a numberination paper can be the subject of a writ of certiorari or mandamus. On the other hand, it was companyceded at the bar that the question of improper rejection of a numberination paper has always been brought up in that companyntry before the appropriate tribunal by means of an election petition after the companyclusion of the election. It is true that there is numberdirect decision holding that the words used in the relevant provisions exclude the jurisdiction of the High Court issue appropriate prerogative writs at an intermediate state of the election, but the total absence of any such decision can be accounted for only on the view that the provisions in question have been generally understood to have that effect. Our attention was drawn to rule 13 of the rules appended to the ballot Act of 1872 and a similar rule in the Parliamentary Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an objection to numberination paper shall be final, but allowing the same shall be subject to reversal on a petition questioning the election or return. These rules however do number affect the main argument. I think it can be legitimately stated that if words similar to those used in article 329 b have been companysistently treated in England as words apt to exclude the jurisdiction of the companyrts including the High Court, the same companysequence must follow from the words used in article 329 b of the Constitution. The words numberwithstanding anything in this Constitution give to that article the same wide and binding effect as a statute passed by a sovereign legislature like the English Parliament. It may be pointed out that article 329 b must be read as companyplimentary to clause a of that article. Clause a bars the jurisdiction of the companyrts with regard to such law as may be made under articles 327 and 328 relating to the delimitation of companystituencies or the allotment of seats to such companystituencies. It was companyceded before us that article 329 b ousts the jurisdiction of the companyrts with regard to matters arising between the companymencement of the polling and the final selection. The question which has to be asked is what companyceivable reason the legislature companyld have had to leave only matters companynected with numberinations subject to the jurisdiction of the High Court under article 226 of the Constitution. If part XV of the companystitution is a companye by itself, i.e. it creates rights and provides for their enforcement by a special tribunal to the exclusion of all companyrts including the High Court, there can be numberreason for assuming that the Constitution left one small part of the election process to be made the subject matter of companytest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that article 329 companyers all electoral matters. The companyclusions which I have arrived at may be summed up briefly as follows - Having regard to the important functions which the legislature have to perform in democratic companyntries, it has always been recognized to be a matter of first importance that elections should be companycluded as early as possible according to time schedule and all companytroversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may number be unduly retarded or protracted. In companyformity with this principle, the scheme of the election law in this companyntry as well as in England is that numbersignificance should be attached to anything which does number affect the election and if any irregularities are companymitted while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the election and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and number be made the subject of a dispute before any companyrt while the election is in progress. It will be useful at this stage to refer to the decision of the Privy Council in Theberge v. Laudry 1876 2 App. Cas. 102 . The petitioner in that case having been declared duly elected a member to represent an electoral district in the legislative Assembly of the Province of Quebec, his election was afterwards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act. 1875 and himself declared guilty of companyrupt practices, both personally and by his agents. Thereupon, he applied for special leave to appeal to Her Majesty in Council but it was refused on the ground that the fair companystruction of the Act of 1875 and the Act of 1872 which preceded it providing among, other things that the judgment of the Superior Court shall number be susceptible of appeal was that it was the intention of the legislature to create a tribunal for the purpose of trying election petitions in a manner which should make its decision final for all purposes, and should number annex to it the incident of its judgment being reviewed by the Crown under its prerogative. In delivering the judgment of the Privy Council, Lord Cairns observed as follows - These two Acts of Parliament, the Act of 1872 and 1875 are Act peculiar in their character. They are number Acts companystituting or providing for the decision of mere ordinary civil rights they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court for the purpose of taking out, with its own companysent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special and one of the obvious incidents or companysequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become companyclusive and enable the companystitution of the Legislative Assembly to be distinctly and speedily known. After dealing with creation other matters, the Lord Chancellor proceeded to make the following further observations - Now, the subject matter, as has been said of the legislation is extremely peculiar. It companycerns the rights and privileges of the electors and of the Legislative Assembly to which they elect members. Those rights and privilege have always in every companyony, following the example of the mother companyntry, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in companyplete independence of the Crown, so far as they properly exist. And it would be a result some what surprising, and hardly in companysonance with the general scheme of the legislation, if with regards to rights and privileges of this kind, it were to be found that in the last resort the determination of them numberlonger belonged to the Legislative Assembly, numberlonger belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that companyrt which the Legislative Assembly had substituted in its place. The points which emerge from this decision may be stated as follows - The right to vote or stand as a candidate for election is number a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal and entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. It should be mentioned here that the question as to what the powers of the High Court under article 226 and 227 and of this Court under article 136 of the Constitution may be, is one that will have to be decided on a proper occassion. It is necessary to refer at this stage to an argument advanced before us on behalf of the appellant which was based on the language of article 71 1 of the Constitution. That provision runs thus - All doubts and disputes arising out of or in companynection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final. The argument was as follows. There is a marked companytrast between the language used in article 71 1 and that of article 329 b . The difference in the phraseology employed in the two provisions suggests that they companyld number have been intended to have the same meaning and scope as regards matter to be brought up before the tribunals they respectively deals with. If the framer of the Constitution, who apparently knew how to express themselves intended to include within the ambit of article 329 b all possible disputes companynected with election to legislature, including disputes as to numberinations, they would have used similar words as are to be found in article 71 1 . It is true that it is number necessary to use identical language in every provision, but one can companyceive of various alternative ways of expression which would companyvey more clearly and properly what article 329 b is said to companyvey. It seems to me that once it is admitted that the same idea can be expressed in different ways and the same phraseology need number be employed in every provision, the argument loses much of its force. But, however that may be, I think there is a good explanation as to why article 329 b was drafted as it stands. A reference to the election rules made under the Government of India Acts of 1919 and 1935 will show that the provisions in them on the subject were almost in the same language as article 239 b The companyresponding rule made under the Government of India Act, 1919, was rule 31 of the electoral rules, and it runs as follows - No election shall be called in question, except by an election petition presented in accordance with the provisions of this Part. It should be numbered that this rule occurs in Part VII, the heading of which is The final decision of doubts and disputes as to the validity of an election. These words throw some light on the function which the election tribunal was to perform, and they are the very words which the learned companynsel for the appellant argued to have been used to make the meaning clear. The same scheme was followed in the election rules framed under the Government of India Act, 1935 which are companytained in The Government of India Provincial Elections Corrupt Practice and Election Petitions Order, 1936. dated the 3rd July, 1936. In that Order, the rule companyresponding to rule 31 under the earlier Act, runs thus - No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the Order. This rule is to be found in Part III of the Order, the heading of which is Decision of doubts and disputes as to validity of an election and disqualifications for companyrupt practices. The rules to which I have referred were apparently framed on the pattern of the companyresponding provisions of the British Acts of 1868 and 1872, and they must have been intended to companyer the same ground as the provisions in England have been understood to companyer in that companyntry for so many years. If the language used in article 329 b is companysidered against this historical background, it should number be difficult to see why the framer of the Constitution framed that provision in its present form and chose the language which had been companysistently used in the certain earlier legislative provisions and which had stood the test of time. And number a word as to why negative language was used in article 329 b . It seems to me that there is an important difference between article 71 1 and article 329 b Article 71 1 had to be in affirmative form, because it companyfers special jurisdiction on the Supreme Court which that Court companyld number have exercised but for this article. Article 329 b , on the other hand, was primarily intended to exclude or oust the jurisdiction of all companyrts in regard to electoral matters and to lay down the only mode in which an election companyld be challenged. The negative form was therefore more appropriate, and that being so, it is number surprising that it was decided to follow the pre- existing pattern in which also the negative language had been adopted. Before companycluding, I should refer to an argument which was strenuously pressed by the learned companynsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words - It was next companytented that if numberination is part of election, a dispute as to the validity of numberination is a dispute relating to election and that can be called in question only in accordance with the provisions of article 329 b by the presentation of an election petition to the appropriate Tribunal and that the Returning Officer would have numberjurisdiction to decide that matter, and it was further argued that section 36 of Act XLIII of 1951 would be ultra vires inasmuch as it companyfers on the Returning Officer a jurisdiction which article 329 b companyfers on a Tribunal to be appointed in accordance with the article. This argument displays great dialectical ingenuity, but it has numberbearing on the result of this appeal and I think it can be very shortly answered. Under section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the numberination papers to ensure that they companyply with the requirements of the Act and decide all objections which be made to any numberination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without companyplying with the provisions of the Act and a great deal of companyfusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does number call in question any election. Scrutiny of numberination papers is only a stage though an important stage, in the election process. If is one of the essential duties to be performed before the election can be companypleted, and anything done towards the companypletion of the election proceedings can by numberstretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns number on the companystruction of the single words election, but number the companystruction of the companypendious expression - numberelection shall be called in question in its companytext and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has numberbearing on this method of approach to the question posed in this appeal, which appears to me to be the only companyrect method. We are informed that besides the Madras High Court seven, other State High Courts have held that they have numberjurisdiction under article 226 of the Constitution of the entertain petitions regarding improper rejection of numberination papers. This view is in my opinion companyrect and must be affirmed. The appeal must therefore fail and is dismissed. In view of the nature and importance of the points raised in this appeal, there should be numberorder to companyts. Patanjali Sastri, C.J. I agree. Mehr Chand Mahajan, J. I agree. Mukherjea, J I agree. Das, J. I agree.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 18 of 1952. Appeal from the Judgment and Order dated December 12, 1949, of the High Court of Judicature at Bombay Weston and Shah JJ. in First Appeal No. 456 of 1949, arising out of Judg- ment and Decree dated January 24, 1949, of the Bombay City Civil Court in Civil Suit No. 106 of 1948. C. Setalvad, Attorney-General for India, S.B.Jatharwith him for the appellant. P. Engineer E. H. Bhaba with him for the respondent. 1952. November 5. The Judgment of the Court was delivered by DAS J.-This is an appeal filed with the special leave of this Court. It is directed against the judgment and decree passed December 2, 1949, by a Division Bench Weston and Shah JJ. of the Bombay High Court reversing, the ground of absence of jurisdiction, the judgment and decree for possession passed January 24, 1949, by the Bombay City Civil Court and directing the return of the plaint for presentation to the proper Court. There is numberdispute as to the facts material for the purposes of this appeal. or about April 15, 1908, the Board of Trustees for the Improvement of the City of Bombay put up to auction plots Nos. 16, 17 and 18 of new survey Nos. 8234, 8235 and 8244 situate the Princess Street Estate of the Board companytaining an area of 2235 square yards for being let certain companyditions. One Sitaram Luxman was the highest bidder and was declared the tenant at an annual rent per square yard to be calculated at the rate of 41/2 per cent of Rs. 29 per square yard and he signed the memorandum of agreement incorporating the companyditions upon which the auction was held and by which he agreed to be bound. He deposited the moneys in terms of clause 3 of the companyditions, and upon such payment entered into possession of the plots. By clause 7 Sitaram Luxman agreed, within the time specified therein, to build and companyplete at a companyt of number less than Rs. 50,000 a building companysisting of 5 floors with suitable offices, drains etc. according to plans and specifications to be made by an approved architect and approvedby the Board By clause 17 he agreed, so soon as the main building should be roofed in, to insure in the joint names of the Board and of himself and, until the granting of the lease thereinafter provided, keep insured the buildings and works the plots for the full value thereof. Clause 18 of the companyditions was as follows- The lease. Immediately after the companypletion within the time limited by companydition 7 of the said buildings and works to the satisfaction of the Trust Engineer testified by his certificate the Trustees will if the companytract has number previously been determined grant to the tenant or his approved numberinee who shall accept the same a lease of the said plot with buildings thereon for the term of 999 years from the date of the auction at the yearly rent calculated in accordance with the accepted bidding for the plot. Clause 25 gave power to the Board, if the buildings were number companypletely finished within the stipulated time and certain other companytingencies, to forfeit the deposit and to enter upon and retain possession of the plots and all buildings and works then standing thereon. Pursuant to this agreement the said Sitaram Luxman erected those plots a building which has since companye to be known as the New Sitaram Building. the companypletion of the building, by an Indenture -of lease made April 19, 1916, between, the Trustees for the Improvement of the City of Bombay and one Rustomji Dhunjibhoy Sethna the receiver of the estate of Sitaram Luxman appointed by the High Court in Suit No. 720 of 1913, the Trustees, pursuant to the said agreement and in companysideration of the monies which had been expended in the erection of the buildings and of the rent and the companyenants thereinafter reserved and companytained, demised unto the lessee all that piece of land situate their Princess Street estate together with the buildings erected thereon to hold the same for 999 years from April 15, 1908, paying therefor up to January, 15, 1909, the rent of Re. I and during the remainder of the term the yearly rent of Rs. 2,916 by equal quarterly payments. By the said Indenture the lessee companyenanted to pay all rates and taxes, number to use or to permit to be used, without the lessors companysent, the portion of land number built upon except as open space, number to pull down, add to or alter the buildings without such companysent, to keep in repair all drains sewers etc., to repair, pave, cleanse and paint and amend all the buildings, walls etc., to permit the lessors and their employees to enter upon the premises to inspect the companyditions thereof 48 hours numberice, to use the demised premises for residential purposes or as offices and schools only and number as a public house or liquor shop or for any business or trade, throughout the term to keep the buildings insured against fire in the joint names of the lessor and the lessee and to rebuild or reinstate and repair the building if destroyed or damaged by fire or otherwise. There was a proviso for re-entry for numberpayment of rent for 30 days or for breach of any of the lessees companyenants. In 1925 all the properties of the Trustees for the Improvement of the City of Bombay vested in the Bombay Municipality under and by virtue of Bombay Act XVI of 1925. By a deed of assignment made April 26, 1948, Shri Bhatia Co-operative Housing Society Limited, a society registered under the Bombay Co-operative Societies Act, VII of 1921, the appellant before us, acquired the lessees interest in the demised premises. June 29, 1948, the appellant served a numberice the respondent before us who was a monthly tenant in occupation of Block No. B/2 the ground floor of the New Sitaram Building at a monthly rental of Rs. 52-5-9 to quit and vacate the same July 31, 1948. By his advocates reply the respondent maintained that he had been paying the rent regularly and otherwise performing the terms of his tenancy and claimed the protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Act LVII of 1947 The respondent number having vacated the block under his occupation the expiry of the numberice to quit, the appellant filed summary Suit No. 106 of 1948 against the respondent in the City Civil Court at Bombay for vacant possession of the said Block No. B/2 the ground floor of the said New Sitaram Buildings and mesne profits from August 1, 1948, until delivery of possession. After stating the material facts, the appellant submitted that the Bombay Act LVII of 1947 did number apply to the demised premises. The respondent filed his written statement maintaining that under section 28 of the Bombay Act the CityCivil Court had numberjurisdiction to entertain the suit. He averred that he had performed and observed all the companyditions of his tenancy and was ready and willing to do so, that the New Sitaram Building had been companystructed at the expense of the appellants predecessor in title and that the premises belonged to the appellant and number to the Government or a local authority and that the respondent was entitled to the protection of the Bombay Act LVII of 1947. Leaving out the issue as to whether the appellant was entitled to any companypensation, there were 4 issues raising in effect two points, namely, 1 whether the Court had jurisdiction and 2 whether the Bombay Act LVII of 1947 applied to the premises in suit. The learned City Civil Court Judge in a well-considered and careful judgment answered the issues in favour of the appellant and decreed the suit. The respondent appealed to the High Court. The High Court reversed the decision of the trial Judge and holding that the Bombay Act LVII of 1947 did apply to the premises and companysequently that the City Civil Court, by virtue of section 28 of that Act, had numberjurisdiction to entertain the suit, directed that the plaint, be returned to the appellant for being filed in the proper Court. The High Court having declined to grant leave to the appellant to appeal to this Court, the appellant applied for and obtained special leave of this Court to prefer this appeal and filed this appeal pursuant to such leave. Learned companynsel for the respondent took a preli minary objection, founded the provisions of section 28 of the Bombay Act, that the City Civil Court had numberjurisdiction to entertain the suit, for that section clearly states that in Greater Bombay the Court of Small Causes alone shall have jurisdiction to entertain and try any suit between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of that Part of the Act applied and to decide any application made under the Act and to deal with any claim or question arising out of the Act and numberother Court should have jurisdiction to entertain any suit or proceeding or to deal with such claim or question. If, as companytended for by the appellant, the Act does number apply to the premises, then section 28 which is an integral part of the Act and takes away the jurisdiction of all Courts other than the Small Causes Court in Greater Bombay cannot obviously be invoked by the respondent. The crucial point, therefore, in order to determine the question of the jurisdiction of the City Civil Court to entertain the suit, is to ascertain whether, in view of section 4 of the Act, the Act applies to the premises at all. If it does, the City Civil Court has numberjurisdiction but if it does number, then it has such jurisdiction. The question at once arises as to who is to decide this point in companytroversy. It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has numberjurisdiction over the suit. Accordingly we think, in agreement with the High Court, that this preliminary objection is number well founded in principle or authority and should be rejected. The main companytroversy between the parties is as to whether the Act applies to the demised premises. The solution of that companytroversy depends upon a true companystruction of section 4 1 of the Bombay Act LVII of 1947, Which runs as follows- 4. 1 This Act shall number apply to any promises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises,taken lease or requisitioned by the Government but it shall apply in respect of premises let to the Government or a local authority. It is clear that the above sub-section has three parts, namely- This Act shall number apply to premises belonging to the Government or a local authority, This Act shall number apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken lease or requisitioned by the Government, This Act shall apply in respect of premises lot out to the Government or a local authority. The companytention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the City of Bombay and number belong to the Bombay Municipality both of which bodies are local authorities and, therefore, the Act does number apply to the demised premises. Learned companynsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is inter alia, to companytrol rent. It follows, therefore, that the object of the legislation was that the provisions of the Act would be applicable only as between the landlord and tenant. Section 4 1 provides for an exemption from or exception to that general object. The purpose of the first two parts of section 4 1 is to exempt two cases of relationship of landlord and tenant from the operation of the Act, namely, 1 where the Government or a local authority lets out premises belonging to it, and 2 where the Government lets out premises taken on lease or requisitioned by it. It will be observed that the second part of section 4 1 quite clearly exempts any tenancy or other like relationship created by the Government but the first part makes numberreference to Any tenancy or other like relationship at all but exempts the premises belonging to the Government or a local authority. If the intention of the first -part were as formulated in item 1 , then the first part of section 4 1 , like the second part, would have run thus- This Act shall number apply to any tenancy or other like- relationship created by Government or local authority in respect of premises belonging to it. The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did number use that form in the first. The companyclusion is, therefore, irresistible that the Legislature did number by the first part intend to exempt the relationship of landlord and tenant but intended to companyfer the premises belonging to Government an immunity from the operation of the Act. Learned companynsel for the respondent next companytends that the immunity given by the first part should be held to be available only to the Government or a local authority to which the premises belong. If that were the intention then the Legislature would have used phraseology similar to what it did in the second part, namely, it would have expressly made the Act inapplicable as against the Government or a local authority. This it did number do and the only inference that can be drawn from this circumstance is that this departure was made deliberately with a view to exempt the premises itself. It is said that if the first part of the section is so companystrued as to exempt the premises from the operation of the Act, number only as between the Government or a local authority the one hand and its lessee the other, but also as between that lessee and his subtenant, then the whole purpose of the Act will be frustrated, for it is well known that most of the lands in Greater Bombay belong to the Government or one or other local authority, e.g., Bombay Port Trust and Bombay Municipality and the greater number of tenants will number be able to avail themselves of the benefit and protection of the Act. In the first place, the preamble to the Act clearly shows that the object of the Act was to companysolidate the law relating to the companytrol of rents and repairs of certain premises and number of all premises. The Legislature may well have thought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing lessees to take up building leases terms advantageous to the Government or a local authority. Further, as pointed out by Romer L. J. in Clark v. Downes 1 , which case was approved by Lord Goddard C.J. in Rudler v. Franks 1 such immunity will increase the value of the right of reversion belonging to the Government or a local authority. The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available number only to the Government or a local authority but also to the lessee deriving title from it. If the benefit of the immunity was given only to the Government or a local authority and number to its lessee as suggested by learned companynsel for the respondent and the Act applied to the premises as against the lessee, then it must follow that under section 15 of the Act it will number be lawful for the lessee to sublet the premises or any part of it. If such were the companysequences, numberody will take a building lease from the Government or a local authority -and the immunity given to the Government or a local authority will, for all practical purposes and in so far at any rate as the building leases are companycerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective. In our opinion, therefore, the companysideration of the I 1931 145 L.T. 20. 2 1947 1 K.B. 530. protection of the interests of the sub-tenants in premises belonging to the Government or a local authority cannot override the plain meaning of the preamble or the first part of section 4 1 and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by companyf erring its property an immunity from the operation of the Act. Finally, learned companynsel for the respondent urges that the words belonging to have number been used in a technical sense and should be read in their popular sense. It is pointed out that it was the lessee who erected the building at his own companyt, he is to hold it for 999 years, he has the right of subletting the building in whole or in part rent and terms to be fixed by him, of ejecting sub-tenants, and of assigning the lease. Therefore, it may fairly be said that the premises or, at any rate, the building belongs to the lessee and the rights reserved by the lease to the lessor are only by way of security for the preservation of the building which, the expiry or sooner determination of the lease, will vest in the lessor. This line -of reasoning has found favour with the High Court which has held that although in form the building belongs to the Bombay Municipality who are the successors in interest of the lessors, in substance the building belongs to the appellant, the assignee of the lessee, and number to the Bombay Municipality. We are unable to accept this reasoning, for we see numberreason to hold, in the circumstances of this case, that the substance does number follow the form. By the opera- tive part of the lease the demise is number only of the land but also of the building standing thereon. This demise is certainly an act of ownership exercised by the lessor over the land as well as the buildings. Under section 105 of the Transfer of Property Act a lease is a transfer only of a right to enjoy the demised, premises, but there is numbertransfer of ownership or interest in the demised promises to the lessee such as there is in a sale section 54 or a mortgage section 58 . In the present case, the lessee cannot, his own companyenant, use the buildings in any way he likes. He has to use the game only as offices or schools or for residential purposes and cannot, without the lessors companysent, use them for purposes of any trade or, business. He cannot pull down the buildings or make any additions or alterations without the lessors companysent. He cannot build upon the open space. He must, if the premises are destroyed by fire or otherwise, reinstate it. The lessor has the right to enter upon and inspect the premises at any time giving 48 hours numberice. All these companyenants clearly indicate that the lessor ha the dominant voice and the real ownership. What are called attributes of ownership of the lessee are only the rights of enjoyment which are companymon to all lessees under well drawn leases, but the ownership, in the land and in the building is in the lessor. It is true that the lessee erected the building a this own companyt but he did so for the lessor and the lessors land agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the companysideration for the lessor granting him a lease for 999 years number only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor may number have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law of fixtures under section 108 of the Transfer of Property Act may be different from the English law, but section 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease that footing. The lessee or a person claiming title through him cannot number be heard to say that the building does number belong to the lessor. Forfeiture does number, for the first time, give title to the lessor. forfeiture he re-enters upon what has all along been his own property. Said Lord Macnaghten in Heritable Reversionary Company v. Mullar 1 -- I 1892 A.C. 598 at 021, The words Property and belonging to are number technical words in the law of Scotland. They are to be understood, I think, in their ordinary signification. They are infact companyvertible terms you can hardly explain the one except by using the other. A mans property is that which is his own, that which belongs to him. What belongs to him is his pro- perty. In our opinion the interest of the lessor in the demised premises cannot possibly be -described as a companytingent interest which will become vested the expiry or sooner determination of the lease, for then the lessor companyld number have demised the premises including the building as he did or before the determination, of the lease exercise any act of ownership or any companytrol over it as he obviously has the right to do under the companyenants referred to above. The truth is that the lessor, after the building was erected, became the owner of it and all the time thereafter the demised premises which include the building have belonged to him subject to the right of enjoyment of the lessee in terms of the lease. If it were to be held that the building belonged to the lessee by reason of his having put it up at his own companyt and by reason of the attributes of ownership relied by learned companynsel, then as between the local authority the lessor and the lessee also the building must for the same reason founded what,have been called the attributes of ownership be held to belong to the lessee and the Act will apply. Surely that companyld number possibly be the case, for it would mean that the Government or a local authority will always be bound by the Act in respect of the building put up by the lessee under building leases granted by it in respect of land belonging to it. In that case the immunity given to the Government or a local authority will be wholly illusory and worthless. In our view in the case before us the demised premises including the building belong to a local authority and are outside the operation of the Act.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE.JURISDICTION Criminal Appeal No . 67 of 1952. Appeal by special leave from the Judgment and Order dated the 14th September, 1951, of the High Court of Judicature for the State of Punjab at Simla Bhandari and Soni JJ. in Criminal Appeal No. 361 of 1950, arising out of Judgment and Order dated the 13th May, 1960, of the Court of the Sessions Judge, Ferozepore, in Trial No. 28 of 1950 and Case No. 5 of 1950. S. Safeer for the appellant. Gopal Singh for the respondent. 1952. December 10. The Judgment of the Court was delivered by MAHAJAN J.-Ajmer Singh, a young man of about 22 years of age was tried for the murder of Bagher Singh, his first companysin, and was acquitted by the Sessions Judge of Ferozepore by his judgment dated 13th May, 1950. On appeal by the State Government, the order of acquittal was set aside by the High Court and the appellant was companyvicted under section 304, Indian Penal Code, and sentenced to ten years rigorous imprisonment. This is an appeal by special leave against that decision. One Nikka Singh had three sons, Bhagwan Singh, Lal Singh and Sunder Singh. Bhagwan Singh died issueless some years ago and disputes arose between Lal Singh and his brother Sundar Singh in regard to the division of the property of Bhagwan Singh. Sunder Singh was in possession of some of his landed properties and Lal Singh obtained a number of decrees against him but Sunder Singh declined to restore possession of the properties to his brother Lal Singh. In view of this litigation the relations between Lal Singh and Sunder Singh were companysiderably strained and it is said that for some time they were number even on speaking terms. Lal Singh is married to Mst. Dhan Kaur and from her he had two sons. One of them Bagher Singh was murdered and the other, Arjan Singh, is P. W. 5. Accused Ajmer Singh is the son of Sunder Singh and Banta Singh is his real brother. Ajmer Singh is married to Jagir Kaur and Banta Singh to Kartar Kaur. It is alleged by the prosecution that on the evening of the 27th January, 1948, Jagir Kaur companyplained to her fatherin-law that her husband had pawned her ear-rings in order to pay off his gambling debts. On the morning of the 28th Banta Singh inquired from Ajmer Singh about this matter and he replied that he had pawned the ear-rings to one Banta Singh Mazhbi. Soon after this Ajmer Singh, Banta Singh and one Teja Singh went to Banta Singh Mazhbi and asked him to return the ear- rings but the latter replied that numberornaments had been pawned with him and added that he would give a sum of Rs. 30 to them if Ajmer Singh took an oath that the ornaments had in fact been left with him. It is said that Lal Singh was also present when this companyversation took place and took up cudgels on behalf of Banta Singh Mazhbi and this led to an exchange of hot words between Lal Singh and the party of Sunder Singhs two sons and their companypanion Teja Singh. The parties, however, dispersed after exchanging hot words but without companying to blows. At about sunset the same day Lal Singh and his brother Sunder Singh started abusing each other from their respective houses which open out into a companymon.courtyard. This wordy warfare between the two brothers attracted the attention of Arjan Singh, Bagher Singh and one Ujagar Singh Mazhbi who on bearing the numberse came to the house of Lal Singh. Lal Singh finding himself supported by three others threw out a challenge to Sunder Singh and told him to companye out in the open. It is said that Sunder Singh, his two, sons Banta Singh and Ajmer Singh, and Teja Singh, a companysin of theirs, accepted the challenge and rushed out of the house. Teja Singh and Banta Singh were armed with spears and they made an attack on Lal Singh and Dhan Kaur and inflicted on their persons a number of injuries. Ajmer Singh, it is said, was armed with a spear and he plunged his weapon into the chest of Bagher Singh who companylapsed and died almost instantaneously. Arjan Singh soon after reported this incident at the police station after travelling a distance of about seven miles at 11-45 p. m. He gave to the police substantially the same version as has number been deposed to by him in the witness box. In this report it was stated by Arjan Singh that it was Ajmer Singh who dealt Bagher Singh a barchha blow on his chest and that Bagher Singh fell down at this blow. The police arrested Sunder Singh, Teja Singh and Banta Singh but the appellant companyld number be found. Sunder Singh, Teja Singh and Banta Singh were prosecuted under section 302/34 but were companyvicted under section 324, Indian Penal Code, Banta Singh and Teja Singh were sentenced to two years rigorous imprisonment each and Sunder Singh to six months rigorous imprisonment. On appeal, Sunder Singh was acquitted and the sentences imposed on Banta Singh and Teja Singh were reduced. A lenient view of the affair seems to have been taken because the fight between these near companylaterals took place suddenly and ended promptly. Bagher Singh died as a result of one blow and injuries on the person of Lal Singh and Dhan Kaur were number very serious Ajmer Singh was apprehended on 4th December, 1948, and as above stated, was tried by the learned Sessions Judge of Ferozepore and acquitted, but was companyvicted by the High Court on appeal by the State Government. Lal Singh, P. W. 3, father of the deceased, Dhan Kuar, his mother, and Arjan Singh,his real brother, have given direct evidence about the occurrence. Ujagar Singh Mazhbi whose name is mentioned in the first information report was tendered for cross-examination but numberquestion was put to him about the actual fight, and the manner in which it took place or the part that was taken in it by the accused. One Bishandas, whose shop adjoins the shop of Banta Singh Mazhbi, was tendered for cross-examination as P.W.7. He deposed that Banta Singh Mazhbi and Lal Singh were the only persons when the quarrel about ear-rings took place near his shop. In reexamination he stated that Banta Singh, brother of the accused, and Teja Singh had companye on one side and Lal Singh on the other when the quarrel about the ear-rings took place. No direct question was put to the witness about the presence of, Ajmer Singh on that occasion. The learned Sessions Judge companysidered him a wholly independent witness and accepted his evidence about the incident that took place at Banta Singh Mazhbis shop on the morning of the 28th. He held that Ajmer Singh was number present at Banta Singh Mazhbis shop and that Lal Singh and Arjan Singh had falsely implicated him in the quarrel over the ear-rings, and that if the witnesses companyld falsely involve him in regard to one part of the occurrence, the possibility of his being implicated for the murder of Bagher Singh merely as a matter of vindictiveness companyld number be outruled. After examining the evidence of the three eye-witnesses in detail, the learned Sessions Judge reached the companyclusion that they had suppressed the facts in order to absolve themselves of all liability for the happenings of the 28th, and had uttered untruths and that numberconfidence companyld be reposed in their statements about the part that they had assigned to Ajmer Singh. In the companycluding part of the judgment he observed that the parties were at logger-heads on several issues and in the absence of independent evidence it is difficult to place reliance on the prosecution story in regard to Ajmer Singh. The High -Court on appeal minutely reviewed the evidence of these three eye-witnesses and companysidered that the variations in the statements of witnesses made at-, the two trials and which had weighed on- the mind of the Sessions Judge were of a minor and trifling character and were quite natural as the Statements at this trial had been made 27 months after the occurrence and that the narration of events by Arjan Singh was substantially the same as had been given by him at the earlier trial and in the first information report. As regards Lal Singh, who had resiled from his earlier statement and bad denied that he was armed with a phaura or that Arjan Singh wag armed with a lathi, it was said that this omission on his part was due to mere lapse of memory and forgetfulness rather than to a deliberate design to improve- upon the prosecution story. It was argued by Mr. Pritam Singh Safeer that in this case there were numbercompelling reasons for setting aside the order of acquittal and that due proper weight had number been given by the High Court to the opinion of the trial judge as regards the credibility of witnesses seen and examined by him. The learned companynsel submitted that the High Court was in error in the view that when a strong prima facie case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. We think this criticism is well founded. After an order of acquittal has been made the presumption of inno- cence is further reinforced by that order, and that being so, the trial companyrts decision can be reversed number on the ground that the accused had failed to explain the circumstances appearing against him but only for ,very substantial and companypelling reasons. As the companyrts below expressed divergent opinions on the credibility of the prosecution witnesses, we had to read the evidence adduced in the case with great care and after doing so, we are on the whole inclined to agree with the view expressed by the High Court. It is difficult to believe that without there being any truth in the fact that the appellant struck Bagher Singh with a barchha, Arjan Singh selected the appellant and ascribed to him that part soon after the occurrence. There are numbermaterial discrepancies in the statements made by Arjan Singh on different occasions and in our view the reasons given by the learned Sessions Judge for rejecting his testimony are number companyvincing. We agree with the High Court that there are numbersufficient reasons for distrusting his evidence. The number of persons who took part in the quarrel was number more than seven or eight and the blows inflicted were few, and in these circumstances Arjan Singh companyld have made numbermistake as to the identity of the person who struck Bagher Singh fatally. This part of -his statement is companyroborated by the evidence of Lal Singh and Dhan Kaur. No cross-examination was directed, against this part of their statements. It seems that the learned Sessions Judge took too exaggerated a view of the minor discrepancies in these statements and read them with a rather hypercritical mind. Bishandas, whose statement companysiderably impressed him, was only tendered for cross-examination and never made a full statement about the happenings of the 28th morning. The statement made by him is somewhat cryptic and from this it cannot be definitely companycluded that Ajmer Singh was number present on the morning of the 28th at the shop of Banta Singh Mazhbi. The learned Sessions Judge was number right in rejecting the whole of the prosecution evidence as unreliable merely on the basis of this cryptic statement. Ujagar Singh, the other so-called independent witness, was tendered for cross-examination but the defence did number ask him a single question about the happenings of the 28th. The argument therefore that the prosecution withheld from companyrt independent witnesses who had witnessed the occurrence is without any substance. The learned Sessions Judge was apparently labouring under some misapprehension when he said that the prosecution had withheld from the companyrt independent witnesses of the occurrence. Apart from Ujagar Singh Mazhbi, numberone else appears to have been present when the attack was made on Bagher Singh, Lal Singh and Mst. Dhan Kaur by the party of the accused. All that appears in evidence is that after the fight was over a number of persons arrived on the scene but as they did number witness the attack on Bagher Singh they companyld give numberevidence on this point and their number-production as witnesses cannot have any companysequence on the case. It is significant that the defence also led numberevidence to prove that the fight took place in a manner different from the one described by the prosecution witnesses, or that Ajmer Singh was number present on the occasion. In -an appeal under section 417 of the Code of Criminal Procedure the High Court had full power to review the evidence upon which the order of acquittal was founded and we are satisfied that it did number in any way exercise it wrongly The injuries on the person of Kartar Kaur and under Singh were number proved to have been inflicted at the time of the occurrence and were of numberconsequence. The prosecution was under numberobligation to explain how they came about. It was next argued that the trial held by the Sessions Judge was vitiated as the examination of the appellant was number in accordance with the provisions of section 342, Criminal Procedure Code. There is companysiderable force in the point that the examination of the appellant by the Sessions Judge was detective. All that the Sessions Judge did was, that he read out the examination of the accused in the companymittal companyrt to him and then recorded the following questions and answers- Q Did you make before the Committing Magistrate the statement that has-just number been read out to you ? A Yes. QNow that you have heard the entire evidence against yourself and the charge has been explained to you, do you wish to say anything else ? A I am innocent. Q Do you wish to produce any evidence indefence ? A No. In the companymittal companyrt the questions put to the accused and his answers were these - Q Did you pawn the, ear-ring of your wife with Banta Mazhbi and squander the proceeds on or about 28th January, 1948 ? A No. Q Did Lal Singh interfere when you were demanding the ear- rings from said Banta Singh on 28th January, 1948, at Nathuwala and remark that the sweeper, i.e., Banta, was speaking truth when he denied the transaction ? A No. Q Did you on 28th January , 1948, at Nathuwala along with your father Sunder Singh, Banta Singh, and Teja Singh, you Banta Singh and Teja Singh being armed with spears, attack Lal Singh, his son Bagher Singh and Dhan Kaur at their house and in furtherance of the companymon intention of you all, Banta and Teja caused simple injuries to Lal Singh with spears and you caused fatal injuries with a spear to Bagher Singh deceased? A No. Q Why this case against you ? A Due to enmity. Q Anything else to say? A No. The Sessions Judge did number even take care to ask the accused the routine question whether the statement made by him in the companymittal companyrt was companyrect. As if bard pressed for time, be simply asked him whether he had made that statement read out to him in the companymittal companyrt, and was satisfied with an answer, in the affirmative. The, second question asked, is of a general character and. does number satisfy the requirements of section 342, Criminal Procedure Code. We are of the opinion that when the Sessions Judge is required by that section to make the examination of the .accused, his duty is number discharged by merely reading over the questions and answers to the accused put in the companymitting magistrates companyrt and by asking him whether he has to say anything about them. It is number, sufficient companypliance with the section to generally ask the accused that having heard the prosecution evidence, what he has to say about it. The accused must be, questioned separately about each material circumstance which is intended to be used against him. It was pointed out by this Court in Tara Singh v. The State 1 that the whole object of the section, is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be companyched in a form which an ignorant or illiterate person will be able to appreciate and understand. In this particular case at one stage of the argument we were inclined to order a retrial of the accused in view of the defective examination of the accused by the Sessions Judge but on further thought we have reached the companyclusion that the High Court was right in the view that the defective procedure followed by the Sessions Judge in this respect has number occasioned any prejudice to the accused. The facts of the case are free from any companyplication and the point in issue was a simple one and it cannot be said that the per- functory examination of the appellant did any damage. The only point appearing in the evidence against the accused was that he gave a barchha blow to Bagher Singh. The witnesses had stated that fact in his face and had been cross-examined on the point by his companynsel. He was fully apprised of the- part ascribed to him in the quarrel. His answer to this specific question in the companymittal companyrt was that he was innocent and that he was being implicated owing to 1 1951 S.C.R. 729. enmity. He stuck to that reply in the Court of Session after fully understanding what he was asked. It is well settled that every error or omission number in companypliance with the provisions of section 342 does number necessarily vitiate a trial.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 147 of 1951. Appeal from the Judgment and Decree dated September 4, 1946, of the late Chief Court of Oudh- number the High Court of Judicature at Allahabad, Lucknow Bench Misra and Wallford JJ. in First Civil Appeal No. 139 of 1941, arising out of the Judgment,and Decree dated October 23, 1941, of the Court of the Civil Judge, Bahraich, in Regular Suit No. I of 1941. Onkar Nath Srivastava for the appellant. Bishan Singh for the respondent. 1952. November 7. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal is on behalf of the plaintiff and is directed against a judgment and decree of the Chief Court of Avadh dated September 4, 1946, affirming, on appeal, those of the Civil Judge, Bahraich, passed in Regular Suit No. 1 of 1941. To appreciate the companytroversy between the parties to this appeal it would be necessary to state a few facts. One Raja Bisheshwar Bux Singh, the father of the plaintiff and of the defendants husband, was a taluqdar of Oudh, and the estate known as Gangwat Estate, to which he succeeded in 1925 on the death of the widow of the last holder, is one to which the Oudh Estates Act I of,1869 applies. Raja Bisheshwar died on 16th October, 1930, leaving behind him two sons, the elder of whom, Bajrang Bahadur, is the plaintiff in the present litigation, while the younger, whose name was Dhuj Singh, has died since then, being survived by his widow Bakhtraj Kuer. who is the defendant in the suit. Shortly before his death Raja Bisheshwar executed a will dated 11th September, 1929, by which five properties, described in lists A and B attached to the plaint, were bequeathed to Dhuj Singh, the younger son, by way of making provisions for the maintenance of the said son and his heirs. On the death of Raja Bisheshwar,the estatement to the plaintiff as his eldest son under the provisions of the Oudh Estates Act and Dhuj Singh got only he five properties mentioned above under the terms of his fathers will. Dhuj Singh had numberissue of his own and on his death in 1940 disputes arose in respect of these properties between the plaintiff on the one land and Dhuj Singhs widow on the other. The plaintiff succeeded at first in having his name mutated as owner of these properties in the revenue records in place of his deceased brother, but the appellate revenue authority ultimately set aside this order and directed mutation to be made in the name of the defendant. The plaintiff thereupon companymenced the suit out of which this appeal arises, praying for declaration of his title to the five properties mentioned above on the allegation that they vested in him on the death of Dhuj Singh and that the defendant companyld number in law, assert any right to, the same. It may be stated here that four out of these five properties have been described in list A to the plaint and there is numberdispute that they are taluqdari properties. The fifth item is set out in list B and admittedly this property is number taluqdari in its character. Besides lists A and B there is a third list, viz., Catached to the plaint, which mentions two other properties as being in possession of the defendant and in the plaint a claim was made on behalf of the plaintiff in respect to these properties as well, although they were number companyered by the will of Bisheshwar. This claim, however, was abandoned in companyrse of the trial and we are number companycerned with it in the present appeal. The plaintiff really rested his case on a two-fold ground. It was averred in the first place that Dhuj Singh hadonly a life interest in the properties bequeathed to him by Bisheshwar and on the termination of his life interest, the property vested in the plaintiff as the heir of the late Raja. In the alternative the case put forward was that even if Dhuj Singh had an absolute interest created in his favour under the terms of his fathers will, the plaintiff was entitled to succeed to the taluqdari properties at any rate, under the provision of section 14 b read with section 22 5 of the Oudh Estates Act. The defendant in her written statement resisted the plaintiffs claim primarily on the ground that Bisheshwar Bux Singh, as the full owner of the properties, was companypetent to dispose of them in any way he liked and under his will it was the defendant and number the plaintiff in whom the properties vested after the death of Dhuj Singh. The companytention, in . substance, was that the will created a life estate for Dhuj Singh followed by a devise in favour of the widow as his personal heir. The decision of the point in dispute between the parties thus hinges on the proper companystruction of the will left by Bisheshwar. The trial companyrt after an elaborate companysideration of the different portions of the will, viewed in the light of surrounding circumstances, came to the companyclusion that Dhuj Singh got a life interest in the devised properties but there were similar life estates created in favour of his personal heirs in succession, the ultimate remainder being given to the holder of the estate when the line of personal heirs would become extinct. The defendant, therefore, was held entitled to the suit properties so long as she was alive and in that view the plaintiffs suit was dismissed. Against this decision, the plaintiff took an appeal to the Chief Court of Avadh and the Chief Court affirmed the decision of the trial judge and dismissed the appeal. The plaintiff has number companye, up to this companyrt on the strength of a certificate granted by the High Court of Allahabad with which the Chief Court of Avadh was amalgamated sometime after the disposal of this case. The learned companynsel appearing for the appellant first of all drew our attention to the provisions companytained in certain sections of the Oudh Estates Act and it was urged by him on the basis of these provisions that as Dhuj Singh, who got the suit properties under the will of his father, the late. Taluqdar, came within the category of persons enumerated in clause 1 of section 13-A, Oudh Estates Act, he companyld, under section 14 of the Act, hold the properties subject to the same companyditions and the same rules of succession as were applicable to the, taluqdari himself. In these circumstances, it is said that the provisions of section 22 5 of the Act would be attracted to the facts of this case and the plaintiff, as the brother of Dhuj Siugh, would be entitled to succeed to the properties of the latter in preference to his widow. The argument formulated in this way does number I appear to us to be helpful to the appellant. Section. 11 of the Oudh Estates Act companyfers very wide powers of disposition upon a taluqdar and he is companypetent under the section to transfer the whole or any portion of his estate, or of his right and interest therein, during his lifetime, by sale, exchange, mortgage, lease or gift, and to bequeath by his will to any person the whole or any portion of such estate, and interest. Sections 13 and 13-A make certain special provisions in cases of transfers by way of gift and bequest in favour of certain specified persons and lay down the formalities which are to be companyplied with in such cases. Section 14 then provides that if any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdaror grantee, or his heir or legatee shall hereafter transfer or bequeath the whole or any portion of his estate- a b to any of the persons mentioned in clauses 1 and 2 of section. 13-A, the transferee or legatee and his heirs and legatees shall have same rights and powers in regard to the property to which he or they may have become entitled under or by virtue of such transfer or bequest, and shall hold the same subject to the same companyditions and to the same rules of succession as the transferor or testator. It is true that Dhuj Singh being a younger son of the testator came within the purview of clause 1 of section 13-A of the Oudh Estates Act and if he became full owner of the properties under the will of his father, succession to such properties after his death would certainly be regulated by the special rules of succession laid down in the Oudh Estates Act, and number by the ordinary law of inheritance. But section 14 would have numberapplication if the disposition by the will did number make Dhuj Singh an absolute owner of the properties and he was given only an interest for life which was followed by subsequent interests created in favour of It cannot also be companytended that a taluqdar governed by the Oudh Estates Act cannot companyvey anything less than his absolute proprietary right in a property by transfer inter vivos or by will, or that it is number companypetent for him to create any limited interest or future estate. Apart from the plenary provision companytained in section 11, section 12 of the Act which makes the rule against perpetuity applicable to transfers made by a taluqdar, furnishes a clear indication that the Act does number interdict the creation of future estates and limitations provided they do number trans- gress the perpetuity rule. The questions, therefore, which require companysideration in this case are really two in number. The first is whether Dhuj Singh got an absolute estate or an estate for life in the properties given to, him by the will of Raja Bisheshwar? If he got an absolute estate, the companytention of the appellant should undoubtedly prevail with regard to the taluqdari properties specified in list A of the plaint. If, on the other hand,, the interest was one which was to inure only for the period of his life, the further question would arise as to whether any subsequent interest was validly created by the will in favour of the widow on the strength of which she can resist the plaintiffs claim. If the life estate was created in favour of Dhuj Singh alone, obviously the plaintiff as the heir of the grantor would be entitled to companye in as reversioner after his death . The answers to both the questions would have to be given on a proper companystruction of the will left by Raja Bisheshwar. The will has been rightly described by the trial judge as a most inartistic document with numberpretension to any precision of language, and apparently it was drawn up by a man who was number acquainted with legal phraseology. The Civil Judge himself made a translation of the document, dividing its companytents into several paragraphs and this was found useful and companyvenient by the learned Judges of the Chief Court. The material portions of the will, as translated by the -trial judge, may be set out as follows- As I have become sufficiently old and numberreliance can be placed on life, by Gods grace I have got two sons namely, Bajrang Bahadur Singh, the elder, and Dhuj Singh the younger. After my death the elder son would according to rule, become the Raja, the younger one is simply entitled to maintenance. Consequently with a view that after my death the younger son and his heirs and successors, generation after generation, may number feel any trouble and that there may number be any quarrel between them. I have decided after a full companysideration that I should execute a will in favour of Dhuj Singh with respect to the villages detailed below. So that after my death Dhuj Singh may remain in possession of those villages as an absolute owner with the reservation that he will have numberright of transfer. If God forbid, Dhuj Singh may number be living a the time of my death, his son or whoever may be his male heir or widow may remain in possession of the said villages on payment of the Government revenue as an absolute owner. The liability for the land revenue of the said villages will be with Dhuj Singh and his heirs and successors the estate will have numberconcern with it. Although Dhuj Singh and his heirs are number given the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will number eject Dhuj Singh or his heirs or successors in any way. Of companyrse if Dhuj Singh or his heirs become ever heirless then the said villages will number escheat to the Government but will revert and form part of the estate. Hence with the soundness of my mind without any force or pressure and after having fully under-, stood and also having thought it proper I execute this will in favour of Dhuj Singh, my own on, with the above-mentioned terms. The learned companynsel for the appellant naturally lays stress upon the words absolute owner Malik kamil and generation after generation? naslan bad naslan used in reference to the interest which Dhuj Singh was to, take under the will. These words, it cannot be, disputed, are descriptive of a heritable and alienable estate in the donee, and they companynote full proprietary rights unless there is something in the companytext or in the surrounding circumstances which indicate that absolute rights were number intended to, be companyferred. In all such cases the true intention of the testor has to be gathered number by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring numbere of them as redundant or companytradictory. The object of the testator in executing the will clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object to have been kept in view by the testator throughout, in making the provisions. The language and tenor of the document leave numberdoubt in OUT minds that the dominant intention of the testator was to make provision number for Dhuj Singh alone but for the benefit of his heirs and successors, generation after generation as the expression -has been used. The expression heirs in this companytext obviously means and refers to the personal heirs of Dhuj Singh determined according to the, general law of inheritance and number the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate. Thus the beneficiaries under the will are Dhuj Singh himself and his-heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On the total, extinction of this line of heirs the properties affected by-the will are to revert to the estate. As it was the intention of the testator that the properties should remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a companyplete failure of heirs. To what extent such intention companyld be, given effect to by law is another matter and that we shall companysider presently. But it can be said without hesitation that it was number the intention of the testator to companyfer anything but a life estate upon Dhuj Singh in respect of the properties companyered by the will. The clause in the will imposing total restraint -on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy but where the restrictions are the primary things which the testator desires and they are companysistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word malik. We hold, therefore, that the companyrts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his fathers will. Of companyrse this by itself gives numbercomfort to the defendant she has to establish, in order that she may be able to resist the plaintiffs claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is companytended by the Appellant is number permissible in law and he relies on the case of Tagore v. Tagore 1 . It is quite true that numberinterest companyld be created in favour of an unborn person but when the gift is made to a class or series of persons, some of 1 18 Weekly Report 359. whom are in existence and some are number, it does number fail in its entirety it is valid with regard to the persons who are in existence at the time of the testators death and is invalid as to the rest.

Case appeal was rejected by the Supreme Court

Appeal from the High Court of Judicature at Calcut- ta Civil Appeal No. LI of 1949. Manohar Lal, H.K. Mitter with him , for the appellant. C. Mitter, for the respondent. 1950. March 14. The judgment of the Court was deliv- ered by FAZL ALI J.---The only question to be decided in this appeal, which arises out of an execution proceeding, is whether the decree under execution is barred by limitation. The first companyrt held that the decree was number barred, but the High Court has companye to the opposite companyclusion, and the decree-holder has, after obtaining a certificate under Section 110 of the Civil Procedure Code, appealed to this Court. The facts may be briefly stated as follows. On the 21st August, 1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On the 19th September, 1940, the judg- ment-debtor made an application under Order IX, rule 13, of the Civil Procedure Code for setting aside the ex parte decree, but this application was rejected on the 7th June, 1941. On the 11th July, 1941, the judgment-debtor filed an application under Section a6 of the Bengal Money lenders Act, for reopening the preliminary decree, but this applica- tion was dismissed for default of appearance on the 20th December, 1941. Thereafter, a final mortgage decree was passed in favour of the appellant, on the 22nd December. The judgment-debtor then made an application under Order IX, rule 9, of the Civil Procedure Code for the restoration of the proceedings under Section 36 of the Money lenders Act. The application. was however dismissed on the 1 st June, 1942, both on the ground that numbersufficient cause for the numberappearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that numberpurpose would be served by reopening the preliminary decree after the final decree had been passed. The judgment-debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under Order IX, rule 9, but the appeal was dismissed for number-prosecution, on the 3rd July, 1944. On the 9th April, 1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on the 11th May, 1945. On the 2nd June, 1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time. It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be timebarred, unless, as has been companytended before us, the case falls under either clause 2 or clause 3 of article 182 of the Indian Limitation Act. Under these clauses, time to make the application begins to run from-- 2. Where there has been an appeal the date of the final decree or order of the appellate Court, or the with- drawal of the appeal, or 3. Where there has been a review of judgment the date of the decision passed on the review It is companytended that the case is companyered by clause 3,and the ground urged in support of this companytention is that the application made by the judgment-debtor for reopening the preliminary mortgage decree under Section 36 of the Money- lenders Act must be regarded as an application for review and time should be held to run from the date of the final order passed in the proceedings companynected with that applica- tion. In our opinion, there is numbersubstance in this companyten- tion. The important words in clause 3 of article 182 are 1 where there has been a review and 2 the decision passed on the review . These words show that before a case can be brought under article 182,clause 8, it must be shown firstly that the companyrt had undertaken to review the relevant decree or order and sec- ondly, that there has been a decision.on.the review.In the present case, even if it be assumed that the word review has been used in article 182 in a large sense and that the application for reopening the decree under Section 36 of the Bengal Money lenders Act was an application for review, the appellant cannot succeed, because the companyrt never undertook or purported to review the decree in question. What actual- ly happened was that the application under Section a6 for reopening the preliminary decree number the final decree which is the decree sought to be executed was dismissed for default and the application under Order IX, rule 9, of.the Civil Procedure Code for the restoration of the proceedings under Section 86 of the Money lenders Act was also dis- missed.

Case appeal was rejected by the Supreme Court

APPEAL from the High Court of Judicature at Bombay. Civil Appeal No. XXVI of 1949. This was an appeal from a judgment and decree of the Bombay High Court Stone C.J. and Coyajee J. dated 20th March, 1947, in Appeal No. 42 of 1946, reversing a judgment of Chagla J. dismissing an application. made by the respond- ent under the Indian Arbitration Act, 1940, praying inter alia that the arbitration agreement companytained in certain companytract numberes sent by the appellants to the respondent be declared invalid and void and for setting aside an award made by arbitrators appointed under the said companytract numbere. C. Setalvad, Rameshwar Nath with him , for the appel- lants. K. Daphtary, B. Sen and K.T. Desai with him , for the respondent. 1950. March 14. The judgment of the Court was delivered by DAS J.--This appeal arises out of an application made by the Respondent under the Indian Arbitration Act, 1940, praying inter alia that the arbitration agreement companytained in certain companytract numberes including companytract numbere No. 17996 sent by the Appellants to the Respondent be declared to be invalid, void and unenforceable and be set aside and that a purported award made by the arbitrators appointed in terms of the said companytract numberes be set aside. That application came to be made in the following circumstances The Appellants were and are members of the East India Cotton Association Ltd. The Respondent, however, was number and is number a member of that Association. In April, 1945, the Respondent employed the Appellants as his agents to effect forward companytracts for the sale and or purchase of companyton according to the rules, regulations and bye-laws of that Association. Between the 9th April, 1945, and the 10th August, 1945, the Appellants as such agents put through various companytracts for sale and or purchase of companyton for July, 1945, and September, 1945, deliveries and sent to the Respondent companytract numberes in respect of each of such companytracts. All the said companytract numberes were in printed forms, a specimen companyy whereof is set out at pages 12 to 15 of the Paper Book. On the 10th August, 1945, the purchase of 900 bales of companyton at Rs. 432 per candy for September 1945 delivery remained outstanding. According to the Respondent, on the 11th August, 1945, the Respondent instructed the Appellants to close the said outstanding purchase by selling 900 bales for September 1945 delivery at a rate number less than Rs. 426 per candy, which is said to be the prevailing market rate on that date. As the Respondent did number receive any companytract numbere from the Appellants in respect of the closing transac- tion of 900 bales, the Respondent on the 18th August, 1945, put on record his aforesaid instructions and asked the Appellants to send the companytract numbere. The Appellants, however, deny that any instruction was given by the Respond- ent on the 11th August, 1945, for closing the outstanding companytract. They deny the receipt of the Respondents letter of that date. According to the Appellants the 21st August, 1945, was a clearing date and on that clearing a sum of Rs. 18,900 became due and payable by the Respondent to the Appellants and that instead of paying up his dues the Re- spondent companycocted the false story of having given instruc- tions to the Appellants to close the outstanding purchase. The Appellants by their letter of the 22nd August, 1945, repudiated the allegations in the Respondents last men- tioned letter and called upon the Respondent to pay up Rs. 18,900 and gave numberice to him that if he failed to pay up the amount by numbern of the 23rd August, 1945, the Appellants would be companypelled to square up the outstanding companytract at their discretion on account and at the risk of the Respond- ent. The Respondent on the 24th August, 1945, denied having fabricated any false story and repudiated liability for Rs. 18,900 and returned the Appellants bill. On the 27th August, 1945, the Appellants closed the outstanding companytract for purchase of 900 bales by selling the same at Rs. 356 per candy for September 1945 delivery and along with their letter dated the 27th August, 1945, sent companytract numbere No. 17996. The Respondent by his letter dated the 28th August, 1945, reit- erated the story of previous instruction for closing the companytract, denied having given any instruction to the Appel- lants to close the companytract on the 27th August, 1945, and returned the companytract numbere No. 17996. On the 28th August, 1945, the Appellants wrote to the Respondent claiming Rs. 34,313 and expressing the desire to refer the disputes to arbitration in terms of the arbitration agreement companytained in the companytract numberes. Both parties appointed their respec- tive arbitrators. The arbitrators entered upon the refer- ence and eventually fixed the 24th October, 1945, for a meeting of the arbitrators. The Respondent alleges that he received the numberice of meeting only on 22nd October, 1945, and companyld number attend the meeting on the 24th October, 1945, as he had to appear before the Income Tax Officer on the same day. Accordingly, the Respondent sent his agent to attend the arbitration meeting and to obtain an adjournment. The arbitrators, however, rejected the application for adjournment and made an ex parte award on the same day for Rs. 34,313 and interest and companyts. Being aggrieved by the award the Respondent on the 10th November, 1945, filed an appeal to the Board of the Association. The Respondents allegation is that pending the said appeal he discovered that the companytract numberes rendered by the Appellants from time to time including the companytract numbere No. 17996 were number in accordance with the prescribed official form of companytract numberes of the Association and he was advised that in the premises the companytracts were void under the provisions of the Bombay Cotton Contracts Act IV of 1932 and that, that being so, there was numberarbitration agreement between the parties under which there companyld be any reference to arbitra- tion on which any award companyld be made. The Respondent thereupon amended his memorandum of appeal to the Board pointing out the invalidity of the companytracts and at the same time made a substantive application to the High Court under the Indian Arbitration Act for the reliefs already summa- rised above. In order to appreciate the rival companytentions of the parties it is necessary to refer to the relevant provisions of the Bombay Cotton Contracts Act, 1932, and the bye-laws of the said Association. Section 8 i of the Bombay Cotton Contracts Act, 1932, runs as follows - Save as hereinafter provided in this Act any companytract whether either party thereto is a member of a recognised companyton association or number which is entered into after the date on which this Act companyes into operation and which is number in accordance with the byelaws of any recognised companyton association shall be void. There is numberdispute that the East India Cotton Associa- tion is one of the recognised companyton associations for the purposes of the said Act. Bye-laws 80 and 82 of Chat Asso- ciation are in the terms following -- Delivery Contracts between members shall be made on the Official form given in the Appendix. Hedge Contracts between members may be verbal or in writing and when in writing shall be in one or other of the forms given in the Appendix. Whether verbal or written all companytracts shall be subject to the bye-laws, provided that in the case of Deliv- ery Contracts Byelaws 149 to 163 inclusive shall number apply. Contracts between members acting as companymission agents on the one hand and their companystituents on the other shall, be made subject to the bye-laws and a companytract numbere in the form given in the Appendix pages 92, 93, 94 and 95 shall be rendered in respect of every such companytract. Bye- laws 130 to 166 inclusive shall number apply to these Con- tracts. Bye-law 51-A originally required a deposit at a rate number less than Rs. 25 per bale and accordingly the companytract numbere submitted by. the agent to the companystituent used to companytain the following clause at the end of the clause relating to payment of margin - In addition to the above, the deposit number carrying interest payable under bye-law 51-Anamely, at a rate number less than Rs. 25 per bale shall, when demanded, be made by you to me us in Bombay. During the war bye-law 51-A was amended by reducing the minimum amount of deposit from Rs. 25 per bale to Rs. 12-8-0 per bale and accordingly the Government of Bombay by a Notification made on the 19th September, 1945, in exercise of the powers companyferred by the Bombay Options in Cotton Prohibition Act, 1939 Act XXV of 1939 provided that the companytract numbere should also be amended so that the clause last quoted above should read as follows -- In addition to the above, the deposit number carrying interest payable under bye-law 51-A, namely, at a rate number less than Rs. 12-1/2 per bale shall, when demanded, be made by you to me us in. Bombay. In order to enforce war-time companytrols another amendment of the bye-laws was made whereby a new bye-law was added as bye-law 65-A. In view of this last mentioned amendment and in order to bring the companytract numbere between the agent and the companystituent into line with this new bye-law the Government of Bombay by the same Notification dated the 19th September 1944 directed the inclusion of the two following clauses in the companytract numbere, namely If this companytract is a companytract for sale, then if be- tween us and other members of the East India Cotton Associa- tion we become, under the bye-laws, the first seller of the companyton so sold and if the last buyer exercises the right given by bye-law 65-A, you will then be bound by the provi- sions of that bye-law as between you and us. If this companytract is a companytract of purchase, and if between us and other members of the East India Cotton Asso- ciation Ltd., we become the last buyers unless we shall have received express instructions from you in writing to. the companytrary, before the companymencement of the delivery period if the companytract is entered into before the companymencement of the delivery period, or with the order if the companytract is en- tered into during the permitted days of trading in the delivery period, we shall be at liberty at our option and without any further reference to you to exercise the right given to the last buyer under bye law 65-A, and if we so exercise the right you will be bound by the provisions of that bye-law as between you and us. After all these amendments the companytract numbere to be rendered by an agent to the companystituent had to be in the form, a specimen companyy whereof is set out at pages 17 and 18 of the Paper Book. The companytracts between the Appellants and the Respondent were made after the aforesaid companytract numbere form came into vogue. The official Contract Note form to be used after the aforesaid amendments opens with the following clause -- I we have this day sold bought for you in Bombay sub- ject to the following companyditions and to the Bye-laws of the East India Cotton Association Ltd., in force from time to time and subject also to my our usual charges and terms of business as Commission Agents. Then are inserted particulars of the description, quantity, price etc., of the companyton which is the subjectmat- ter of the companytract. Then follows the clause for payment of margin, the last sentence of which provides for payment of deposit payable under bye law 51-A as amended, namely, at a rate number less than Rs. 121/2 per bale. At the end of the form are to be found the two new clauses required to be incorporated in every Contract Note by the Government Noti- fication already referred to. The Contract Notes actually rendered by the Appellants to the Respondent, however,. were in forms, a specimen companyy whereof is set out at pages 12--15 of the Paper Book. A companyparison of the two forms of the companytract numberes will reveal the following differences - In the companytract numbere rendered by the Appellants to the Respondent the last sentence providing for deposit at the end of the margin clause is missing. There is, however, a rubber stamp impression on the top of the back of the companytract to the following effect -- In addition to the above, the deposit number carrying interest payable under bye-law 51-A, namely, at a rate number less than Rs. 25 per bale shall, when demanded, be made by you to me us in Bombay. Evidently, this rubber stamp provision is a reproduction of the sentence that used to be found at the end of the margin clause before bye-law 51-A was amended and the clause itself was amended by the Government Notification of 1944. The two new clauses required to be inserted in the company- tract referred to above have also been omitted. The companytention of the respondent was that the companytract numberes actually issued were number in accordance with the bye- laws of the Association and were accordingly void under Section 8 of the Bombay Cotton Contracts Act, 1932, and that, that being so, the arbitration agreement incorporated in the companytract numbere was also void and there companyld be numberreference to arbitration and there companyld be numberaward as purported to have been made by the arbitrators on a refer- ence under the void companytracts. The matter was dealt with by Mr. Justice Chagla who overruled the companytentions of the Respondent and dismissed the application on 2nd July 1946. The learned Judge point- ed out that whereas bye-law 80 required that delivery company- tracts must be made on the official form and that the hedge companytracts, when made in writing, must be made in the form given in the Appendix, clause 82 did number require that the companytracts between members acting as companymission agents on the one hand and their companystituents on the other must be in writing or in particular form. According to the learned Judge bye-law 82 required two things, namely - that the companytracts referred to therein should be made subject to the bye-laws, and that a companytract numbere in the prescribed form should be rendered in respect of every such companytract. The learned Judge was of the opinion that section 8 of the Bombay Cotton Contracts Act, 1932, only avoided the companytracts i.n case of companytravention of the first require- ment, namely, if the companytracts were number made subject to the bye-laws, but had numberconcern with the companytravention of the second requirement, namely, if the companytract numberes were number in the prescribed form. The learned Judge appears to have made a distinction between a companytract and a companytract numbere which was a mere evidence of the companytract. According to him, even if the companytract numbere was number in the prescribed form, that fact did number affect the pre-existing companytract which had only to be made subject to the bye-laws but need number have been made in writing at all. Accordingly, the learned Judge dismissed the application. Being aggrieved by that decision, the Respondent went up on appeal which was heard by Stone C.J. and Coyajee J. who accepted the appeal, set aside the dismissal of the Respond- ents petition and gave the declaration prayed for and set aside the award. The Appellants have number companye up on appeal before us after having obtained the necessary certificate from the Bombay High Court. We find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a companytract between the parties is reduced to writing, the writing becomes the repository of the companytract and that writing only can be looked at to ascertain what the companytract between the parties is, and if that writing is number in accordance with the bye- laws, the companytract itself must be void. We do number, however, feel pressed to emphasize this aspect of the matter, for, assuming that there was a pre-existing oral companytract between the parties dehors the written companytract numbere, as held by Chagla J. we have yet to see whether the so-called pre- existing oral companytract was in accordance with the bye-laws, for if it were number, then it would be hit by section 8 of the Bombay Cotton Contracts Act, 1932. There is numbersuggestion that the terms of the so called pre-existing oral companytract were in any way different from the terms subsequently re- companyded in the companytract numberes actually issued. In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye- laws, should have been as follows - In addition to the above, the deposit number carrying interest payable under bye-law 51-A, namely, at a rate number less than Rs. 121/2 per bale shall, when demanded, be made by you to me us in Bombay. Instead of that sentence, we have the rubber stamp impression reading as follows - In addition to the above, the deposit number carrying interest payable under bye-law 51-A, namely, at a rate number less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay. The respondent companytends that this term is number in accord- ance with the bye-laws of the Association. The Appellants on the other hand companytend that there is numberdiscrepancy, because a provision for a rate number less than Rs. 25 per bale does number companytravene or is number inconsistent with the provi- sion for a rate number less than Rs. 121/2 per bale. In other words, any rate above the rate of Rs. 121/2 may be stipulat- ed in accordance with the terms of business to which the companytract was subject, for it did number companytravene the require- ment that the rate should number be less than Rs. 121/2. It is true that the opening clause of the companytract numbere makes the companytract subject to the Appellants usual charges and terms of business, but the companytract is at the same time subject to the bye-laws of the Association. In order to reconcile the two, such terms of business as are number inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the companystitu- ent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent number in accord- ance with bye-law 51-A. Apart from this companysideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indi- cates that it purports to summarise and set out what is payable under bye-law 51-A. In fact, as already stated,above, bye-law 51-A had been amended and what is payable under the amended bye-law is number at a rate number less than Rs. 25 but at a rate number less than Rs. 121/2. There- fore, the rubber stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and companysequently is number in accordance with that bye-law. The companytention of the Respondent has been and is that by reason of the omission of the two clauses at the end of the companytract numbere actually issued by the Appellants it was number in accordance with the bye-laws. The learned Attorney-Gener- al appearing for the Appellants companytends that the companytract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the companytract. This companytention, we are satisfied, is unsound. Bye-law 65-A in terms regulates the relationship between members and incorporation thereof in a companytract between a member agent and an outsider companystituent will make numbersense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding companytract being one for purchase of 900 bales, the Appel- lants, if they became the last buyers, companyld, under that bye-law, exercise any of those options at their own dis- cretion. In the second of the two clauses which have been omitted from the companytract numbere this option has been made subject to express instructions of the companystituent to the companytrary, for it provides that the Appellants as agents would be free to exercise their option-- unless I We shall have received express instructions from you in writing to the companytrary, before the companymence- ment of the delivery period if the companytract is entered into before the companymencement of the delivery period or with the order if the companytract is entered into during the permitted days of trading in the delivery period.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. XVI of 1950. Appli- cation under article 32 of the Constitution for a writ of prohibition and certiorari. The facts are set out in the judgment. R.Pattabhi Raman, for the petitioner. Rajah Ayyar, Advocate-General of MadraS, Ganapathi Ayyar, with him for the opposite party. 1950. May 26. The Judgment of Kania C.J., Mehr Chand Mahajan, Mukherjea and Das JJ. was delivered by Patanjali Sastri J. Fazl Ali J. delivered a separate judgment. PATANJALI SASTRI J.--The petitioner is the printer, publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exer- cise of their powers under section 9 1-A of the Madras Maintenance of Public Order Act, 1949 hereinafter referred to as the impugned Act purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort St. George Gazette and the numberification ran as follows -- In exercise of the powers companyferred by section 9 I-A of the Madras Maintenance of Public Order, Act, 1949 Madras Act XXIII of 1949 His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay. The petitioner claims that the said order companytravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan v. The State of Delhi, p. 605 infra. speech and expression companyferred on him by article 19 1 a of the Constitution and he challenges the validity of section 9 1-A of the impugned Act as being void under article 13 1 of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on be half of the respondents raised a preliminary objection, number indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resort- ing to this Court directly for such relief in the first instance. He companytended that, as a matter of orderly proce- dure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has companycurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Crimi- nal Procedure Code, applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, companycurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor Bisheswar Prasad Sinha 1 where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart v. Brown 2 and Hooney v. Kolohan 3 as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the appli- cant in Federal and State Courts should be exhausted before the remedy in the Supreme Court---be it habeas companypus or certiorari-- would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate General number the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does number merely companyfer power on this Court, as article 226 does on the I.L.R. 56 All. 158. 2 205 U. S. 179. 3 294 S. 103. High Courts, to issue certain writs for the enforcement of the rights companyferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a guaranteed remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This Court is thus companystituted the protector and guarantor of fundamental rights, and it cannot, companysistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do number companysider that the American decisions are in point. Turning number to the merits, there can be numberdoubt that freedom of speech and expression includes freedom of propa- gation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value Ex parte Jackson 1 . See also LoveIl v. City of Griffin s . It is therefore perfectly clear that the order of the Gov- ernment of Madras would be a violation of the petitioners fundamental right under article 19 1 a , unless section 9 1-A of the impugned Act under which it was made is saved by the reservations mentioned in clause 2 of article 19 which omitting immaterial words regarding laws relating to libel, slander, etc., with which we are number companycerned in this case saves the operation of any existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State. The question accord- ingly arises whether, the impugned Act, in so far as it purports by section 9 1-A to authorise the Provincial Government for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into 1 96 U.S. 727. 2 303 S, 444. or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents is a law relating to any matter which undermines the security of or tends to overthrow the State. The impugned Act was passed by the Provincial Legisla- ture in exercise of the power companyferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which company- prises among other matters, public order. Now public order is an expression of wide companynotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula- tions enforced by the government which they have estab- lished. Although section 9 I-A refers to securing the public safety and the maintenance of public order as distinct purposes, it must be taken that public safety is used as a part of the wider companycept of public order, for, if public safety were intended to signify any matter distinct from and outside the companytent of the expression public order, it would number have been companypetent for the Madras Legislature to enact the provision so far as it relates to public safety. This indeed was number disputed on behalf of the respondents. But it was urged that the expression public safety in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore, the security of the State with the meaning of article 19 2 as the State has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. Much reli- ance was placed in support of this view on Rex v. Wormwood Scrubbs Prison 1 where it was held that the phrase for securing the public safety and the defence of. the realm in section 1 of the Defence of the Realm Consolidation Act, 1914, was number limited to securing the companyntry against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is number of much assistance to the respondents as the companytext in L.R. 1920 2 K.B. 805. which the words public safety occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has number been drawn to any definition of the expression public safety, number does it appear that the words have acquired any technical signification as words of art. Public safety ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the companytext. In the classification of offenCes in the Indian Penal Code, for instance, Chapter XIV enumerates the offences affecting the public health, safety, companyvenience, decency, and morals and it includes rash driving or riding on a public way section 279 and rash navigation of a vessel section 280 , among others, as offences against public safety, while Chapter VI lists waging war against the Queen section 121 , sedition section 124-A etc. as offences against the State, because they are calculated to undermine or affect the security of the State, and Chapter VIII defines of- fences against the public tranquillity which include unlaw- ful assembly section 141 rioting section 146 , promot- ing enmity between classes section 153-A , affray sec- tion 159 etc. Although in the companytext of a statute relat- ing to law and order securing public safety may number in- clude the securing of public health, it may well mean secur- ing the public against rash driving on a public way and the like, and number necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving, or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the ab- sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guar- antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do number. The Government of India Act, 1935, numberhere used the expression security of the State though it made provision under section 57 for dealing with crimes of violence intend- ed to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of companybating the operations of persons who endangered the peace or tranquillity of the Province by companymitting or attempting to companymit crimes of violence intended to overthrow the Govern- ment. Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the security of India or any part of the territory thereof is threatened by war or by external ag- gression or by internal disturbance. These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi- ty of the State. As Stephen in his Criminal Law of England 1 observes Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are number capable of being marked off by perfectly defined boundaries. All of them have in companymon one feature, namely, that the numbermal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Though all these offences thus involve disturbances of public tranquil- lity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflict- ed in respect of them they may be classified into different minor categories as has been done by Vol. II, p. 242. the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 1 , has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridge- ment of freedom of speech and expression, that is to say, numberhing less than endangering the foundations of the State or threatening its overthrow companyld justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly sub-clause b and the right of association sub-clause c may be restricted under clauses 3 and 4 of article 19 in the interests of public order, which in those clauses includes the security of the State. The differentiation is also numbericeable in Entry 3 of List III Concurrent List of the Seventh Sched- ule, which refers to the security of a State and mainte- nance of public order as distinct subjects of.legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differ- ences in kind. It is also worthy of numbere that the word sedition which occurred in article 13 2 of the Draft Constitution pre- pared by the Drafting Committee was deleted before the article was finally. passed as article 19 2 . In this companynection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. The King Emperor 1 , held that the acts or words companyplained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency, but the Privy Council overruled that 1942 F.C.R. 38. decision and emphatically reaffirmed the view expressed in Tilaks case 1 to the effect that the offence companysisted in exciting or attempting to excite in others certain bad feelings towards the Government and number in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small -King Emperor v. Sada- shiv Narayan Bhalerao 2 Deletion of the word sedition from the draft article 13 2 , therefore, shows that criticism of Government exciting disaffection or bad feel- ings towards it is number to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the companyre- sponding Irish formula of undermining the public order or the authority of the State article 40 6 i of the Constitution of Eire, 1937 did number apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda- tion of all democratic organisations, for without free political discussion numberpublic education, so essential for the proper functioning of the processes of popular govern- ment, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that it is better to leave a few of its numberious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. Quoted in Near v. Minnesotta 3 . We are therefore of opinion that unless a law restrict- ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause 2 of article 19, although the 1 22 Bom. 112. 21 L.R. 74, I A. 89. 8 282U.S, 607, 717-8. restrictions which it seeks to impose may have been company- ceived generally in the interests of public order. It fol- lows that section 9 1-A which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause 2 , and is there- fore void and unconstitutional. It was, however, argued that section 9 1-A companyld number be companysidered wholly void, as, under article 13 1 , an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and numbermore. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was companyered by clause 2 of article 19 and must, it was said, be held to be valid. We are unable to accede to this companytention. Where a law purports to authorise the imposi- tion of restrictions on a fundamental right in language wide enough to companyer restrictions both within and without the limits of companystitutionally permissible legislative action affecting such right, it is number possible to uphold it even so far as it may be applied within the companystitutional lim- its, as it is number severable. So long as the possibility of its being applied for purposes number sanctioned by the Consti- tution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause 2 of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where numbersuch danger companyld arise, cannot be held to be companystitutional and valid to any extent. The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioners journal in the State of Madras is hereby quashed. FAZL ALI J.--For the reasons given by me in Brij Bhushan and Another v. The State 1 , which practically 605. involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted. In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case. It appears to me that in the ultimate analysis the real question to be decided in this case is whether disorders involving menace to the peace and tranquillity of the Prov- ince and affecting public safety will be a matter which undermines the security of the State or number. I have bor- rowed the words quoted within inverted companymas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of any document or class of documents for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 2 of the Constitution. From the trend of the arguments addressed to us, it would appear that if a docu- ment is seditious, its entry companyld be validly prohibited, because sedition is a matter which undermines the security of the State but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are number matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan and Another v. The State 1 , I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an of- fence against public tranquillity. If so, how companyld sedi- tion be a matter which would undermine the security of the State and public disorders and disturbance of public safety will number be such a matter? It was argued that a small riot or an affray will number 1 1950 S.C R, 605. undermine the security of the State, but to this line of argument there is a two-fold answer -- The Act, as its preamble shows, is number intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, 2 There are de- grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may number also, from the laymans point of view, be a matter which undermines the security of the State, but that would number affect the law which aims at checking sedition.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petition No. XXIX of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are stated in the judgment. C. Chatterjee B. Banerji, with him for the petition- er. C. Setalvad, Attorney-General for India, S. M. Sikri, with him for the respondent. 1950. May 26. The judgment of Kania C.J., Patanjali Sastri, Mehr Chand Mahajan, Mukherjea and Das JJ. was deliv- ered by Patanjali Sastri J. Fazl Ali J. delivered a separate dissenting judgment, PATANJALI SASTRI J.--This is an application under arti- cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers companyferred on him by section 7 1 c of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been pub- lishing highly objectionable matter companystituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or companybating activities prejudicial to the public safety or the maintenance of public order. Now there more in exercise of the powers companyferred by section 7 1 c of the East Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij Bhushan, Printer and Publisher and Shri K.R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all companymunal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintend- ent of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m. and 5 p.m. on work- ing days. The only point argued before us relates to the companysti- tutional validity of section 7 1 c of the impugned Act which, as appears from its preamble, was passed to provide special measures to ensure public safety and maintenance of public order. Section 7 1 c under which the aforesaid order purports to have been made reads so far as material here as follows -- The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces- sary for the purpose of preventing or companybating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a print- er, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny. The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression companyferred upon them by article 19 1 a of the Constitu- tion inasmuch as it authorises the imposition of a restric- tion on the publication of the journal which is number justi- fied under clause 2 of that article. There can be little doubt that the imposition of precen- sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 1 a . As pointed out by Blackstone in his Commentaries the liberty of the press companysists in laying numberprevious restraint upon publications, and number in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public to forbid this, is to destroy the freedom of the press 1 . The only question therefore is whether section 7 1 c which authorises the imposition-of such a restriction falls within the reservation of clause 2 of article 19. As this question turns on companysiderations which are essentially the same as those on which our decision in Petition No. XVI of 1950 2 was based, our judgment in that case companycludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the Chief Commission- er, Delhi, dated the 2nd March, 1950. Blackstones Commentaries, Vol. IV, pp. 151, 152. Romesh Thappar v. The State of Madras, supra p. 594. FAZL ALI J.--The question raised in this case relates to the validity of section 7 1 c of the East Punjab Public Safety Act, 1949 as extended to the Province of Delhi , which runs as follows - The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces- sary for the purpose of preventing or companybating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to a print- er, publisher or editor-- c require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny It should be numbered that the provisions of sub-clause c arc number in general terms but are companyfined to a particular subject or class of subjects, and that having regard to the companytext in which these words are used, they must be companynect- ed with public safety or the maintenance of public order. The petitioners, on whose behalf this provision is assailed, are respectively the printer and publisher and editor of an English weekly of Delhi called Organizer, and they pray for the issue of writs of certiorari and prohibi- tion to the Chief Commissioner, Delhi, with a view to examine and review the legality of and restrain the operation of and quash the order made by him on the 2nd March, 1950, under the impugned section, directing them to submit for scrutiny, in duplicate, before publication, till further orders, all companymunal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies The order in question recites among other things that the Chief Commissioner is satisfied that the Organizer has been publishing highly objectionable matter companystituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or companybating activities prejudicial to the public safety or the maintenance of public order. It is companytended on behalf of the petitioners that numberwithstanding these recitals the order companyplained against is liable to be quashed, because it amounts to an infringement of the right of freedom of speech and expres- sion guaranteed by article 19 1 a of the Constitution. Articles 19 1 a and 2 , which are to be read together, run as follows - 19, 1 All citizens shall have the right a to freedom of speech and expression Nothing in sub-clause a of clause 1 shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, companytempt of Court or any matter which offends against decency or morality or which under- mines the security of, or tends to overthrow, the State. It is companytended that section 7 1 c of the Act, under which the impugned order has been made, cannot be saved by clause 2 of article 19 of the Constitution, because it does number relate to any matter which undermines the security of, or tends to overthrow, the State. Thus the main ground of attack is that the impugned law is an infringement of a fundamental right and is number saved by the so-called saving clause to which reference has been made. There can be numberdoubt that to impose pre-censorship on a journal, such as has been ordered by the Chief Commissioner in this case, is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by article 19 1 a of the Constitu- tion, and the only question which we have therefore to decide is whether clause 2 of article 19 stands in the way of the petitioners. The East Punjab Public Safety Act, 1949, of which sec- tion 7 is a part, was passed by the Provincial Legislature in exercise of the power companyferred upon it by section 100 of the Government of India Act, 1935, is read with Entry 1 of List II of the Seventh Schedule to that Act, which includes among other matters public order. This expression in the general sense may be companystrued to have reference to the maintenance of what is generally known as law and order in the Province, and this is companyfirmed by the words which follow it in Entry 1 of List II and which have been put within brackets, viz., but number including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. It is clear that anything which affects public tranquillity within the State or the Province will also affect public order and the State Legislature is therefore companypetent to frame laws on matters relating to public tranquillity and public order. It was number disputed that under the Government of India Act, 1935 under, which the impugned Act was passed it was the responsibility of each Province to deal with all internal disorders whatever their magnitude may be and to preserve public tranquillity and order within the Province. At this stage, it will be companyvenient to companysider the meaning of another expression public safety which is used throughout the impugned Act and which is also chosen by its framers for its title. This expression, though it has been variously used in different companytexts see the Indian Penal Code, Ch. XIV , has number acquired a well-recognized meaning in relation to an Act like the impugned Act, as a result of a long companyrse of legislative practice, and may be taken to denote safety or security of the State. In this sense, it was used in the Defence of the Realm Consolidation Act, 1914, as well as the Defence of India Act. and this is how it was judicially interpreted in Rex v. Governor of Wormwood Scrubbs Prison 1 . The headnote of this case runs as follows By section 1 of the Defence of the Realm Consolidation Act, 1914, power was given to His Majesty in Council during the companytinuance of the present war to issue regula- tions for securing the public safety and the de- fence of the realm -- 1 1920 2 K.B. 305. Held, that the regulations thereby authorized were number limited to regulations for the protection of the companyntry against foreign enemies, but included regulations designed for the prevention of internal disorder and rebellion Thus public order and public safety are allied matters, but, in order to appreciate how they stand in relation to each other, it seems best to direct our atten- tion to the opposite companycepts which we may, for companyvenience of reference, respectively label as public disorder and public unsafety. If public safety is, as we have seen, equivalent to security of the State, what I have designat- ed as public unsafety may be regarded as equivalent to insecurity of the State. When we approach the matter in this way, we find that while public disorder iS wide enough to companyer a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, public unsafety or insecurity of the State , will usually be companynected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State. In order to understand the scope of the Act, it will be necessary to numbere that in the Act maintenance of public order always occurs in juxtaposition with public safety, and the Act itself is called The East Punjab Public Safety Act. The prominence thus given to public safety strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the State, or cases in which, owing to some kind of emergency or a grave situation having arisen, even public disorders of companyparatively small dimensions may have far- reaching effects on the security of the State. It is to be numbered that the Act purports to provide special measures to ensure public safety and maintenance of public order. The words special measures are rather important, because they show that the Act was number intended for ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal Code and other existing laws, and with these the Act which purports to be of a temporary Act is number apparently companycerned. It is companycerned with special measures which would presumably be required for special cases or special situations. Once this important fact is grasped and the Act is viewed in the proper perspective, much of the companyfusion which has been created in the companyrse of the arguments will disappear. The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression public order, used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insig- nificant breaches or those of a grave or serious nature. This is, in my opinion, approaching the case from a wrong angle. The Act is a piece of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures. It was argued that public safety and maintenance of public order are used in the Act disjunctively and they are separated by the word or and number and, and therefore we cannot rule out the possibility of the Act providing for ordinary as well as serious cases of disturbance of public order and tranquillity. This, as I have already indicated, is a somewhat narrow and technical approach to the question. In companystruing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so companystrued as to bear a reasonable meaning companysistent with its validity. We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should number be companyfused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order, In my opinion, the word or is used here number so much to separate two wholly different companycepts as to show that they are closely allied companycepts and can be used almost inter- changeably in the companytext. I think that public order may well be paraphrased in the companytext as public tranquillity and the words public safety and public order may be read as equivalent to security of the State and public tran- quillity. I will number advert once more to clause 2 of article 19 and state what I companysider to be the reason for inserting in it the words matter which undermines the security of, or tends to overthrow, the State. It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does number infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings see Halsburys Laws of England, 2nd Edition, Vol. II, page 391 . This is prac- tically what has been said in clause 2 of article 19, with this difference only that instead of using the words law relating to sedition, the framers of the Constitution have used the words mentioned above. It is interesting to numbere that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is number difficult to discover the reason for this change and I shall briefly state in my own words what I companysider it to be. The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in Niharendu Dutt Majumdar v. The King 1 which has been quoted again and again and in which Gwyer C.J. laid down that public disor- der, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and the acts or words companyplained of must either incite to disorder or 1 1942 F.C.R. 38. must be such as to satisfy reasonable men that is their intention or tendency. For this view, the learned Chief Justice relied on certain observations of Fitzgerald J. in R.v. Sullivan 1 , and he also added that he was companytent to adopt the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law. There is numberdoubt that what Gwyer C.J. has stated in that case represents the view of a number of Judges and authors and was also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury in a case relating to the law of sedition JR. v. Burns 2 said -- The law upon the question of what is seditious and what is number is to be found stated very clearly in a book by Stephen J. who has undoubtedly a greater knowledge of crimi- nal law than any other Judge who sits upon the Bench, and what he has said upon the subject of sedition was submitted to the other Judges, who sometime back were engaged with him in drafting a criminal companye, and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present. The decision of Gwyer C.J. held the field for several years until the Privy Council, dealing with a case under the Defence of India Rules, expressed the view in King Emper- or v. Sadhashiv Narayan Bhalerao 3 that the test laid down by the learned Chief Justice was number applicable in India where the offence under section 124A of the Indian Penal Code should be companystrued with reference to the words used in that section. They also added -- The word sedition does number occur either in section 124A or in the Rule it is only found as a marginal numbere to section 124A, and is number an operative part of the section, but merely provides the name by which the crime defined in the section will be known. 1 1868 11 Cox c.c. 44. 2 1886 16 company 855. 8 74 A. There can be numberjustification for restricting the companytents of the section by the marginal numbere. In England there is numberstatutory definition of sedition its meaning and companytent have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are number relevant when you have a statutory definition of that which is termed sedition as we have in the present case. Their Lordships are unable to find anything in the language of either section 124A or the Rule which companyld suggest that the acts or words companyplained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency. The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word sedition should be used in article 19 2 and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquil- lity and was companynected in some way or other with public disorder and, on the other hand, there was the pronounce- ment of the Judicial Committee that sedition as defined in the Indian Penal Code did number necessarily imply any inten- tion or tendency to incite disorder. In these circumstances, it is number surprising that they decided number to use the word sedition in clause 2 but used the more general words which companyer sedition and everything else which makes sedi- tion such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are number matters which undermine the security of the State. It will number be out of place to quote here the following passage from Stephens Criminal Law of England Vol. II, pp. 242 and 243 -- It often happens, however, that the public peace is disturbed by offences which without tending to the subver- sion of the existing political companystitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind. No definite line can be drawn between insur- rections of this sort, ordinary riots, and unlawful assem- blies. The difference between a meeting stormy enough to cause well-founded fear of a breach of the peace, and a civil war the result of which may determine the companyrse of a nations history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are number capable of being marked off by perfectly definite boundaries, All of them have in companymon one feature, namely, that the numbermal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Another class of offences against public tranquillity are those in which numberactual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious companyspiracies, libels or words spoken. Under these two heads all offences against the internal public tranquillity of the State may be arranged. This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity a those accompanied by violence including disorders which affect tranquillity of a companysiderable number of persons or an extensive local area, and b those number accompanied by violence but tending to cause it, such as seditious utter- ances, seditious companyspiracies, etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authorita- tive opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State. In principle, then, it would number have been logical to refer to sedition in clause 2 of article 19 and omit matters which are numberless grave and which have equal potentiality for undermining the security of the State. It appears that the framers of the Constitution preferred to adopt the logical companyrse and have used the more general and basic words which are apt to companyer sedition as well as other matters which are as detrimental to the security of the State as sedition. If the Act is to be viewed as I have suggested, it is difficult to hold that section 7 1 c falls outside the ambit of article 19 2 . That clause clearly states that numberhing in clause 1 a shall affect the operation of any existing law relating to any matter which undermines the security of, or tends to overthrow, the State. I have tried to show that public disorders and disturbance of public tranquillity do undermine the security of the State and if the Act is a law aimed at preventing such disorders, it fulfils the requirement of the Constitution. It is needless to add that the word State has been defined in article 12 of the Constitution to include the Government and Parlia- ment of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the companytrol of the Government of India. I find that section 20 of the impugned Act provides that the Provincial Government may by numberification declare that the whole or any part of the Province as may be specified in the numberification is a dangerously disturbed area. This provision has some bearing on the aim and object of the Act, and we cannot overlook it when companysidering its scope. It may be incidentally mentioned that we have been informed that, under this section, Delhi Province has been numberified to be a dangerously disturbed area. It must be recognized that freedom of speech and expres- sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard- ed by the Courts. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of modern jurists is to deprecate censorship though they all agree that liberty of the press is number to be companyfused with its licentiousness. But the Constitution itself has pre- scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case companyes within those limits. In my opinion, the law which is impugned is fully saved by article 19 2 and if it cannot be successfully assailed it is number possible to grant the remedy which the petitioners are seeking here.

Case appeal was accepted by the Supreme Court

APPEAL from the High Court of Judicature at Bombay Civil Appeal No. XII of 1950. This was an appeal from a judgment and order of the High Court of Bombay Chagla, Acting C.J. and Bhagwati J. dated 2nd September, 1947, in Appeal No. 60 of 1946. The facts are fully set out in the judgment. K. Daphtary, Advocate-General of Bombay M. M. Desai. with him for the appellant. C. Setalvad, Attorney-General for India S.S. Ragne- kar, with him for the respondent. 1950. May 27. The judgment of the Court was delivered by KANIA C.J.--This is an appeal from a judgment of the High Court at Bombay and it relates to the jurisdiction of the Court to direct the Chief Controlling Revenue Authority and the Superintendent of Stamps at Bombay to state a case for the opinion of the Court under section 57 of the Stamp Act. The respondent companypany, for its business, borrowed money from the Central Bank of India Ltd. at Bombay. In order to secure the loan a document was executed on the 22nd of March, 1945, with a stamp of Rs. 16-8-0, on the footing that it was a, deed of hypothecation without possession of the goods. When the deed was sent to the Sub-Registrar for registration he impounded the same and sent it to the Stamp Office. The Assistant Superintendent of Stamps wrote to the respondent that the document was a mortgage with possession, chargeable with duty under article 40 a of the Schedule and inquired why it was number duly stamped before execution. The respondents solicitors in their reply companytended that the document was number, and was never intended by the parties to be, a mortgage with possession. They pointed out that numberpossession of the property had been given or was intended to be given, except in certain companytin- gencies and therefore the document was properly stamped. In reply the Assistant Superintendent intimated that the docu- ment was chargeable with duty of Rs. 56,250 and a penalty of Rs. 5,000 had been imposed. The respondents were asked to pay the amount forthwith. On the 27th July, 1945, the respondent filed a suit against the Central Bank companytending that the document was number a mortgage with possession. It was alleged that since a doubt had arisen as to whether the document gave effect to the companymon intention of the parties the Courts directions were sought for and if the Court found that the document as framed did number give effect to the said companymon intention of the parties the instrument may be rectified. On 9th August, 1945, the respondents solicitors informed the Assistant Superintendent that such a suit had been filed and requested that the demand for payment of stamp duty and penalty may number be pressed under the circumstances. In the further companyrespondence, on behalf of the appellant, the demand was reiterated and resort to the companyrcive procedure of section 48 of the Stamp Act was threatened. The Collector thereafter sent a letter to the respondents on the 17th January, 1946, demanding payment. On the 25th of January, 1946, the suit filed by the respond- ent was disposed of by the Court and the rectification as prayed was ordered. The respondents solicitors immediately intimated the result of the suit to the Assistant Superin- tendent and sent a companyy of the deed showing the rectifica- tions made in the original document. A similar letter was also sent to the Collector of Bombay. On the 1st February, 1946, the respondents solictors enquired of the Assistant Superintendent of Stamps whether he was agree- able to make a reference under section 56 2 to the appel- lant, as the question of liability to pay the stamp duty and. penalty involved important questions of law. A petition on behalf of the respondent to the appellant was also filed on the 5th of February in which it was prayed that either the order of the Assistant Superintendent of Stamps be rescinded or in the alternative a case may be referred under section 57 of the Stamp Act for the opinion of the High Court. This petition was rejected on the 4th July, 1946. The respondent there- upon filed a petition in the High Court on the 19th of July, 1946, praying that a writ of certiorari may be issued against the appellant, or an order may be made against him under section 45 of the Specific Relief Act, to cancel the levy of the stamp duty and penalty as claimed on behalf of the appellant or in the alter- native the appellant may be ordered under section 57 of the Stamp Act to refer the matter to the High Court for its opinion. The matter came for hearing before Mr. Justice Blagden who did number grant the first relief but directed the appellant to state a case under section 57 of the Stamp Act to the Court for its opinion. The appellant filed an appeal but failed. He has number companye in appeal to this Court. Two points have been urged on behalf of the appelant. The first is whether under section 57 of the Stamp Act there is an obligation on the appellant to state a case, and if number whether the High Court had jurisdiction to give a direction to that effect. The second point is whether having regard to the terms of section 226 1 of the Government of India Act, 1935, the High Court had jurisdiction to order the appellant to state the case, it being a matter relating to the revenue. Under this head it is also argued that the matter had proceeded beyond the stage of assessment and,had reached the stage of recovery. Therefore, the High Court of Bombay had numberjurisdiction to pass the order it did. The material part of section 57 of the Stamp Act runs as follows 57. 1 The Chief Controlling Revenue-authority may state any case referred to it under section 56, sub-section 2 , or otherwise companying to its numberice, and refer such case, with its own opinion thereon- b if it arises in the province of Bombay, to the High Court at Bombay Section 226 1 of the Government of India Act- 1935, runs as follows -- 226. 1 Until otherwise provided by Act of the appropriate legislature, numberHigh Court shall have any original jurisdiction in any matter companycerning the revenue, or companycerning any act ordered or done in the companylection thereof according to the usage and practice of the companyntry or the law for the time being in force. On behalf of the appellant it is companytended that the very words of section 57 of the Stamp Act show that it is a power given to the appellant to state a case and it is number an obligation. The section is framed and worded only to give the benefit thereof to the appellant and it is number for the benefit of any other party. The word may used in the section was deliberately used for that purpose. It was pointed out that under section 56 2 of the Stamp Act if the Collector felt doubt as to the amount of duty with which the instrument was chargeable he may draw up a statement of the case and refer it with his opinion for the decision of the Chief Controlling Revenue Authority. Similarly under section 60 if any Court felt doubt as to the amount of duty to be paid it was given power to draw up a statement of case for the opinion of the High Court. It was argued that both these sections gave only power to the Collector and the Court to make a refer- ence for their own benefit. Section 57, it was argued, was on the same lines for the benefit of the appellant. In numbere of these, any other party had any right to insist on a reference. It was pointed out that under the Stamp Act a Collector companyld certify that the document was properly stamped, although it was number sufficiently stamped on a true companystruction, and when such a certificate was given the Controlling Authority companyld do numberhing. He had number even the power to refer that case to the Court to levy a higher stamp duty. For these reasons, it was companytended that the scheme of the Stamp Act was materially different from the scheme of the Income Tax Act. In our opinion the appellants companytentions are unsound. The first companytention that section 57 of the Stamp Act gives only a discretion and does number cast a duty on the appellant to make a reference overlooks the fact that the appellant has number to make a reference only when he is in doubt about his decision or companyclusion. In his companyclusion the party liable to pay the assessed stamp duty is materially inter- ested. The appellants decision is number necessarily based only on the reading of the entries in the Schedule to the Stamp Act. As in the present case, the question under what item stamp duty is leviable may depend on the true companystruc- tion of a document. It may also involve the decision of the question, as in the present case, as to what is the effect of the Courts order directing a rectification of the in- strument. It does number appear, on principle, sound to hold that these difficult questions should be left under the Stamp Act to the final decision of the appellant, and if the party affected by the assessment has a grievance there is numberrelief at all in law for him. The companystruction of a docu- ment is number always an easy matter and on the ground that it is a substantial question of law, parties have been permit- ted to take the matter up to the highest Court. If so, it appears difficult to start with the assumption that because this is a Revenue Act the decision of the appellant should be companysidered final and companyclusive. The provisions of sec- tion 56 2 and section 60 giving power to the Collector and the Court to send a statement of case to the appellant and the High Court respectively, in our opinion, instead of helping the appellant, go against his companytention. In those two sections this power is given when the referring authori- ty has a doubt to solve for himself. The absence of the words feels doubt as to the amount of duty to be paid in respect of an instrument in section 57 supports the view that the reference companytemplated under that section if number for the benefit of the appellant only but enures also for the benefit of the party affected by the assess- ment. In our opinion, the power companytained in section 57 is in the nature of an obligation or is companypled with an obliga- tion and under the circumstances can be demanded to be used also by the parties affected by the assessment of the stamp duty. Our attention has been drawn in this companynection to the decision of the Judicial Committee of the Privy Council in Alcock, Ashdown Co. Ltd. v. Chief Revenue Authority, Bombay 1 . In that case a question arose about an asses- sees right to ask the Commissioner of Income Tax to state a case for the opinion of the Court under section 51 of the Indian Income Tax Act, 1918. The material part of that section was in these terms -- 51. 1 If, in the companyrse of any assessment under this Act or any proceeding in companynection therewith other than a proceeding under Chapter VII, a question has arisen with reference to the interpretation of any of the provisions of this Act or of any rule thereunder, the Chief Revenue Authority may, either on its own motion or on reference from any Revenue officer subordinate to it, draw up a statement of the case, and refer it, with its own opinion thereon, to the High Court, and shall so refer any such question on the application of the assessee, unless it is satisfied that the application is frivolous or that a reference is unnecessary. The High Court upon the hearing of any such case shall decide the questions raised thereby, and shall deliver its judgment thereon companytaining the grounds on which such deci- sion is rounded, and shall send to the Revenue authority by which the case was stated a companyy of such judgment under the seal of the Court and the signature of the Registrar, and the Revenue-authority shall dispose of the case accordingly, or, if the case arose on reference from any Revenue-officer subordinate to it, shall forward a companyy of such judgment to such officer who shall dispose of the case companyformably to such judgment. In that case, after the assessment was made and 1 50 I.A., 227. the proceedings went to the Commissioner of Income Tax, the assessee requested that a case may be stated for the opinion of the Court under the aforesaid section, but the Commis- sioner refused to do so. Thereupon, a Rule was obtained from the High Court calling upon the Chief Revenue Authori- ty, Bombay, to show cause why a case should number be so stat- ed. It was argued before the High Court that the Court had numberjurisdiction to order the Commissioner to state a case for its opinion. When the matter reached the Privy Council the objection to the jurisdiction was put more broadly. Before the High Court the only question raised was whether the Authority had a duty, in the circumstances, to state a case. The point raised before the Judicial Committee of the Privy Council took the form of saying that even if the Authority had a duty, the Court companyld number require him to exercise it and for this purpose reliance was placed upon the well-known general purview of the Indian Legislation which excludes matter of revenue from the companysideration of the ordinary civil Courts, the principle being exemplified in the case of Spooner v. Juddow 1 and upon section 106 2 of the Government of India Act, 1915. The judgment of the Board companysisting of Viscount Haldane, Lord Phillimore and Lord Carson was delivered by Lord Phillimore. In the judgment it is stated as follows -- It is said that, though under this section, the Chief Revenue Authority may, if he thinks fit, draw up a statement of the case and refer it to the High Court he is number bound to do so even on the application of the person to be assessed, if he is satisfied that the application is frivolous or that the reference is unnecessary and that the Authority has in the present case shown that he is satisfied that the application was frivo- lous and the reference was unnecessary. This argument was rejected by the High Court. Their Lordships of the Privy Council agreed with the view of the High Court that this was too narrow a companystruction of the section. They observed Take first the case which is last in the clause. If the assessee applies for a case the Authority must state it unless he can 1 1850 4 Moo. I.A. 353. say that it is frivolous or unnecessary. He is number to wait for the companyrt to order him to do it will be a misfeasance and a breach of the statutory duty if he does number do it The judgment did number end by relying only on that portion of section 51 1 of the Indian Income Tax Act, 1918. It pro- ceeds to state as follows --Put that case aside. The rule here is supported upon the earlier part of the section. No doubt that part does number say that he shall state a case, it only says that he may. And as the learned companynsel for the respondent rightly urged, may does number mean shall. Neither are the words it shall be lawful those of companypul- sion. Only the capacity or power is given to the Authority. But when a capacity or power is given to a public authority there may be circumstances which companyple with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. Bishop of Oxford 1 There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, some- thing in the companyditions under which it is to be done, some- thing in the title of the person or persons for whose bene- fit the power is to be exercised, which may companyple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. In their Lordships view, always supposing that there is a serious point of law to be companysidered, there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the Court, and if he does number appreciate that there is such a serious point, it is in the power of the Court to companytrol him and to order him to state a case. This reasoning and companyclusions, although they have number number the companypelling force they had before the 26th of Janu- ary, 1950, are entitled to great respect. Apart from that, we entirely agree with that line of reasoning and the company- clusion. In our opinion, in the present case the power to make a reference under section 57 is number only for the bene- fit of the appellant. 1. 5 A.C. 214, 222. It is companypled with a duty cast on him, as a public officer to do the right thing and when an important and intricate question of law in respect of the companystruction of a document arises, as a public servant it is his duty to make the reference. If he omits to do so it is within the power of the Court to direct him to discharge that duty and make a reference to the Court. Mr. Daphtary on behalf of the appellant tried to distin- guish this case on the ground that the scheme of the Income Tax Act was different from the scheme of the Stamp Act. In our opinion, the observations quoted above and the princi- ples underlying the same are applicable to the duty cast on the appellant under section 57 of the Stamp Act and minor points of distinction between the schemes of the two Acts are immaterial for the present discussion. In the words of Lord Cairns the very nature of the thing empowered to be done by the appellant and the companyditions under which he has to fix the amount of the duty, companyple the power with the duty to state a case for the opinion of the Court. The provisions of section 51 1 and a run on the same lines as section 59 of the Stamp Act. Mr. Daphtary next pointed out that there was a difference in the scheme of the Act, because when the Collector issued a certificate under sec- tion 32, even though his assessment might be faulty and against the interest of the State, the State or the appel- lant had numberremedy. This overlooks the provisions of the section empowering the Collector to issue the certificate. The scheme of the Stamp Act may be briefly numbericed. Chapter II companytains provisions about the liability of instruments to duty, of the time of stamping instruments, of valuations for duty and provisions as to the person by whom duty is pay- able. Chapter III which companytains only two sections deals with the adjudication as to stamps. The first section 31 is where an instrument, whether executed or number and whether previously stamped or number, is brought to the Collector with an application to have his opinion as to the duty with which it is chargeable. For obtaining that opinion the applicant has to pay a fee. The Collector may call for information and take evidence. After he has done so he determines the amount of the stamp duty and certifies under section 32 that the full duty with which it is chargeable has been paid. It is obvious that the party applying is interested in obtain- ing the opinion and therefore he cannot object to the cer- tificate of the Collector. If the Collector himself is in doubt he has the power under section 56 2 to ask for the opinion of the appellant. It is therefore clear that in respect of these two provisions under Chapter III numbergriev- ance companyld exist on either side. From section 33 and Chap- ter IV onwards there are provisions in which the opinion of the Stamp Officer and of the party interested in paying the stamp duty may companye in companyflict. The sections in Chapters IV, V and VI ending with section 61, deal with situations arising from such difference of opinion. Section 57 1 falls under this heading. In our opinion, therefore, this companytention of the appellant fails. The next point urged was whether the High Court has jurisdiction to order the Revenue Authority to state a case in face of the provisions of section 226 of the Government of India Act, 1935. The argument was urged in two parts Firstly, that this being a. revenue matter, the jurisdiction of the Court was excluded. Secondly, that the matter had ceased to be in the stage of assessment but had reached the stage of companylection of stamp duty. On that ground the present case was sought to be distinguished from Alcocks case 1 . In our opinion this argument of the appellant must also fail. A similar argument based on the wording of the companyresponding section 106 2 of the Government of India Act, 1915, as mentioned above, was urged in Alcocks case 1 . On that point their Lordships observed as follows -- Upon the point thus broadly stated their Lordships have numberdifficulty in pronouncing a decision. To argue that if the legislature says that a public officer, even a revenue officer, shall do a thing and he, without cause or justifi- cation, refused to ,do that thing, yet the Specific Relief Act would number be applicable and there would be numberpower in the Court to companypel him to give relief to the subject is to state a 1 50 I.A. 227. proposition to which their Lordships must refuse assent. In dealing with the argument that because of section 106 2 of the Government of India Act, 1915, the High Court had numberjurisdiction to make the order, the Board observed as fol- lows -- In their Lordships view the order of a High Court to a revenue officer to do his statutory duty would number be the exercise of original jurisdiction in any matter companycern- ing the revenue. In our opinion, in the present case also, the respondent seeks the Courts intervention to make the appellant perform his statutory duty to state a case. That is number exercising the original jurisdiction of the Court in any matter companycerning the revenue. It is only asking the appellant to perform his statutory duty. The further argu- ment that the proceedings in this case had passed beyond the stage of assessment and had reached the stage of enforcing payment is again irrelevant because by the relief granted by the High Court numberattempt is made to obstruct the Revenue Authority in the discharge of his duties.

Case appeal was rejected by the Supreme Court

APPELLATE JURISDICTION Criminal Appeal No. 10 of 1950. Appeal by special leave from a judgment of the High Court of Punjab Falshaw and Soni JJ. dated 30th December, 1949, upholding the companyviction of the appellant under ss. 302 and 307 read with s. 34 of the Indian Penal Code and companyfirming the sentence of death passed against him by the Sessions Judge of Ferozepore on the 20th July, 1949, in Criminal Appeal Case No. 325 of 1949. Jai Gopal Sethi R. L. Kohli, with him for the appel- lant. K. Khanna, Advocate. General of the Punjab, S. M. Sikri, with him for the respondent. 1950. October 17. The judgment of the companyrt was deliv- ered by FAZL ALI J.--This is an appeal by special leave from the judgment of the High Court of Punjab upholding the companyvic- tion of the appellant. Mohinder Singh, under sections 302 and 307 read with section 34 of the Indian Penal Code, and companyfirming the sentence of death passed against him by the Sessions Judge of Ferozepore. The case for the prosecution which has been substantial- ly accepted by the trial Judge and the High Court is briefly as follows. Sometime in January, 1949, one Bachittar Singh, brother of Dalip Singh who is said, to have been murdered, lodged a companyplaint before the NaibTehsildar at Zira to the effect that a tree belonging to him had been cut by 7 per- sons including Mohinder Singh, the appellant. On the 28th February, 1949, which was the date fixed for the hearing of the case before the Naib TehsiIdar, Jita Singh and Dalip Singh, the two brothers of Bachittar Singh, were attacked by the appellant and one Gurnam Singh, a lad of 17, near a Gurdwara at about mid-day, when they were returning from their field. Jita Singh was then carrying a load of fodder on his head while Dalip Singh had sickles in his hand. Jita Singh was the first to be at- tacked near a tailors shop by Mohinder Singh who fired at him from behind hitting him on the neck whereupon he fell down together with the bundle of fodder. Dalip Singh, who was following Jita Singh, then ran backwards and he was chased by Gurnam Singh round the outer boundary of a tank which was close by. Mohinder Singh ran on the other side of the tank in the opposite direction and companyfronted him and shot him with a gun on the chest whereupon he fell down. Meanwhile, Gurnam Singh had also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singhs ear while he was lying sideways. The injuries proved fatal and Dalip Singh died on the spot. The same day at 3 p.m., Jita Singh went to the police station at Dharamkot, which is at a distance of 3 miles from village Augar, where the occurrence had taken place, and lodged a first information report, charging Mohinder Singh, with having caused injury to him, and Mohinder Singh and Gurnam Singh with the murder of Dalip Singh and the police after investigating the case sent up a charge-sheet against the two accused persons. Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code. The appellant was sentenced to death under section 302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth. They were also sentenced to 3 years rigorous imprisonment each under section 307 read with section 34 of the Indian Penal Code. It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post- mortem on his body in these words- An irregularly round gun shot wound on the left temporal region, 1 diameter. The wound is 22 behind outer canthus of left eye, its upper portion is at a level with the top of the pinna of the left ear, behind it companymences at the cartilages of the ear which are broken. Brain is visible in the gap of the wound. An area 4 x 4 is blackened, the wound being situated in the middle of this area. A gun shot wound 3/4 X 1/2 on the back of right mastoid region, upper end of the wound is 1 behind the root of the right ear. Direction is vertically oblique. On dissection the left temporal bone under injury No. 1 is, hole and its petrous portion shattered. A linear fracture extends upwards and backwards, from the hole into the left parietal and occipital bones. After piercing through the left temporal lobe of the brain the projectile has pierced through the brainstem, and emerged out as injury No. 2, holding the mastoid region of the skull on the right side. A gun shot wound 3/4 X 5/8 on the left side of chest 21/2 above and behind the left nipple and 1/2 behind the anterior axillary fold as area 1 below the wound is bruised. A gun shot wound 1/2X 3/4 on the right side of chest in the mid axillary line. The top of the wound being 1-3/4 from the apex of right axilla and 4-3/4 above and behind the right nipple. A gun shot wound 1/2x 1/4 on the inner aspect of the right arm, upper end of the wound is 11/4 from the top of the anterior axillary fold. A gun shot wound 3/4X 1/2 on the front of the right arm. Its upper end being 21/2 from the top of the anterior axillary fold. Its distance from injury No. 5 being 1 and it is inter-connected with injury No. 5 under the skin. The doctor has stated in his evidence that in all two projectiles appeared to have hit Dalip Singh, and injuries Nos. 1 and 2 were caused by one of them, injury No. 1 being the wound of entrance and injury No. 2 being the wound of exit, With regard to the other 4 injuries, his evidence is as follows - Injury No. 3 is the wound of entrance of another projectile and No. 4 is the wound of its exit. Wound No. 5 is the wound of its re-entrance and wound No. 6 the wound of its final exit from the body. Jita Singh had 4 slight injuries on the back of the neck which are said to have been caused by pellets and two abra- sions below the right elbow and right knee said to have been caused by blunt weapons. It may be stated here that when the investigating police officer arrived at the scene of occurrence, he found an empty cartridge case at the place where Jita Singh is said to have been fired at, and 2 empty cartridge cases and a blood-stained cap of a cartridge case near the place where the dead body of Dalip Singh was lying. Later, when Mohinder Singh appeared before the police, he was asked whether he possessed a gun and he produced a 12 bore gun exhibit P-16 for which he held a licence. The gun and the empty cartridges were thereupon sent to Dr. Goyle, Director of the C.I.D. Laboratory, Phillaur, and the opinion that he submitted may be summed up as follows --The gun had signs of having been fired but he companyld number say when it was fired last. The cartridge cases P-10 and P-15 companyld have been fired through the gun P-16, but he companyld number say wheth- er they were actually fired from that particular gun or a similar gun or guns. He did number make any experiment by firing any cartridge from the gun P-16, number did he companypare the markings on the empty cartridges P-10 and P-15. A numberable feature of the case is that the occurrence is said to have taken place in the vicinity of a Gurdwara and some houses, but in spite of this fact, number a single person of the locality has been cited or examined as a witness by the prosecution. The whole case rests on the evidence of 3 witnesses, viz., Jita Singh, Harnam Singh and Buta Singh. Jita Singh, who had been shot at from behind, claims to have seen the two accused firing at his brother. Harnam Singh admittedly lives at a companysiderable distance from the place of occurrence but has stated that he was companying from another village where he had gone to fetch some medicine for his maternal companysin, when he saw the occurrence. Buta Singh, who is a tonga driver, belongs to a distant village and is somewhat remotely related to Harnam Singh, and accounts for his presence near the scene of occurrence by saying that he had companye to see Harnarn Singh the evening before. Harnam Singh admitted in his evidence that there was a dispute between him and Mohinder Singh nearly a month before the occurrence about a wall, but he also says that the dispute had been amicably settled by the panchayat. There is numberhing before us to show what the award of the panchayat was and whether or number it left any ill-feeling behind. But, on the argu- ments of the companynsel and the apparently trivial motive for which Dalip Singh is said to have been murdered, it would appear that among the class of persons with which we are companycerned petty quarrels give rise to enmity which does number die soon or easily. After the close of prosecution evidence in the Ses- sions Court, the appellant was examined under section 342 of the Criminal Procedure Code, and he denied that he had fired at Jita Singh and Dalip Singh with the gun P-16 and that Gurnam Singh had fired at Dalip Singh with a rifle. He added that he was number present in village Augur at the time of the alleged occurrence but had gone to Zira to attend the Naib Tehsildars companyrt. To establish his plea of alibi, he examined 3 witnesses in the companyrt of the Sessions Judge. The first witness was the Naib Tehsildar before whom Bachittar Singh had lodged the companyplaint, and he stated that when the case was called on the 28th February, 1949, 6 or 7 persons appeared in companyrt. He also proved an application for a taccavi loan which purports to have been filed by the appel- lant on the 28th February, 1949, and bears his thumb impres- sion. He further stated in his evidence that he had passed orders on that application on the 28th February but he did number know Mohinder Singh and therefore companyld number say who had produced that application before him on that date. The second witness for the appellant was his brother-in-law, Jogindar Singh, who had written the application. exhibit D-C. He has stated that Mohinder Singh himself was present in the companyrt of the Naib Tehsildar on the 28th February, 1949, that he had signed the application exhibit D-C and that he was also one of the persons who had appeared before the Tehsildar when Bachittar Singhs case was called out. The third defence witness is a hand-writing and fingerprint expert. He has proved that the application exhibit D-C alleged to have been presented to the Naib Tehsildar on the 28th February bore the thumb impression of the appellant, and he has also given evidence to show that certain handwritings which he was asked to companypare did number tally. The evidence given by him with regard to these handwritings has a bearing on the assertion made by the appellant in a petition filed before the companymitting Magistrate to the effect that the original service report of the process peon showing that the appellant also was one of the persons served for appearance before the Naib Tehsildar on the 28th February, 1949, had been suppressed and another report with forged handwriting had been substituted in its place. Both the companyrts below have held that the alibi has number been proved by satisfactory evidence and that the charges against the appellant have been made out. It seems that the learned Judges of the High Court were number at all impressed by the evidence of Dr. Goyle which they characterized as unsatisfactory and they were number also companyfident that the gun, exhibit P-16, had been used in causing the injuries to Dalip Singh. This appears from the folio.wing observations made by them in their judgment-- The gun P-16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the gun because of a brass plate at its butt end. We have seen the gun. Its brass plate companyld be of numberuse for the identification of the gun. Again, companymenting on the nature of the injuries, the learned Judges observed as follows -- Another difficulty which is created in this case is the nature of injuries found on the body of Dalip Singh What kind of bullet it was which, though it had blackened the area where it entered the brain showing that it had been fired from number far away, did number shatter the brain we do number know. What kind of projectile it was which entered the body which if the evidence as to be believed was fired at from a few feet at Dalip Singh and passed through the body without shattering the inside of the chest or causing extensive damage therein is also number known. Mr. Sethi companynsel for the accused quoted Taylors book on medical jurisprudence and Hatehers book on ballistics and argued that the firing must have been from a place between 600 and 1,200 yards away in order that the projectile may pass through and through the body and number shatter it. That of companyrse pre-supposes that the barrel of the gun, using the word gun m a generic sense, is grooved which causes a projectile to go forward with a rotatory motion of something under a quarter of a million revolutions a minute and travelling at the rate of about 2,000 miles an hour when it leaves the gun We do number know whether the barrel of this gun exhibit P-16 is grooved or number. It. is a single bar- relled gun and is companyntry made. The likelihood is that the barrel is number grooved. On a careful reading of the judgment under appeal, it appears that the learned Judges of the High Court strongly felt that they had numberadequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very mate- rial part of the prosecution case. in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been companysidered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are al- leged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecu- tion is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it companyld have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone companyld settle the companytroversy as to whether they companyld possibly have been caused by a fire-arm being used at such a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and number by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the prosecu- tion evidence on a most fundamental point and the error which has been companymitted by the companyrts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of whom are mere chance witnesses and number altogether independent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck. The learned Judges of the High Court, after companymenting upon the entire evidence, say in their judgment- We are thus left with the evidence of the three wit- nesses of the prosecution together with the state of wounds as shown by the medical evidence and an unsatisfactory statement of Dr. Goyle. They reject the evidence of Dr. Goyle and they companysider the nature of the wounds to have created a serious dificulty in the case. Having arrived at these companyclusions, it was a serious thing to rest the appellants companyviction wholly upon the oral testimony in the case which has remained unchecked and unconfirmed by expert evidence. The real position ap- pears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissible to use such an expression. This Court, as was pointed out in Pritam Singh v. The State 1 , will number entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. It seems to us that the present case companyes within the rule laid down, because the appellant has been companyvicted numberwithstand- ing the fact that the evidence is wanting on a most.material part of the prosecution case. This is enough to dispose of this appeal, but we are companystrained to say that we are number altogether happy about the manner in which the plea of alibi put forward by the appellant has been disposed of by the companyrts below. Ordi- narily tiffs companyrt will number look beyond the findings of fact arrived at by the companyrts below, but we find that in the present case the decision on the plea of alibi has been arrived at in disregard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable stand- ard. It is companymon ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February, 1949, which was the date fixed for dealing with Bachittar Singhs companyplaint. Ordinarily and without looking at anything else, there should have been numberhing improbable about his appearance before the Naib Tehsildar on that date, but in the present case there is positive 1 1950 S.C.R. 463. evidence that an application for a taccavi loan bearing that date and also bearing the thumb impression the appellant was put up before the Naib Tehsildar and that was dealt with by him on that very day. There is also affirmative evidence of a witness to prove that the appellant was present in the Naib Tehsildars companyrt. This witness is undoubtedly closely related to the appellant but his evidence is supported by probability and a written document. One of the points raised by the prosecution was that the summons for appear- ance on the 28th February was number served upon Mohinder Singh, but such evidence as there is on the record bearing on this point has certain peculiar features. The prosecu- tion having cited the Naib Tehsildar and the Ahlmad Bench Clerk as witnesses in the case gave them up and stated that the former had been won over by the appellant. This allega- tion companyld have been substantiated in the cross-examina- tion of the Naib Tehsildar who was examined as a defence witness, but numberhing was elicited from him to support such a charge. From the evidence of the Naib Tehsildar, it appears that on the 5th July, 1949, the Public Prosecutor showed him exhibit P.S. which is an order directing the appearance of the seven persons including the appellant mentioned by Bachittar Singh in his companyplaint, before the Naib Tehsildar on the 28th February, 1949 . and that he told the Public Prosecutor that 6 or 7 persons appeared in his companyrt. on that date. After this incident, on the 6th July, 1949, the Public Prosecutor informed the Court that he would give up the Naib Tehsildar as he has been won over . The evidence of the process peon is of a somewhat suspicious character, because he has companyveniently forgotten every material detail. The appellant asserted at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place. An application to this effect was made by him before the companymitting Magistrate, and he also examined a handwriting expert to prove some of his allegations. Neither of the companyrts below has dealt with the evidence of this expert. The evidence of the Investigating Officer as recorded by the Sessions Judge is to the following effect -- B. and P.C. were obtained by me from the headquar- ters. Along with P.B. and P.C. the Parvana P.S. was also received by me. After going through the zimnis, the witness states that the aforesaid documents P.B., P.C. and P.S. were summoned by the companymitting Magistrate and were number sent for by the witness. On 16th March, 1949, a Foot Constable was certainly sent to Zira to bring the said file. But since the file had been sent to the headquarters, therefore, the said companystable returned quite blank. I never inspected this file at the headquarters. The most material document with which we are companycerned is P.S. which should have companytained an endorsement of serv- ice of summons on the persons against whom Bachittar Singh had companyplained.

Case appeal was accepted by the Supreme Court

APPEAL from a judgment of the High Court of Hyderabad under article 374 4 of the Constitution of India Civil Appeal No. 189 of 1950. Abdul Wahid Owasi, for the appellant. Ahmed Saeed Khan, for respondent No. 1. 1950. October 12. The judgment of the Court was delivered by KHALILUZZAMAN J.--This appeal arises out of execu- tion proceedings. The appellant, Kapurchand, had a money decree, amongst others, against one Mir Hamid Ali Khan, husband of the respondent Mst. Kaderunnissa. In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached. To the attachment the widow of the deceased raised an objection on the ground that she was in possession of it in lieu of her outstanding dower and companyld number be dispossessed till her claim was satisfied. The objection was allowed by the executing companyrt and it was ordered that the house be sold subject to the respondents claim, the decree-holder being entitled to the surplus, if any, out of the sale proceeds. There was number much possibil- ity of the house fetching more in the execution sale than the amount due on account of dower. The companyrt took the view that the widows claim for dower had priority over the debts due to other unsecured creditors and her position was analo- gous to that of a secured creditor. The decree holder made an application in revision to the High Court but without any success. He then preferred an appeal to the Judicial Com- mittee of the State and it is number before us under article 374 4 of the Constitution. The sole point for determination in the appeal is wheth- er a widow in possession of her husbands estate in lieu of her claim for dower with the companysent of the other heirs or otherwise is entitled to priority as against his other unsecured creditors. It is companyceded that the husband died leaving the house in dispute and leaving outstanding a number of debts including the one due to the decree-holder. The house was number charged or mortgaged by him either in favour of his wife or in favour of any of the creditors. If the husband had created any charge in favour of his wife in lieu of her claim for dower, then it cannot be doubted that she would have priority over the unsecured creditors. No specific Quranic text or any other original authority on Muslim law has been cited in support of the companytention that a widows claim for dower stands on a higher, footing than the claim of any creditor in respect of an unsecured debt. Reference was made to a text in Sur-ai-Nissa which enjoins a husband to pay the claim of his wife and it also says that widows and minors should be given favourable treatment. This text does number give an absolute protection to the claim of the widow as against other claims. On the other hand, a Muslim is enjoined to observe his engagements and to keep his companytracts faithfully and to discharge his liabilities in an honest manner. No distinction is made between an injunc- tion relating to the payment of dower on the one hand and the payment of the other debts on the other. The learned advocate for the appellant companytends that a widows claim for outstanding dower even when she is in possession of her husbands estate in lieu of her claim with the companysent of other heirs of the deceased stands on numberbetter footing than that of unsecured creditors, though in their absence she is entitled to be paid in full before the estate is distributed among the heirs. He drew our attention to certain passages from the holy Quran and from writings of other jurists on this subject. The learned companynsel for the respondent, however, argued that a widow has a lien on her husbands estate for her outstanding dower and when she has entered into possession of his house after his death she cannot be dispossessed till her claim is satisfied either by the heirs or by the unsecured creditors. He placed reliance on a decision of the Hyderabad High Court and also of some other High Courts in India. A careful examination of the various authorities on the subject shows that the proposition of law on this subject has been companyrectly enunciated in Tyabjis Muhammadan Law 1940 Edn. in these terms 1 A widow by her lien does number have any priority over other creditors 2 Mehr as a debt has priority over other heirs claim to have the estate distributed among themselves. These two companysiderations are number affected by the fact of her being in or out of posses- sion of the estate. It seems clear that unless the husband by his own act has placed the widow in a better position than his other creditors, her claim for dower is in the nature of an unsecured debt and she has numberpriority of any kind against the other unsecured creditors of her husband. The Quranic text in Surai-Nissa, Ruku 4, enjoins the payment of dower in preference to bequests and inheritance but it is silent on the question of priority of dower debt in relation to other creditors. In Mubsoot Sarkhasi, Vol. 29, Kitabul- faiaiz, page 137, it is pointed out that payment of debts has priority over bequests and wills. In the administration of the estate of a deceased Muslim the rule laid down by early text writers and Fatwas, such as Fatwa-e-Alamgiri, is that in the first instance the funeral expenses of the deceased should be paid out of the estate and that having been done, the estate should be divided between the legatees and the heirs after payment of the debts due from him. No priority has been indicated in respect of a dower debt of a widow over other unsecured creditors even if she has taken possession of her husbands estate after his death. It was said that the nature of the widows claim for dower is such that it amounts to a lien on the husbands estate. The claim for lien is based on the assumption that the dower debt is companysideration for the marriage and is number merely a voluntary debt incurred due to the respect to the wife. According to Hamiltons Hedaya 1870 Edn., page 44 , the leading text book on Hanafi law, if a person specifies a dower of ten or more diams and should afterwards companysummate his marriage, or be removed by death, his wife in either case can claim the whole of the dower specified, because by companysummation her claim for dower becomes absolute. The. dower debt becomes her property and it devolves on her heirs and has to be paid out of the estate of the husband. It has been described as a debt upon the husband to be paid out of his estate. The dower of a Muslim woman is a settlement in her favour made prior to the marriage companytract and is similar to the donatio propier nuptias of the Romans but is of such an obligatory nature that if it is number mentioned before or at the time of the marriage, it is presumed to exist to the extent of a proper dower amount. Among the Hebrews the dower settled on a wife was for her use after the termination of marriage and among the Jews marriages without similar companysideration were in- valid. As pointed out by Mr. Ameer Ali in his book on Muham- madan Law, the custom originated in ancient times with the payments made by husbands to their wives as a means for their support and as a protection against the arbitrary exercise of the power of divorce. The Muslim companycept of dower has numberreference to the price that under some systems of law was paid to the father of the bride when she was given in marriage. On the other hand, it is companysidered a debt with companysideration for the submission of her person by the wife . The result of the above discussion is that dower is purely in the nature of a marriage settlement and is for companysideration. It is a claim arising out of companytract by the husband and as such has preference to bequests and inheri- tance, but on numberprinciple of Muhammadan Law it can have priority over other companytractual debts. In our view, there- fore, a dower debt cannot be given any priority over other debts on any equitable companysideration or on the ground that there is something inherent in its very nature which enti- tles it to priority. It is number companyvenient to examine the decided cases on this subject. In Ameer Ammal v. Sankaranarayanan Chetty 1 a Bench of the Madras High Court held that a claim for unpaid dower companystitutes a debt payable pari passu with the demands of other creditors and is number a preferential charge on the estate. In Maina Bibi v. Chaudhri Vakil Ahmad 2 it was held that where the widow is number in the position of a se- cured creditor and is otherwise in possession of the hus- bands estate with the companysent of the heirs, she is entitled to retain possession of it until her dower debt is satis- fied. Their Lordships observed that it was number necessary to say whether the right of the widow in possession is a lien in the strict sense of the term. Whatever the right may be called, it appears to be founded on the power of a widow as a creditor for her dower to hold the property of her husband of which she has lawfully, and without force or fraud, obtained possession until her debt is satisfied. This decision does number place the widow on a higher footing than any other creditor. As against the heirs all creditors are to be paid in priority before the estate can be distributed. In Meer Meher Ally v. Mst. Amanee 3 it was held that the lien of the widow over the property in her possession is number a lien in the ordinary legal sense of the term and that a claim for dower is in the same position as that of any other ordinary creditor and ranks pari passu with them and like other debts has to be paid before the heirs are entitled to take anything. In Maina Bibi v. Wasi Ahmad 4 it was held that she has numberright of possession against the creditors, number being a secured creditor herself. At page 547 the following observations occur - she cannot set up any such right of possession against creditors claiming to have the debts owing to them from the husband satisfied out of the estate. She is number a secured creditor her claim for her dower I.L.R. 25 Mad. 658. 3 11 W.R. 212.A11.538. 2 52 I.A. 145 4 I.L.R. 41 All 538. debt ranks equally with the claims of other creditors of her husband, In Hamira Bibi v. Zubaida Bibi 1 it was observed that dower ranks as a debt and the wife is entitled along with the other creditors to have it satisfied on the death of the husband out of his estate. Her right, however, is numbergreater than that of any other unsecured creditor. Qua the heirs she has a creditors lien. In Imtiaz Begum v. Abdul Karim Khan ,2 the same view was expressed. In para. 295 Mr. Mulla in his book on Muhammadan Law has adopted the view that dower ranks as a debt and that the widow is entitled along with other creditors to have it satisfied out of the estate and that her right is number greater than that of any other creditor. The learned companynsel for the respondent relied on the decision in Kulsum Bibi v. Shiam Sunder Lal 3 , in which it was held that a widow in possession of her husbands estate is entitled as against the other heirs of her husband and as against the creditors to retain posses- sion until her dower is satisfied. The same view had been taken earlier in Mst. Ghafooran v. Ram Chandra Das 4 by a single Judge. It was said that her possession companyld number be disturbed till her dower debt was satisfied. In Mohamed Turabuddin v. Yasin Begum 5 a Bench. of the Hyderabad High Court held that the claim of a widow for dower was in the nature of a secured debt. There was numberother creditor in that case which arose between the heirs and the widow. However, in Wahidunnissa Begum v. Yasin Begum 6 it was pointed out that the claim of the widow for dower does number create any interest or charge on the property and that the position of a widow is number only that of a creditor where her dower remains unpaid but also of an heir. The result of the authorities is that excepting the two Allahabad decisions mentioned above and a decision of the Hyderabad High Court, the companysensus A.LR. 1916 P.O. 46. 14 A.I R. 1934 All. 168. A.I R. 1930 All 881. 5 17 D.L.R.224. A.I.R. 1936 All 600. 6 32 D.L.R. 421. of authority is against the proposition that a widow as an unsecured creditor has any priority over the other unsecured creditors of her husband. In our opinion, the above men- tioned two Allahabad decisions do number lay down the law companyrectly on this point and the rule has been companyrectly laid down in Ameer Arereal v. Sankaranarayanan Chetty 1 . There is numberhing repugnant or inequitable according to the principles of Muhammadan Law in the estate of a deceased Muslim being rateably distributed between the unsecured creditors. For the reasons given above we hold that the objection raised by the widow had numbersubstance in it and the executing companyrt should have directed the property to be sold and the sale proceeds distributed rateably amongst the decreeholders and the widow. In the result we allow this appeal, set aside the judgments of the two companyrts below and direct the execut- ing companyrt to proceed with the execution in accordance with the observations made herein.

Case appeal was accepted by the Supreme Court

Mahajan, J. This appeal arises out of execution proceedings of a decree passed by an arbitrator under the Co-operative Credit Societies Act. The appeal was presented to the Judicial Committee of the State and is number before us under article 374 4 of the Constitution. Raja Nandlal was a member of the decree-holder Society and was also its debtor. A dispute arose between him and the society and under the rules governing such societies the matter was referred to arbitration. The arbitrator on the 19th Meher 1352 F., passed a decree against him in the sum of Rs. 8,100 payable in equal six monthly instalments with six per cent. interest, the first instalment being payable at the end of Azur 1353 F. On the 2nd Dai 1353 F., under the provisions of section 42, clause d , of the Co-operative Societies Act the decree was sent for execution to the civil companyrt on a certificate issued under the signature of one Moulvi Mohammed Hasan, Madadgar Nazim. The amount recoverable was stated as Rs. 8,100 principal and Rs. 666-9-0 interest. On the same day the decree-holder presented an application for execution of the decree to the Civil Court, Balda, claiming recovery of Rs. 10,339-14-9. It was alleged that as default had been companymitted in the payment of the first instalment due in the month of Azur 1353 F., the whole decretal amount had become recoverable. It was prayed that the property detailed in the application be attached. On 3rd Dai 1353 F., i.e., a day after the presentation of the application for execution, the judgment debtor deposited a sum of Rs. 1,000 towards the first instalment in the Office of the Registrar of Co-operative Societies and expressed his willingness to deposit any further amount that may be due towards that instalment. The Nazims office stated in reply that as he had companymitted default in the payment of the first instalment the whole decree had become due and the amount of Rs. 1,000 companyld number be accepted. Subsequently, however, on the 5th Dai 1353 F., a letter was issued by one Mohammed Aihsan, Assistant Madadgar Nazim, to the Civil Court, Balda, saying that Rs. 1,034 had been deposited in the Office of the Nizamat Co-operative Credit Societies and therefore the proceedings in execution should be stayed or adjourned. On receipt of the letter in the civil companyrt the decree-holder raised an objection that the Registrar had numberjurisdiction to stay execution of the decree as he was number an executing companyrt. This objection was overruled by the companyrt and it was held that under the provisions of section 42 of the Co-operative Credit Societies Act the Registrar retained the power of staying execution of the award decree even after the issue of a certificate by him. In the result the execution proceedings were stayed. Against this order an appeal was taken to the Sadar Adalat. The Sadar Adalat allowed the appeal partially and held that to the extent of the payment made the decree companyld number be executed but it companyld be executed with respect to future instalments as and when they would fall due. It further found that the default clause in the decree must be taken to have been companydoned by the deposit of the first instalment in the office of the Registrar. The decree-holder preferred a second appeal to the High Court but without any material success. The High Court held that there had been a default in the payment of the first instalment and the decree-holder had thus a right to execute the whole decree and that neither the Registrar number the executing companyrt companyld deprive the decree-holder of that right. In spite of this finding it took the view that the Registrar still retained jurisdiction to adjourn execution proceedings. The companytention of the judgment-debtor that the certificate was bad as having been issued by a Madadgar Nazim was negatived. It was held that the Madadgar Nazim had delegated powers in this respect and that the defect, if any, stood cured by a fresh certificate signed by the Nazim himself. The result was that with these findings the decision of the executing companyrt adjourning the execution proceedings was maintained. The first point for companysideration in this appeal is as regards the jurisdiction of the Registrar functioning under the Co-operative Credit Societies Act in respect to execution of decrees. The decision of this question depends on the interpretation to be placed on the language employed in section 42, clause d , of the Co-operative Credit Societies Act, 1340 F., as amended. This section is in these terms - If an award given by the Registrar or by a person numberinated by him, or by a companymittee of arbitrators is number acted upon, then the Registrar can have it enforced - a through a civil companyrt on a certificate issued by him. The civil companyrt will treat the award in the same way as its own decree b through a Revenue Court or officer by issuing a certificate to that companyrt or officer. The language employed in this section does number place the Registrar on the same pedestal as a companyrt passing the decree under the Civil Procedure Code. Under the Code a civil companyrt passing a decree is also the companyrt executing the decree. It has a dual capacity, 1 of the companyrt passing the decree, and 2 of the executing companyrt. The Registrar, it appears, has the first capacity of a civil companyrt but he has number been placed in the matter of execution in the same capacity as a civil companyrt passing a decree. The only jurisdiction companyferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil companyrt or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by withdrawing the certificate withdraw execution from a civil companyrt and sent it to a revenue companyrt and vice versa. On the plain words of the section it cannot be held that the Registrar has been companystituted an executing companyrt or that any powers in the matter of the execution of the award decree have been companyferred upon him. The question that arises for companysideration is whether in view of this companystruction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil companyrt on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case. After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing companyrt to stop further proceedings. The act of the Registrar in accepting the first instalment was a clear trespass on the duties of the executing companyrt. It is only in the executing companyrt where payment towards satisfaction of the decree, the execution of which had been taken out, companyld be made, unless the companyrt passing the decree has also the jurisdiction to execute it. As already indicated, this jurisdiction is number possessed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing companyrt to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction companyferred on him and the executing companyrt was entitled to ignore it. Moreover, the Registrar companyld number alter or amend the decree passed by the Arbitrator at this stage. All the companyrts below have interpreted the section to mean that the Registrar as the companyrt passing the decree has the same power as the companyrt executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil companyrts is number available in interpreting this Act. Under the Civil Procedure Code the parent companyrt, i.e., the companyrt passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more companyrts for the purpose of execution. Primarily it is the function of the companyrt passing the decree to execute it but when it is found that it is number possible for it to effectively execute it provision has been made in the Code authorising it to send it to other companyrts for the purpose of execution but numbere of these provisions in any way affect the jurisdiction of the companyrt passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other companyrts does number take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given numberjurisdiction to execute his own decree. The only power companyferred on him is to get it realized through a civil companyrt or a revenue companyrt and the only authority companyferred on him is to issue a certificate for that purpose. The High Court in this case has, in our opinion, given a decision companytradictory to its own findings. It has been held that the first appellate companyrt was in error in the view that the default clause in the decree stood companydoned by the payment of the first instalment by the judgment debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had numberjurisdiction to companydone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this companyclusion the High Court still maintained the decision of the two companyrts below adjourning the execution proceedings. The logical result of the High Courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil companyrt to stay execution proceedings pending before it is a clear encroachment on the powers of the executing companyrt and is in excess of his statutory powers and should have been ignored by the companyrts. As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to companysider the companytention of the learned companynsel that there was numberproper certificate in this case and the proceedings in execution therefore were without jurisdiction. The result therefore is that this appeal is allowed, the decisions of all the three companyrts below are set aside and the executing companyrt is directed to proceed with the execution of the decree from the stage at which it was interfered with by the letter received from the office of the Registrar.

Case appeal was accepted by the Supreme Court

APPEAL under article 374 4 of the Constitution from a judgment and decree of the High Court of Hyderabad dated 24th Aban 1356 F., in Civil Appeal No. 374/4 of 1356 F. Devi Pershad, for the appellant. Appa Rao and Sada Shiva Rao, for the respondent. 1950. October 12. The judgment of the Court was deliv- ered by MAHAJAN J.--This appeal arises out of execution proceed- ings of a decree passed by an arbitrator under the Co-opera- tive Credit Societies Act. The appeal was presented to the Judicial Committee of the State and is number before us under article 374 4 of the Constitution. Raja Nandial was a member of the decree-holder society and was also its debtor. A dispute arose between him and the society and under the rules governing such societies the matter was referred to arbitration. The arbitrator on the 19th Meher 1352 F., passed a decree against him in the sum of Rs. 8,100 payable in equal six monthly instalments with six per cent. interest, the first instalment being payable at the end of Azur 1353 F. On the 2nd Dai 1353 F., under the provisions of section 42, clause d , of the Co-opera- tive Societies Act the decree was sent for execution to the civil companyrt on a certificate issued under the signature of one Moulvi Mohammed Hasan, Madadgar Nazim. The amount recoverable was stated as Rs. 8,100 principal and Rs. 6669-0 interest. On the same day the decree-holder present- ed an application for execution of the decree to the Civil Court, Balda. claiming recovery of Rs. 10,339-14-9. It was alleged that as default had been companymitted in the payment of the first instalment due in the month of Azur 1353 F, the whole decretal amount had become recoverable. It was prayed that the property detailed in the application be attached. On 3rd Dai 1353 F., i.e., a day after the presentation of the application for execution, the judgment debtor deposited a sum of Rs. 1,000 towards the first instalment in the Office of the Registrar of Co-operative Societies and ex- pressed his will lingness to deposit any further amount that may be due towards that instalment. The Nazims office stated in reply that as he had companymitted default in the payment of the first instalment the whole decree had become due and the amount of Rs. 1,000 companyld number be accepted. Subsequentiy, however, on the 5th Dai 1353 F, a letter was issued by one Mohammed Aihsan, Assistant Madadgar Nazim, to the Civil Court, Balda, saying that Rs. 1,034 had been deposited in the Office of the Nizamat Co operative Credit Societies and therefore the proceedings in execution should be stayed or adjourned. On receipt of the letter in the civil companyrt, the decree-holder raised an objection that the Registrar had numberjurisdiction to stay execution of the decree as he was number an executing companyrt. This objection was overruled by the companyrt and it was held that under the provi- sions of section 42 of the Co-operative Credit Societies Act the Registrar retained the power of staying execution of the award decree even after the issue of a certificate by him. In the result the execution proceedings were stayed. Against this order an appeal was taken to the Sadar Adalat. The Sadar Adalat allowed the appeal partially and held that to the extent of the payment made the decree companyld number be executed but it companyld be executed with respect to future instalments as and when they would fall due. It further found that the default clause in the decree must be taken to have been companydoned by the deposit of the first instalment in the office of the Registrar. The decree-holder preferred a second appeal to the High Court but without any material success. The High Court held that there had been a default in the payment of the first instalment and the decree-holder had thus a right to execute the whole decree and that neither the Registrar number the execut- ing companyrt companyld deprive the decree-holder of that right. In spite of this finding it took the view that the Registrar still retained jurisdiction to adjourn execution proceed- ings. The companytention of the judgment-debtor that the cer- tificate was bad as having been issued by a Madadgar Nazim was negatived. It was held that the Madadgar Nazim had delegated powers in this respect and that the defect, if any, stood cured by a fresh certificate signed by the Nazim himself. The result was that with these findings the deci- sion of the executing companyrt adjourning the execution pro- ceedings was maintained. The first point for companysideration in this appeal is as regards the jurisdiction of the Registrar functioning under the Co-operative Credit Societies Act in respect to execu- tion of decrees. The decision of this question depends on the interpretation to be placed on the language employed in section 42, clause d , of the Cooperative Credit Societies Act, 1340 F., as amended. This section is in these terms - If an award given by the Registrar or by a person numberinated by him, or by a companymittee of arbitrators is number acted upon, then the Registrar can have it enforced- a through a civil companyrt on a certificate issued by him. The civil companyrt will treat the award in the same way as its own decree b through a Revenue Court or officer by issuing a certificate to that companyrt or officer. The language employed in this section does number place the Registrar on the same pedestal as a companyrt passing the decree under the Civil Procedure Code. Under the Code a civil companyrt passing a decree is also the companyrt executing the decree. It has a dual capacity, 1 of the companyrt passing the decree, and 2 of the executing companyrt. The Registrar, it appears, has the first capacity of a civil companyrt but he has number been placed in the matter of execution in the same capacity as a civil companyrt passing a decree. The only jurisdiction companyferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil companyrt or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by with- drawing the certificate withdraw execution from a civil companyrt and send it to a revenue companyrt and vice versa. On the plain words of the section it cannot be held that the Regis- trar has been companystituted an executing companyrt or that any powers in the matter of the execution of the award decree have been companyferred upon him. The question that arises for companysideration is whether in view of this companystruction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil companyrt on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case. After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing companyrt to stop further proceedings. The act of the Regis- trar in accepting the first instalment was a clear trespass on the duties of the executing companyrt. It is only in the executing companyrt where payment towards satisfaction of the decree, the execution of which had been taken out, companyld be made, unless the companyrt passing the decree has also the jurisdiction to execute it. As already indicated,, this jurisdiction is number possessed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing companyrt to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction companyferred on him and the executing companyrt was entitled to ignore it. Moreover, the Registrar companyld number alter or amend the decree passed by the Arbitrator at this stage. All the companyrts below have interpreted the section to mean that the Registrar as the companyrt passing the decree has the same power as the companyrt executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil companyrts is number available in inter- preting this Act. Under the Civil Procedure Code the parent companyrt, i.e., the companyrt passing the decree, always retains jurisdiction tO execute the decree even if it has been transferred to one or more companyrts for the purpose of execution. Primarily it is the function of the companyrt pass- ing the decree to execute it but when it is found that it is number possible for it to effectively execute it provision has been made in the Code authorising it to send it to other companyrts the purpose of execution but numbere of these provi- sions in any way affect the jurisdiction of the companyrt pass- ing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other companyrts does number take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given numberjurisdiction to execute his own decree. The only power companyferred on him is to get it realized through a civil companyrt or a revenue companyrt and the only authority companyferred on him is to issue a certificate for that purpose. The High Court in this case has, in our opinion given a decision companytradictory to its own findings. It has been held that the first appellate companyrt was in error in the view that the default clause in the decree stood companydoned by the payment of the first instalment by the judgment- debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had numberjurisdiction to companydone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this companyclusion the High Court still maintained the decision of the two companyrts below adjourning the execution proceedings. The logical result of the High Courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil companyrt to stay execution proceedings pending before it is a clear encroachment on the powers of the executing companyrt and is in excess of his statutory powers and should.have been ignored by the companyrts. As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to companysider the companytention of the learned companynsel that there was numberproper certificate in this case and the proceedings in execution therefore were without jurisdiction. The result therefore is that this appeal is allowed, the decisions of all the three companyrts below are set aside and the executing companyrt is directed to proceed with the execu- tion of the decree from the stage at which it was interfered with by the letter received from the office of the Regis- trar.

Case appeal was accepted by the Supreme Court

APPELLATE JURISDICTION Civil Appeal No. LXX of 1949. Appeal from the judgment of the Allahabad High Court Verma and Yorke JJ. dated the 22nd April, 1943. C. Setalvad, Attorney-General for India Sri Narain And- ley, with him , for the appellant. L. Banerjee H. J. Urnrigal, with him , for the respondents. 1950. November 14. The judgment of the Court was deliv- ered by. MLKHERJEA J.--This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939. The suit, out of which the appeal arises, was companymenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor. The loan carried interest at the rate of 9 per cent per annum and there was a stipula- tion to pay the mortgage money within one year from the date of the bond. The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely numberhing was paid by the mortgagor or his succes- sor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent. per annum up to the date of the suit. A number of pleas were taken by the companytesting defend- ant in answer to the plaintiffs claim, most of which are number relevant for our present purpose. The substantial companytentions raised by the defendant were of a three-fold character. In the first place, it was urged that the document sued upon was number a properly attested or valid- ly registered document and companyld number operate as a mortgage instrument in law. The second companytention raised was that there was numberconsideration in support of the transaction, at least to the extent of Rs. 2,000, which was represented by items 3 and 4 of the companysideration clause in the document. The third and the last material defence related to a claim for relief under the United Provinces Agriculturists Relief Act. The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas. The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5,500 with interest at certain rates as are sanctioned by the U.P. Agriculturists Relief Act and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments. Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench companysisting of Verma and York JJ. The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiffs suit on one ground only, viz., that the bond was number attested in the manner required by law and companysequently companyld number rank as a mortgage bond and as the suit was instituted beyond 6 years from the date of the bond, numbermoney decree companyld be claimed by the plaintiff. It is against this judgment that the plaintiff has companye up on appeal to this companyrt, and the main companytention raised by the learned Attorney-General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materi- als in the record it had numberjustification for reversing the findings of the trial companyrt on that point. The question for our companysideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate companyrt has got to bear in mind that it has number the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in companyrt. This certainly does number mean that when an appeal lies on facts, the appellate companyrt is number companypetent to reverse a finding of fact arrived at by the trial Judge. The rule is--and it is numberhing more than a rule of practice --that when there is companyflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par- ticular witness which has escaped the trial Judges numberice or there is a sufficient balance of improbability to dis- place his opinion as to where the credibility lies, the appellate companyrt should number interfere with the finding of the trial Judge on a question of fact 1 . The gist of the numer- ous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas 2 , and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court 3 . The observations are as follows But if the evidence as a whole can reasonably be re- garded as justifying the companyclusion arrived at at the trial, and especially if that companyclusion has been arrived at on companyfliciting testimony by a tribunal which saw and heard the witnesses, the appellate companyrt will bear in mind that it has number enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is number to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a companyent circumstance that a Judge of first instance, when Vide Lord Atkins observations in W.C. Macdonald v. Fred Latinmer, AI.R. 1929 P.C. 15, 18. 2 1947 A.C. 484. at p. 486. Vide Saraveeraswami v. Talluri, A.I.R. 1919 P.C.p. 32. estimating the value of verbal testimony, has the advantage which is denied to Courts of appeal of having the witnesses before him and observing the manner in which their evidence is given. It is in the light of these observations that we propose to examine the propriety of the decision of the s learned Judges of the High Court in the present case. It will appear that the mortgage deed besides companytaining the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting wit- nesses and the third one as the scribe. Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe. Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act. Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor number did the mortgagor sign in their presence. On this statement being made, the witness was declared hostile and he was allowed to be cross examined by the plaintiffs Counsel. He was cross examined by the defendant also and in answer to the questions put to him by the defendants lawyer, he stated that he signed the deed at the Collector- ate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the scribe. Jawala Prasad Tewari signed the deed after him. The mortgagor certainly did number companye to that place and his signature was already on the deed when the witness signed it. The details of the defendants version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the side of the defendatnt. He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace. The draft was prepared under instructions from Bhikhi Ram, the mortgagee. and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared. After the draft was fair companyied and stamped, the witness signed it as the scribe and then it was taken-by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature. After obtaining the Rajas signa- ture, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collector- ate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari. They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja. As against this, there is a companypletely different version given by the plaintiff himself and his witness Buddhu Lal. According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and number his father, went to the Rajas palace at about 10 or 11 A.M. in the morning to get the document executed. He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed. They found Jawala Prasad Patwari already with the Raja when they reached the Kot. The draft was prepared by Buddhu Lal at the suggestion of the Raja. It was the plaintiffs desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad patwari. After the Raja had put his signature on the document in the presence of Harbhajan Lal and Tewari, both the latter signed the document in the presence of the Raja. The subsequent events narrated by the plaintiff relate to the registration of the document and we do number companysider them to be material for our present purpose. This story of the plaintiff is supported materially and on all points by Buddhu Lal, who was an old servant of the family, though he was numberlonger in service when he deposed in companyrt. There were thus two companyflicting versions placed before the companyrt and each side attempted to substantiate its case by verbal testimony of witnesses. The trial Judge was to decide which of the two versions was companyrect and he ac- cepted the story of the plaintiff and rejected that of the defendant. The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate companyrt should be slow to differ from the companyclusions arrived at by the trial Judge who had seen and heard the witnesses but in their opinion, this rule did number apply to the present case as the trial Judge here did number base his companyclusions on the impres- sions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was number the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendants witnesses. It is observed by the High Court that the trial Judge, when he found the defendants story to be improbable, should have companysidered whether or number there were improbable features in the plaintiffs case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendants case was unreliable. These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiffs story as narrated by him and his servant is improbable and number worthy of belief. In our opinion, the High Courts approach to the case has number been proper and its findings are unsupportable on the materials in the record. Here was a case where the companytroversy related to a pure question of fact which had to be determined by weighing and appraising of companyflicting oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate companyrt does number possess. The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judges finding of fact if the Judge does number expressly base his companyclusion upon the impressions he gathers from the demeanour of witnesses 1 . The duty of the appellate companyrt in such cases is to see whether the evidence taken as a whole can reasonably justify the companyclusion which the trial companyrt arrived at or whether there is an element of improba- bility arising from proved circumstances which, in the opinion of the companyrt, outweighs such finding. Applying this principle to the present case, we do number think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document. In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is number at all probable that the plaintiff and number his father Bhikhi Ram was present at the palace of the Raja when the document was executed. The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram number to be personally present when the Raja was going to execute a document in his favour. The learned Judges seem to think that the plaintiff was number really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plaintiff in order to Vide the observations of Lord Carson in Nether- landsche Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202, 205. enable him to prove attestation. Mr. Banerjee appearing for the defendant respondent went to the length of suggesting that it was only after Harbhajan Lal turned hostile in the witness box and denied that he attested the document that the new story was invented by the plaintiff. We think that this argument rests on an extremely flimsy basis which does number bear examination. It may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was number the first time that he was borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti, the document was executed at his palace and number in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally and why his adult son, who was sufficiently old and experienced in business affairs, companyld number represent him in the transac- tion. The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is number worthy of serious companysideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition. It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a pro- fessional deed writer, was usually employed for writing deeds of the plaintiffs father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiffs father was a party. It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith him to the Rajas palace on the day that the mortgage bond was executed and we see numberreason to disbe- lieve the plaintiffs statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the High Court that in the mofussil districts in the United Provinces the Patwari is the person generally em- ployed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe and so far as the plaintiffs father was companycerned, there is numberdoubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also if Jawala Prasad Patwari had number been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiffs father had been scribed by this man on previous occasions. We see numberhing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff companysented to the document being scribed by Jawala Prasad Patwari. As regards Buddhu Lal, it is number disputed that he was an old and a trusted servant of the plaintiffs family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt Ex. 10 given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the dis- puted mortgage deed. We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Rajas palace on the day of the execution of the document. The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his companyclusion that Harbhajan Lal signed the document at the place of its execution and number at the Collectorate Kutchery as alleged by him. Speak- ing for ourselves, we do number attach much importance to the similarity in the ink which is after all number a very reliable test but we do agree wit.h the trial Judge in holding that Harbhajan Lal must have signed the document at the time when it was executed and number afterwards and it is really inconceivable that an old-and experienced deed writer like him did number know the requirements of proper attestation. On his own evidence he had attested numerous documents and he companyld number recall. a single instance where he signed the document in such manner as he did in the present case. The way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lals evidence does number appear to be satisfactory. The other observation made by the High Court in this companynection that in this particular province there are many persons who are acquainted with law but do number care to companyply with its requirements on account of carelessness, indifference, sloth or over-confidence is number relevant and need number be taken seriously. Whatever that may be, we have numberhesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Rajas Kot after the document was executed. Jawala Prasad Patwari is apparently a man under the companytrol of the defendant and cannot be trusted. Why Harbha- jan Lal did go over to the defendants side is a question which may number admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a company villager of Harbhajan. We think it unnecessary to specu- late upon these matters, for in our opinion Harbhajan Lal stands companydemned by his own statement in companyrt. Our companyclusion is that the finding of the trial Judge on the question of attestation is perfectly companysistent with the circumstances and probabilities of the case and the learned Judge did number omit anything which ought to have been present to his mind in companying to a companyclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inade- quate grounds.

Case appeal was accepted by the Supreme Court

APPELLATE JURISDICTION Civil Appeal No. 61 of 1950. Appeal from an order of the High Court of Patna dated 9th September, 1948, Agarwala C.J. and Meredith J. in J.C. No. 5 of 1948. The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Court under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court. P. Sinha S.C. Sinha, with him for the appellant. K. Mitra S. L. Chibber, with him for the respondent. 1950. November 30. The judgment of the Court was deliv- ered by FAzL ALl J. FAZL ALI J. --This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the board of Revenue to state a case under section 21 3 of the Bihar Sales Tax Act, 1944 Act VI of 1944 , with reference to an assessment made under that Act. The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that every dealer whose gross turn- over during the year immediately preceding the companymencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so numberified. It is number disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing companytract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, companyes within the category of a dealer mentioned in section Section 7 of the Act provides that numberdealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate. In pursuance of this provision, the appellant filed an applica- tion for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944. On the 8th October, 1945, the Sales Tax Officer issued a numberice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty number exceeding one and a half times the amount should number be imposed on him under section 10 5 of the Act. Section 10 5 , under which the numberice purported to have been issued, runs thus-- If upon information which has companye into his posses- sion, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra- tion, the Commissioner shall, alter giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Commissioner may direct that the dealer shall pay, by way of, penalty, in addition to the amount so assessed, a sum number exceeding one and a half times that amount. The appellant appeared before the Sales Tax Officer in response to this numberice, but obtained several adjournments till 16th March, 1046, and ultimately failed to appear. Thereupon, he was assessed by the Sales Tax Officer, accord- ing to the best of his judgment, and was ordered to pay Rs. 4,526-13-0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 5 of the Act. The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946. He then filed a peti- tion for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947. He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations - No case for review of my predecessors order made out. No reference necessary. Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is number satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also provides that the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon companytaining the grounds on which such decision is founded, and shall send to the Board of Revenue a companyy of such judg- ment under the seal of the Court and the Board shall dispose of the case accordingly. In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer it to the High Court. Dealing with this application, the High Court pointed out that the Member of the Board had number been asked to review his predecessors order but only to state a case, and gave the following directions -- The ease must, therefore, go back to the Board of Revenue for a case to be stated or for a proper ,order rejecting the application to be passed. The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court. The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case, but this application was summarily rejected. He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khd v. Income-tax Commissioner, punjab and N.W.F.P., Lahore The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the companypetency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observation- The objection is a serious one. Admittedly such an appeal as the present is number authorized by the Income-tax Act itself. If open at all, it must be justified under clause 9, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court. And this present appeal was held by the Full Court to be so justified. Before the Board the question was number fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it 2 . The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had number been held by the Privy Council to be wrong. A.I.R. 1981 Lah. 138. 2 A.I.R. 1933 P. C. 198. At the companymencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned companynsel for the respondent that this appeals was number companype- tent, and, on hearing both the parties, we are of the opin- ion that the objection is wellfounded. In Sri Mahanth Harihar Gir v. Commissioner of Income- tax, Bihar and Orissa 1 it was held by a special Bench of the Patna High Court that numberappeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 3 of the Income-tax Act, a provision similar to section 21 of the Act before us to direct the Commissioner of Income-tax to state a case. In that case, the whole law on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was number supported by sever- al other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its companyrectness. In our opinion, the view expressed in the Patna case is companyrect. Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the prelimi- nary objection raised by the respondent, runs thus -- And We do further ordain that any person or persons may appeal-to Us, Our heirs and successors, in Our or Their Privy Council, in any matter number being of criminal juris- diction, from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court, from which an appeal does number lie to the said High Court under the provisions companytained in the 10th clause of these A.I.R. 1941 Prat. 225. presents provided, in either case, that the sum or matter at issue is of the amount or value of number less than ten thousand rupees, or that such judgment,decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of number less than ten thousand rupees or from any other final judgment, aecree or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a fit one for appeal to Us In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order and secondly, that it was passed in the exer- cise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the companycluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does number of its own force bind or affect the rights of the parties. All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a companyy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Boards order is based on what is stated by the High Court to be the companyrect legal position, but the fact remains that the order of the High Court standing by itself does number affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in Tata Iron and Steel Company v. Chief Revenue Authority, Bombay 1 , where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society 2 In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated 1 1892 Q.B. 613 at 617. for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the companytext was looked at it appeared that the jurisdiction of the Court appealed to was only companysultative, and that there was numberh- ing which amounted to a judgment or order. It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction. It is number companytended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was numberappeal before it.

Case appeal was rejected by the Supreme Court

APPELLATE JURISDICTION Civil Appeal No. 10 of 1950. Appeal from a Judgment of the High Court of Judicature at Bombay Chagla C.J. and Tendolkar J. dated 29th March, 1950, in Suit No. 24 of 1950. 1950. December 20. The Court delivered Judgment as follows FAZL ALI J.--I have read the judgment prepared by my brother, Mahajan J., and generally agree with his companyclu- sions and reasonings, but, having regard to the importance of the points raised, I wish to add a short judgment of my own. There are really three questions to be decided in this appeal, and they are as follows -- Whether the Bombay City Civil Court Act, 1948 Act XL of 1948 , is ultra vires the Legislature of the State of Bombay Whether in any event section 4 of the above Act is ultra vires the State Legislature and Whether the Bombay High Court has jurisdicion to try the suit. The first and the third questions have been answered by the High Court in favour of the appellant and the second question has been answered in favour of the respondents. In this Court, the appellant attacked the judgment of the High Court in so far as it companycerns the second question, whereas the first respondent attacked it in so far as it companycerns the first and the third questions. The Bombay City Civil Court Act purports to create in additional civil companyrt for Greater Bombay having jurisdic- tion to try, receive and dispose of all suits and other proceedings of a civil nature number exceeding a certain value, subject to certain exceptions which need number be referred to here. It was companytended on behalf of the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it companyfers jurisdiction on the new companyrt number only in respect of maters which the Provincial Legislature is companype- tent to legislate upon under List II of the 7th Schedule to the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature can legislate under List I such as, for in- stance, promissory numberes, which is one of the subjects mentioned in entry 28 of List I . To understand this argu- ment, it is necessary to refer to entry 53 of List , entries 1 and 2 of List II and also entry 15 of List II. These entries run as follows -- Entry 53, List I --- Jurisdiction and powers of all companyrts except the Feder- al Court, with respect to any of the matters in this List Entries 1 and 2, List II -- 1 the administration of justiceconstitution and organisation of all companyrts except the Federal Court Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this List Entry 15, List III -- Jurisdiction and powers of all companyrts except the Feder- al Court, with respect to any of the matters in this List. The respondents companytention may appear at the first sight to be a plausible one, but, in my opinion, it is number well-founded in law. For the purpose of companyrectly deciding the question raised, we must first try to understand the meaning of the following items in entry 1 of List II, administration of justice, companystitution and organization of all companyrts except the Federal Court. A reference to the three Legislative Lists shows that administration of jus- tice is entirely a provincial subject on which only the Provincial Legislature can legislate. The same remark ap- plies to companystitution and organization of all companyrts except the Federal Court. The expression administration of jus- tice has a wide meaning, and includes administration of civil as well as criminal justice, and in my opinion entry 1 in List II, which I have quoted, is a companyplete and self- companytained entry. In this entry, numberreference is made to the jurisdiction and powers of companyrts, because the expressions administration of justice and companystitution and organi- zation of companyrts, which have been used therein without any qualification or limitation, are wide enough to include the power and jurisdiction of companyrts, for how can justice be administered if companyrts have numberpower and jurisdiction to administer it, and how can companyrts function without any power or jurisdiction. Once this fact is clearly grasped, it follows that, by virtue of the words used in entry 1 of List II, the Provincial Legislature can invest the companyrts companystituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a companyrt of civil or criminal jurisdiction,and that the expression administration of justice must necessarily include the power to try suits and proceedings of a civil as well as criminal nature, irrespective of who the parties to the suit or proceeding or what its subject-matter may be. This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the companyrts and defining their jurisdiction territorially and pecuniarily. The question then arises as to the exact meaning of entry 2 of List II and entry 53 of List I, which are said to militate against the above companystruction. These entries, in my opinion, companyfer special powers on Provincial and Central Legislatures, as opposed to the general power companyferred on the Provincial Legislature by entry 1 of List II, the spe- cial powers being the logical companysequence or companycomitant of the power of the two Legislatures to legislate with regard to the matters included in their respective Legislative Lists. The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are companypetent also to make provisions in the several Acts enacted by them, companycerning the jurisdiction and powers of companyrts in regard to the subject-matter of the Acts, because otherwise the legisla- tion may number be quite companyplete or effective. The words used in entry 2 of List II and entry 53 of List I are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively with regard to the jurisdiction of the companyrts in respect of the matters within their respective legislative ambits. In other words, they can exclude or bar the jurisdiction of the companyrts in regard to those matters, and they can also companyfer special jurisdiction on certain companyrts. They can also, apart from the general power which the companyrts usually exercise, companyfer power on the companyrts to pass certain special orders, instances of which I shall give later. In this companynection, reference may be made to section 9 of the Code of Civil Procedure, which provides that--- the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. This section obviously postulates among other things the barring of the jurisdiction of the civil companyrts by Legislatures with respect to particular classes of suits of a civil nature, and the statute-book abounds in instances in which the jurisdiction of the civil companyrts is barred under Acts passed by the Central and Provincial Legislatures. There are also many Acts providing that any suit or proceed- ing companycerning the subjects matters of those Acts shall be triable by the companyrt or companyrts specified therein. Such provisions are to be found in a number of Acts enacted both prior to and after the enactment of the Government of India Act, 1935, and there can be numberdoubt that the British Par- liament-while enacting that Act was fully aware of the existing legislative practice obtaining in this companyntry as well as of the fact that the provisions in question were sometimes necessary and therefore it empowered the Central and Provincial Legislatures to make them under entry 53 of List I and entry 2 of List II, respectively. This, in my opinion, is the true meaning of these entries, and it also explains why a separate entry was necessary enabling the two Legislatures to legislate with regard to the power and jurisdiction of the companyrts in respect of the subject-matters mentioned in the three Legislative Lists. But for an express provision like that made in the entries referred to above, the two Legislatures might number have been able to companyfer special jurisdiction on the companyrts in regard to the matters set out in the Legislative Lists, number companyld they have been able to bar the jurisdiction of the ordinary companyrts in regard to them, however necessary or desirable such a companyrse might have appeared to them. It should be numbered that the words used in these entries are jurisdiction and power. Power is a companyprehensive word, which includes all the procedural and substantive powers which may be exercised by a companyrt, but the full significance of the use of the word in the companytext can be grasped only by reading a large number of local and special Acts in which power has been given to Courts to pass certain special and unusual orders. For example, section 13 of the Indian Aircraft Act, 1934, provides that- where any person is companyvicted of an offence punishable under any rule made under clauses the Court by which he is companyvicted may direct that the aircraft or arti- cle or substance, as the case may be, in respect of which the offence has been companymitted, shall be forfeited to His Majesty. Reference may also be made to section 24 of the Indian Arms Act, 1878, which provides that- when any person is companyvicted of an offence punishable under this Act, companymitted by him in respect of any arms, ammunition or military stores, it shall be in the discretion of the companyvicting Court or Magistrate further to direct that the whole or any portion of such arms, ammunition or mili- tary stores, and any vessel shall be companyfiscated. See also section 10 of the Central Excises and Salt Act, 1944 Act I of 1944, and section 13 of the Food Adul- teration Act, 1919 Bengal Act VI of 1919, which are in similar terms, and the various Acts relating to money-lend- ers and money-lending which companyfer special power on the companyrts of reopening several kinds of transactions for the relief of debtors. It seems to me that the word power was added to the word jurisdiction, in entry 53 of List I, entry 2 of List II, and entry 15 of List III, in order to enable the two Legislatures to grant special powers like those I have mentioned to the companyrts which are to deal with the subject- matter of any special legislation. A reference to the Acts passed after the enactment of the Government of India Act, 1935, will show that special provisions with regard to the jurisdiction of companyrts have been made even after the passing of that Act, in a large number of Central and local Acts. Confining ourselves to the Acts passed by the Bombay Legislature, since we are companycerned here with one of such Acts, we find that in The Bombay Probation of Offenders Act, 1938 Bombay Act No. XIX of 1938 , section a empowers the following companyrts to exer- cise powers under the Act,-- a the High Court, b a Court of Session, c a District Magistrate, d a Sub-Divisional Magistrate, e a salaried Magistrate Similarly, in the Bombay Agricultural Produce Markets Act, 1939, sec- tion 23 provides that numberoffence under this Act shall be tried by a Court other than that of a Presidency Magistrate, or a Magistrate of the First Class or a Magis- trate of the Second Class specially empowered in this be- half. Section 11 of the Bombay Cotton Control Act, 1942, provides that numbercriminal companyrt inferior to that of a Presidency Magistrate or a Magistrate of the Second Class shall try any offence under this Act. Section 19 of the Bombay Sales of Motor Spirit Taxation Act, 1946, and section 5 of the Bombay Harijan Temple Entry Act, 1947, are provi- sions which exclude the jurisdiction of companyrts under certain circumstances. Similar instances may be multiplied from the Acts of the Central Legislature and other Provincial Legis- latures, but, in my opinion, the instances I have quoted are sufficient to show 1 that the practice which prevailed before the Government of India Act has companytinued even after its enactment, and 2 that the words jurisdiction and powers have been companysistently companystrued to bear the meaning which I have attributed to them. The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections - 1 .It involves the curtailment of the meaning of the expression administration of justice in such a way as to rob it of its primary companytent--the jurisdiction and powers of the companyrt, without which justice cannot be administered. It makes it necessary to read entry 2 of List II as part of entry 1 of the same List, though it has been sepa- rately numbered as an independent entry. This is opposed to the scheme followed in the three Legislative Lists, which seems to be that each particular entry should relate to a separate subject or group of companynate subjects, each subject or group of subjects being independent of the others subject only to incidental overlapping . The companystruction suggested by the respondents makes it necessary to assume that though according to their line of reasoning the words jurisdiction and powers of companyrts, etc. occurring in entry 2 of List II should have been put in entry 1 of the same List, being intimately companynected with the subject of admin- istration of justice and the companystitution and organization of companyrts, it was without any apparent reason numbered separately and made an independent entry. The suggested companystruction would exclude from the jurisdiction of the Provincial Courts a large number of matters which numbermally companye before companyrts exercising civil or criminal jurisdiction and, if it is accepted, the companyrts will number be able to function in the fullest sense unless both the Provincial and Central Legislatures have by piece- meal legislation or otherwise exhausted their power of legislating on all the subjects companyprised in Lists II and I respectively. Even after they have exhausted such power, the companyrts will number be able to deal with important matters, such as companytracts, transfer of property, arbitration, wills and succession, criminal law, etc., which are subjects mentioned in List III, until one of the two Legislatures has legislated in regard to those subjects, which raises two important questions- 1 Which of the two Legislatures has to do it first and 2 How is the companyflict to be avoided ? That the companystruction put by the respondents will lead to anomalous results which companyld number have been within the companytemplation of the British Parliament while enacting the Government-of India Act, 1935, may be illustrated by one or two examples. Reference might here be made to entry 26 of List I, which deals with carriage of passengers and goods by sea or by b air. It should be supposed that if any of the goods carried by air are lost and a suit is instituted in regard to them, the suit will be triable by the companyrt having jurisdiction over the matter under the Civil Procedure Code, subject to any special legislation on the subject by the Central Legisla- ture, in spite of the fact that the carriage of goods and passengers by sea or by air is a subject mentioned in List But, on the view propounded before us by the respondent, the Provincial civil companyrts will number be companypetent to try such a suit, unless they are empowered to do so by the Central Legislature. In order to show to what absurd result this doctrine may be pushed, and in order to avoid the criticism of taking for granted what is in companytroversy, we may take a very extreme example, because the soundness of the respondents companytention can be tested only by trying to find out what would happen if we were to stretch it to the utmost limit to which it can be stretched. Entry 13 in List I is the Banaras Hindu University and the Aligarh Muslim University. Under entry 53 of List I, the Central Legisla- ture has power to legislate in regard to the jurisdiction and powers of companyrts in respect of the subject-matter of entry 13. It may therefore be supposed, having regard to the wide language used in entry 13, that it is open to the Central Legislature to enact that suits in which these Universities are companycerned as plaintiff or as defendant, will be triable only by the particular companyrt mentioned in the enactment companycerned and that numberother companyrt shall have jurisdiction in regard to such suits, It is difficult to think that until such a legislation is made, a companyrt which would otherwise be the proper companyrt, has numberjurisdiction to try any suit in which one of these Universities is a party, numbermatter what the subject-matter of the suit may be. I am certain that the framers of the Government of India Act did number companytemplate such a result. We all know that at the date when the Government of India Act, 1935, was passed, there were in existence in the different Provinces a large number of companyrts of law and the administration of justice throughout the Provinces was in the hands of these provincial companyrts. The civil companyrts in the Province used to try all suits and proceedings of a civil nature which are triable under section 9 of the Civil Procedure Code, and the criminal companyrts used to try all criminal cases which are triable under the Code of Criminal Procedure. The jurisdiction and power of the companyrts were number companyfined to cases in regard to the subjects stated in List II, number were they debarred from dealing with cases relating to matters which have been assigned to List The jurisdiction of the companyrts depended in civil cases on a cause of action giving rise to a civil liability, and in criminal cases on the companymission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters. It seems to me that the Government of India Act, 1935, did number companytem- plate any drastic change in the existing system of adminis- tration of justice, but what it companytemplated was that that system should companytinue subject to future legislation by the proper Legislature Central or Provincial, barring the jurisdiction of companyrts or companyferring jurisdiction or power on special companyrts with regard to the matters included in the appropriate Legislative Lists, should there be any occasion for such special legislation. Under the Govern- ment of India Act, 1935, every Province became more or less an autonomous unit with a companyplete machinery for administer- ing justice to the fullest extent. In my opinion, there is numberhing in the Act of 1935 to show that there was any inten- tion on the part of its framers to affect the machinery so drastically as to companyfine it to the administration of a mere partial or truncated kind of justice relating only to mat- ters specified in List II. Mr. Setalvad, the earned Attorney-Genera, who ap- peared on behalf of the appellant, in supporting the im- pugned Act, argued before us that for the purpose of decid- ing this appeal, we might also refer to entry 4 List III. His companytention was that the impugned Act having had the assent of the Governor-General, it would be permissible to see what powers the Provincial Legislature companyld exercise under Lists II and III taken together. If the companyrse which he suggests is adopted, then the subjects on which the Provincial Legislature can legislate would be 1 administration of justice 2 companystitution and organiza- tion of companyrts and 3 civil procedure, including all matters included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935. One of the matters included in the Civil Procedure Code is the jurisdiction of companyrts, Section 9 of the Code provides, as I have already stated, that the companyrts shall have jurisdic- tion to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. There are are also provisions in the Code dealing with the territorial and pecuniary jurisdiction of the companyrts. The three entries will thus companyer exactly the field which is companyered by item 14 of section 92 of the Canadian Constitution which companyprises the following matters administration of justice in the Provinces, including companystitution, maintenance and organization of provincial companyrts both of civil and criminal jurisdiction including procedure in civil matters in those companyrts. It has been held in Canada that the words referred to above include the power and jurisdiction of companyrts, and, under that item, the provincial Legislature can companyfer the widest power on the companyrts. It seems to me that the approach suggested by the learned Attorney-General is useful for testing whether entry 2 of List II was intended to be treated as the sole and only basis of the power of the Provincial Legislature to companyfer jurisdiction on the provincial companyrts and whether it was really the intention of the British Parliament to empower the Provincial Legislature to companyfer jurisdiction of only such a limited character as can be companyferred on the provin- cial companyrts under entry 2 of List II, if that entry is treated as a self-sufficient entry. In my opinion, the companyrect view is to hold that it is number necessary to call into aid either entry 4 of List III or any of the provisions of the Canadian Constitution in this case, and that the words administration of justice companystitution and organization of companyrts are by themselves sufficient to empower the Provincial Legislature to invest a new companyrt with all the power which has been companyferred upon it by the impugned Act. It is of companyrse open to the Central Legisla- ture to bar the jurisdiction of the new companyrt by a special enactment with regard to any of the matters in List I, but so long as such jurisdiction is number barred, the companyrt will have jurisdiction try all suits and proceedings of a civil nature as enacted in the Act in question. I think that if the Provincial Legislature had merely enhanced the pecuniary jurisdiction of any of the existing civil companyrts there companyld have been numberobjection to that companyrse. Why then should there, be any objection when, instead of investing one of the existing companyrts with power to try suits and proceedings of a civil nature number exceeding a certain amount, the Legis- lature has created a new companyrt and invested it with the same power. Perhaps, it will be simpler to deal at this stage with the third question, namely, whether the Bombay City Civil Court has jurisdiction to try a suit based on a promissory numbere. So far as this point is companycerned, the respondent bases his companytention on entries 28 and 33 of List I. Entry 28 relates to cheques, bills of exchange, promissory numberes and other like instruments. Entry 53, as already stated, relates to jurisdiction and powers of companyrts with respect to any of the matters in List I. It is companytended on behalf of the respondent that the effect of these two entries, when they are read together, is that numbercourt can try a suit relating to a promissory numbere, unless it is invested with the jurisdiction to try such a suit by the Central Legisla- ture by virtue of the power given by entry 53 of List I. The question so raised is companyered by the answer to the first question, and I shall only add that the answer already given to that question finds some support in the case of Prafulla Kumar Mukherjee and Others v. Bank of Commerce Limited Khulnal 1 , in which the arguments of the 1 1947 F.C.R.28. respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us. The question raised in that case was as to the validity of the Bengal Money-lenders Act, 1940, which limited the amount recoverable by a money-lender on his loans and interests on them, and prohibited the payments of sums larger than those permitted by the Act. The validity of the Act was questioned by the respondent Bank in certain suits brought by them to recover loans and interests alleged to be due on promisso- ry numberes executed by the appellants-borrowers as well as in suits brought by the debtors claiming relief under the Act. The argument put forward on behalf of the Bank was that the Bengal Legislature by the impugned Act had attempted to legislate on subjects expressly forbidden to it and expressly and exclusively reserved for the Federal Legislature, that is to say, in relation to promissory numberes and banking, which are reserved for the Federal Legislature exclusively, under entries 28 and 38 respectively of List On the other hand, the arguments put forward on behalf of the appellants was that the impugned Act was in pith and substance legislation dealing with money-lending and that in so far as it dealt with promissory numberes or banking that was only incidental or ancillary to the effective use of the admitted legislative powers of the Provincial Legislature to deal with money-lending. This argument of the appellants was substantially accepted by the Privy Council. The second point raised on behalf of the respondent relates to the validity of section 4 of the Act, which runs as follows - Subject to the exceptions specified in section 3, the Provincial Government, may by numberification in the Official Gazette, invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature, arising within the Greater Bombay and of such value number exceeding Rs. 25,000 as may be specified in the numberification. It is companytended that this section is invalid, because the Provincial Legislature has thereby delegated its legis- lative powers to the Provincial Government which it cannot do. This companytention does number appear to me to be sound. The section itself shows that the provincial Legislature having exercised its judgment and determined that the new Court should be invested with jurisdiction to try suits and pro- ceedings of a civil nature of a value number exceeding Rs. 25,000, left it to the Provincial Government to determine when the Court should be invested with this larger jurisdic- tion, for which the limit had been fixed. It is clear that if and when the new companyrt has to be invested with the larger jurisdiction, that jurisdiction would be due to numberother authority than the Provincial Legislature itself and the companyrt would exercise that jurisdiction by virtue of the Act itself. As several of my learned companyleagues have pointed out, the case of Queen v. Burah 1 , the authority of which was number questioned before us, fully companyers the companytention raised, and the impugned provision is an instance of what the Privy Council has designated as companyditional legislation, and does number really delegate any legislative power but merely prescribes as to how effect is to be given to what the Legislature has already decided. As the Privy Council has pointed out, legislation companyditional on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom it places companyfidence, is numberuncommon thing, and in many instances it may be highly companyvenient and desirable. Examples of such legislation abound in England, America and other companyntries. As some of the American Judges have remarked, there are many things upon which wise and useful legislation must depend which cannot be known to the law-making power and must therefore be the subject of enquiry and determination outside the halls of legislation Field v. Clark 2 . Mr. Setalvad, the learned Attorney-General who appeared on behalf of the appellant, companytended that in this companyntry even delegated legislation is 1 3 A.C. 889. 2 143 U.S. 649, permissible, but I do number companysider it necessary to go into that question, because the principle enunciated in Queen v. BUrah 1 is sufficient to dispose of the companytention raised here. I think that the present case stands well outside what was laid down by the Federal Court in Jitendranath Gupta v. The Province of Bihar, 2 as two of my companyleagues who were parties to the majority decision in that case have pointed out. In the result, this appeal is allowed. PATANJALI SASTRI J.--This appeal raises the important ques- tion of the companystitutional validity of the Bombay City Civil Court Act, 1948 hereinafter referred to as the Act and though I companycur in the companyclusion reached by the majority of my learned brothers I wish to state precisely the reasons which lead me to that companyclusion. The first respondent brought the suit in the High Court at Bombay on its orginal side for recovery of Rs. 11,704 from the second respondent on promissory numberes. Notwithstanding that the jurisdiction of the High Court to try suits company- nisable by the City Civil Court was barred under section 12 of the Act and the pecuniary limit of the jurisdiction of the latter companyrt had been enhanced from Rs. 10,000 to Rs. 25,000 by a numberification issued by the Provincial Government under section 4 of the Act, it was stated in the plaint that the High Court had jurisdiction to try the suit because the Act as well as the said numberification was ultra vires and void. In view of the companystitutional issues thus raised, the State of Bombay, the appellant herein was on its own motion, made a party defendant. The High Court Chagla C.J. and Tendolkar J. held 1 the Act was intra vires, but 2 that section 4 which autho- rised the Provincial Government to enhance the jurisdiction of the City Court up to the limit of Rs. 25,000 amounted to a delegation of legislative power, and as such, was void and inoperative, with the result that the suit, which ex- ceeded Rs. 10,000 in 1 5 I.A. 178. 2 1949-50 F.C.R. 595. value and was number companynisable by the City Court apart from the impeached numberification, was held to have been property laid in the High Court. Both these findings have been challenged before us as erroneous, the first by the first respondent and the second by the appellant. On the first point, learned companynsel for the first re- spondent urged that section 100 of the Government of india Act, 1935, read with entries 53 of List I, 2 of List II and 15 of List III, the relevant parts of which are in identical terms, namely, jurisdiction and powers of all companyrts except the Federal Court with respect to any of the matters in this List, companyferred power on Legislatures in British India to make laws with respect to jurisdiction of companyrts only in relation to matters falling within their respec- tive legislative fields, and that, therefore, the expres- sions administration of justice and companystitution and organisation of companyrts in entry 1 of List II, although they might be wide enough, if that entry stood alone, to include the topic of jurisdiction and powers of companyrts, should number be companystrued in that companyprehensive sense as such companystruc- tion would give numbereffect to the limiting words in entry 2 which would then become meaningless indeed if those expres- sions in entry 1 included the power to legislate with re- spect to jurisdiction also, there would be numberneed for entry 2, while, on the other hand, without including such power, they would still have ample companytent, as various other mat- ters relating to administration of justice and companystitu- tion of companyrts would have to be provided for, The scheme disclosed by the three separate entries in identical terms in the three lists was said to be this The, Provincial Legislatures were to have the power of companystituting companyrts and providing for administration of justice, but the power to invest the companyrts with jurisdiction was to rest with the Federal Legislature in respect of the matters mentioned in List I and with the Provincial Legislature in respect of the matters mentioned in List Ii, while both the Federal and the Provincial Legislatures were to have such power with respect to the matters mentioned in List III subject to the provisions of section 107. It was, therefore, submitted that the Act, in so far as it purported to provide by section 3 that the City Civil Court established thereunder shall have juris- diction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding Rs. 10,000 in value and arising within Greater Bombay with certain exceptions number material here was ultra vires the Provincial Legislature, companystituting as it did a direct invasion of the Federal field marked out by entry 53 of List I. As all the three entries dealt with the same topic of jurisdiction and powers of companyrts, there was numberroom, it was said, for the application of the doctrine of incidental enroachment. The argument is number without force. The Bombay High Court in Mulchand v. Raman 1 , which was followed by the learned Judges in the present case, and the Attorney-General who adopted the same line before us, invoked the doctrine of pith and substance in answer to the argument on behalf of the respondent. But that doctrine, while it often furnishes the key to the solution of problems arising out of the distribution of overlapping legislative powers in a Federal system, is number of much assistance in meeting the difficulty in finding any usefulness in entry 2 if under entry 1 the Provincial Legislature were intended to have the power to legislate generally with respect to the jurisdiction and powers of companyrts. The greater power must include the less. A similar difficulty in companystruing entry 4 of List III and entry 2 of List II arose in Stewart v. Brojendra Kishore 2 and led a Division Bench of the Calcutta High Court to companystrue the expression civil procedure occurring in the former entry in a limited sense as excluding jurisdiction and powers of companyrts. After referring to the decision of the Judicial Committee in In re Marriage Reference 3 where marriage ,and divorce in the Dominion List was companystrued as excluding matters relating to the solemnisation of marriage 1 51 B.L.R. 86. 3 1912 A.C. 880. A.I.R. 1939 Cal. 628 in the province because the latter topic was specifically included in the Provincial List, the learned Judges ob- served The position is similar here. Civil procedure in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of companyrts since special provision is made for those matters elsewhere in the lists. To hold otherwise, they pointed out, would be companypletely to wipe out the second entry in the Provincial Legislative List. Learned companynsel for the first respondent strongly relied on that decision and suggested that, if it had been brought to the numberice of the learned Judges in Mulchand v. Raman 1 , their decision might well have been the other way. On the other hand, the Attorney-General submitted that there companyld be numberquestion of companyflict between two entries in the same list and that the natural meaning of one should number be restricted simply because of the presence of the other. He placed reliance on the following observations of Gwyer C.J. in Aliqa Begums case 4 It would be practi- cally impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every item in that list and Parliament seems to have been companytent to take a number of companyprehensive categories and to describe each of them by words of broad and general importI think, however, that numbere of the items in the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. These observations were, however, made to support the companyclusion that the power to legislate with respect to companylection of rents under entry 21 of List II includes the power to legislate with respect to any limitation on the power of a landlord to companylect rents, that is to say, with respect to the remission of rents as well, and that, therefore, the United Provinces Regularisation of Remissions Act, 1933, was intra vires. General observations made in such companytext 4 1940 F.C.R. 110,134 do number answer the objection that the wider companystruction of entry 1 would deprive entry 2 of all its companytent and reduce it to useless lumber. I am therefore, of opinion that the words administration of justice and companystitution and organisation of companyrts occurring in entry 1 must be under- stood in a restricted sense excluding from their scope jurisdiction and powers of companyrts dealt with specifically in entry 2. This does number, however, companypel the companyclusion that it is beyond the companypetence of the Provincial Legislature to companyfer general jurisdiction on companyrts companystituted by it, for, if entry 1 does number by itself enable the legislature to do so, entry 2 certainly does when read with entry 1. It should be remembered--and this is what the argument for restricting the legislative power of provinces in regard to jurisdiction overlooks--that administration of justice is one of the matters mentioned in List II itself. The Provin- cial Legislature, therefore, is companypetent under entry 2 to legislate companyferring jurisdiction on companyrts with respect to administration of justice, that is to say, general juris- diction to administer justice by adjudicating on all matters brought before them, except, of companyrse, matters excluded expressly or by implication either by an existing law company- tinued in force or by a statute passed by the appropriate legislature under the entries in the three Lists relating to jurisdiction and powers of companyrts. In other words, though administration of justice in entry 1 does number authorise legislation with respect to jurisdiction and powers of companyrts, the legislative power under entry 2 in regard to the tatter topic, which can be legitimately exercised with respect to any of the matters in this List, can be exer- cised with respect to administration of justice, one of the matters companyprised in that List, with the result that the subject of general jurisdiction is brought within the autho- rised area of provincial legislation. This view thus leaves a field in which entry 2 companyld apply. When once the Provincial Legislature is found companypetent to make a law with respect to the general jurisdiction of companyrts, the apparent companyflict with the central legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment. For, that rule, though number of much assistance in companystruing entries 1 and 2 which occur in the same List II, has its legitimate applica- tion in ascertaining the true character of an enactment and attributing it to the appropriate list where the Federal and the Provincial Lists happen to overlap. Accordingly, if the Legislature of Bombay was, in companyferring jurisdiction on the City Civil Court to hear and determine all suits of a civil nature, really legislating on a subject which was within the ambit of its legislative power, and if in doing so, it encroached on the forbidden field marked off by entry 53 of List 1, the encroachment should be taken to be only inciden- tal. It may be that such encroachment extends to the whole of that field, but that is immaterial, as pointed out by the Judicial Committee in the Khulna Bank case 1 . One of the questions their Lordships put to themselves in that case was Once it is determined that the pith and substance is money- lending, is the extent to which the federal field is invaded a material matter? Answering the question in the negative their Lordships observed No doubt it is an important matter, number, as their Lordships think, because the validity of an Act can be determined by discriminating between de- grees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provi- sions may advance so far into the federal territory as to show that its true nature is number companycerned with provincial matters, but the question is number, has its trespassed, more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is number money lending but promissory-notes or banking ? Once that question is determined, the Act falls on one or the other side of the line and can be seen as valid or invalid accord- ing to its true companytent. In answering the objection that that view does number give sufficient effect to the words of precedence used in section 100 of the Government of 1 1947 F.C.R.28. India Act as between the three Lists, their Lordships went on to say No doubt where they companye in companyflict List I has priority over Lists III and II, and List III has priority over List II but the question still remains priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to companysider what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character ? In their Lordships opinion the latter is the true view. The test for determining whether in pith and substance a particular enactment falls within one list or another is further elucidated in a passage quoted with approval from Lefroys Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case 1 . It seems quite possible says the learned writer, summarising the effect of the Privy Council decisions on the point that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Domin- ion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act. The cases which illustrated this principle show. by aspect here must be understood the aspect or point of view of the legislator in legislating--the object, purpose and scope of the legisla- tion. The word is used subjectively of the legislator rather than objectively of the matter legislated upon. Applying that test there can be little doubt that the im- pugned Act must, in its pith and substance, be attributed to List II. as the legislators of Bombay were certainly number companyferring on the new companyrt, which they were companystituting under the Act, jurisdiction with respect to any of the matters in List I. They were, as section 3 clearly indi- cates companystituting a new companyrt, the Bombay City Civil Court, and investing it with the 1 1944 F.C.R.126,139. general jurisdiction to try all suits of a civil nature within certain. pecuniary and territorial limits, and if they were acting, as I have endeavoured to show, within the scope of the legislative power companyferred on them under entry 2 read with entry 1 of List II, it seems immaterial that the enactment, so far as one aspect of jurisdiction, namely, its companyferment, is companycerned, encroaches practically on the whole of the federal field marked out by entry 53 of List I. The encroachment, however, would still leave ample room for the exercise by the Centre of its legislative power under entry 53 in regard to other aspects of jurisdiction and powers of companyrts. This view is strongly reinforced by a companysideration of the legislative practice prevailing in this companyntry prior to the passing of the Government of India Act, 1935. That it is legitimate to have regard to legislative practice in deter- mining the scope of legislative powers has been recognised in decisions of high authority e.g., Croft v. Dunphy 1 , It had long been the practice in this companyntry to companystitute and organise companyrts with general jurisdiction over all persons and matters subject only to certain pecuniary and territorial limitations, and to companyfer special jurisdiction limited to certain specified cases or matters either on the ordinary companyrts in addition to their general jurisdiction or on tribunals set up to deal with such matters exclusively. The various Provincial Civil Court Acts as well as the provisions of the Civil and Criminal Procedure Codes invest the companyrts, both civil and criminal, with general jurisdic- tion, that is to say, power to adjudicate in respect of all persons and all matters except those that are specifically excluded or brought within the companynisance of tribunals with special or limited jurisdiction extending only to those matters. The grading of the companyrts too in their heirarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of companyrts in 1 1933 A.C. 156,165 British India was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of companystituting companyrts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be companyferred by piecemeal legisla- tion by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legisla- tive fields which are by numbermeans capable of cear demarca- tion. The companystitutional puzzles which such a system is likely to pose to the legislatures numberless than to the companyrts and the litigant public in the companyntry whenever a new companyrt is companystituted in finding out by searching through the legislative lists, whether jurisdiction to deal with a particular matter or power to make a particular order is validly companyferred by the appropriate legislature must make one pause and examine the relevant provisions of the Govern- ment of India Act to see if there is anything in them to companypel the acceptance of so numberel a system. After giving the matter my careful companysideration, I am companyvinced that both the language of the provisions and the antecedent legislative practice support the companyclusion that the Provin- cial Legislatures which have the exclusive power of companysti- tuting and organising companyrts and of providing for the admin- istration of justice in their respective provinces, have also the power of investing the companyrts with general juris- diction. On the question whether section 4 of the Act operates as a delegation of legislative power, I entirely agree with the reasoning and companyclusion of my learned brother Das who has said all I wish to say in his judgment which I have had the advantage of reading, and, like him, I reserve the larger question raised by the Attorney-General as to how far it is open to the legislatures in this companyntry, while acting within their authorised areas, to delegate their legislative powers to other agencies. I find it numbermore necessary in the present case to decide that point than in Jatindranath Guptas case I where I preferred to rest my decision on a narrower ground. It follows that the High Court has numberjurisdiction 0 hear and determine the first respondents suit and I agree that the appeal should be allowed. MAHAJAN J.--This is an appeal from the judgment of the High Court of Judicature at Bombay dated the 29th March, 1950, in Suit No. 240 of 1950, holding that section 4 of the Bombay City Civil Court Act Bombay Act XL of 1948 is ultra vires the Provincial Legislature. The facts are that on the 6th February, 1950, the first respondent presented a plaint to the Prothonotary and Senior Master of the High Court for filing a summary suit against the second respondent to recover a sum of Rs. 11,704-24 alleged to be due under promissory numberes. This suit was instituted in the High Court, in companytravention of a numberifi- cation dated the 20th January, 1950, issued under section 4 of the City Civil Court Act, under which suits up to the pecuniary limit of Rs. 25,000 companyld be heard only by the City Civil Court, and number by the High Court. As the question of jurisdiction was of importance, the matter was referred to the sitting Judge in Chambers. On 23rd February, 1950, the learned Judge admitted the plaint holding that section 4 of the Act was ultra vires the Provincial Legislature and the numberification issued under it was companysequently inopera- tive and that the High Court had jurisdiction to hear the suit. The first respondent thereupon took out summons for judgment against the second respondent. On the application of the AdvocateGeneral, the State of Bombay was impleaded as defendant at this stage and the proceedings were trans- ferred to a Division Bench of the High Court. The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. 1 1949-50 F.C.R. 595. Two questions have been canvassed in this appeal 1 whether the City Civil Court Act is ultra vires the legisla- ture of the Province of Bombay in so far as it deals with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I of the Seventh Schedule of the Government of India Act, 1935 and 2 whether section 4 of the Act is void as it purports to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with ex- tended jurisdiction. Bombay Act of 1948 came into force on 10th May, 1948. It was companysidered expedient to establish an additional civil companyrt for Greater Bombay presumably with the object of relieving companygestion of work on the original side of the Bombay High Court. Sections 3, 4 and 12 of the Act are in these terms -- The State Government may, by numberification in the Official Gazette, establish for the Greater Bombay a companyrt, to be called the Bombay City Civil Court. Notwithstanding anything companytained in any law, such companyrt shall have juris- diction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are companynisable-- a by the High Court as a Court of Admiralty or Vice- Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or b by the High Court for the relief of insolvent debt- ors, or c by the High Court under any special law other than the Letters Patent, or d by the Small Cause Court Provided that the State Government may, from time to time, after companysultation with the High Court, by a like numberifica- tion extend the jurisdiction of the City Court to any suits or proceedings which are companynisable by the High Court as a companyrt having testamentary or ntestate jurisdiction or for the relief of insolvent debt- ors. Subject to the exceptions specified in section a the State Government may by numberification in the Official Ga- zette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value number exceeding twenty-five thousand rupees as may be specified in the numberification. Notwithstanding anything companytained in any law, the High Court shall number have jurisdiction to try suits and proceedings companynisable by the City Court Provided that the High Court may, for any special rea- son, and at any stage remove for trial by itself any suit or proceeding from the City Court. On the second question the High Court held that section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to an outside authority and hence the numberification issued in pursuance of it had numbereffect whatsoever and did number take away the jurisdiction of the High Court to try the present suit. On the first ques- tion the High Court placed reliance on its own earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 1 , and held that the Act was intra vires the Bombay Legislature. The appellant assails the companyrectness of the decision of the High Court on the second point and supports the decision on the first point. The first respondent, on the other hand, while supporting the decision of the High Court on the second question, challenges its companyrectness in regard to the first question. The learned Attorney-General companytends that the High Court placed an erroneous companystruc- tion on sections 3 and 4 of the Act that reading the two sections together the effect is that the legislature has set up the City Civil Court with an initial jurisdiction of Rs. 10,000 and has placed an outside limit of Rs. 25,000 on its pecuniary jurisdiction and that it 1 51 Bom. L.R, 86. has left to the discretion of the Provincial Government the determination of the circumstances under which this exten- sion of the pecuniary jurisdiction between Rs. 10,000 to Rs. 25,000 is to take place. It was said that section 4 is in the nature of a companyditional legislation and that under it numberlegislative function has been delegated to the Provincial Government. The learned Chief Justice in the companyrt below disposed of this companytention with the following,observations I am also companyscious of the fact that an Act must be companystrued in a manner which would reconcile its differ- ent sections but with the best of intention in the world I do number see how it is possible to read sections 3 and 4 together so as to companye to the companyclusion for which the AdvocateGeneral companytends. To my mind it is patent that the Legislature never applied its mind to the question as to whether the new companyrt which it was setting up should have a jurisdiction higher than that of Rs. 10,000. It never passed any judgment on that question. It never laid down any policy with regard to that question and section 4 is number a section which merely directs the Provincial Government to carry out the policy laid down by the legislature but it is a section which companyfers upon the Provincial Gov- ernment the power to companyfer jurisdiction upon the Court, or in other words, it is a section which entitled the Provin- cial Government to lay down its policy as to whether the new Court should have the increased jurisdiction up to twenty- five thousand rupees. I find it difficult to accept this view. Without apply- ing its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than Rs. 10,000, how companyld the legislature possibly enact in section 4 that the pecuniary jurisdiction of the new companyrt would number exceed Rs. 25,000. The fixation of the maximum limit of the companyrts pecuniary jurisdiction is the result of exercise of legislative will, as without arriving at this judgment it would number have been able to determine the out- side limit of the pecuniary jurisdiction of the new companyrt. The policy of the legislature in regard to the pecuniary jurisdiction of the companyrt that was being set up was settled by sections 3 and 4 of the Act and it was to the effect that initially its pecuniary jurisdiction will be limited to Rs. 10,000 and that in future if circumstances make it desirable- and this was left to the determination of the Provincial Government-it companyld be given jurisdiction to hear cases up to the value of Rs. 25,000. It was also determined that the extension of the pecuniary jurisdiction of the new companyrt will be subject to the provisions companytained in the exceptions to section 3. I am therefore of the opinion that the learned Chief Justice was number right in saying that the legislative mind was never applied as to the companyditions subject to which and as to the amount up to which the new companyrt companyld have pecuniary jurisdiction. All that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new companyrt would be clothed with enhanced pecuniary jurisdiction. The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government and to such companyditional legislation numberexception companyld be taken. The section does number empower the Provincial Government to enact a law as regards the pecuniary jurisdic- tion of the new companyrt and it can in numbersense be held to be legislation companyferring legislative power on the Provincial Government. In Queen v. Burah 1 , section 9 of Act XXII of 1869, which was a piece of legislation analogous to section 4 of the City Civil Court Act, was held intra vires by their Lordships of the Privy Council. By the 9th section power was companyferred on the Lieutenant Governor of Bengal to deter- mine whether the Act or any part of it should be applied to certain districts. In other words, authority to extend the territorial limits of the operation of the statute was companyferred on the Lieutenant Governor and such extension had the result of depriving the High Court of its jurisdiction in those areas and of companyferring jurisdiction in respect to them 1 5 I.A. 178. on the companymissioner. Objection was taken as to the validity of section 9 on the ground that it was legislation delegat- ing legislative power and was therefore void, Their Lord- ships negatived this companytention and held that section 9 was intra vires the Governor Generals power to make laws and was a piece of companyditional legislation. That was a case of an extension of territorial limits within which an Act of the Legislature was to be in force, whereas the present is a case of extension of pecuniary limits of a companyrts jurisdic- tion. In principle, there seems numberdifference between the two cases and the present case is therefore within the rule of the decision in Queen v. Burah 1 . Their Lordships in holding section9 intra vires made the following observations Their Lordships think that it is a fallacy to speak of the powers thus companyferred upon the Lieutenant Governor large as they undoubtedly are as if, when they were exer- cised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Gover- number, General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers, and the result of that judgment has been to legislate companyditionally as to all these things. The companyditions having been fulfilled, the legislation is number absolute. Where plenary powers of legis- lation exist as to particular subjects, whether in an Impe- rial or in a Provincial Legislature, they may in their Lordships judgment be well exercised, either absolutely or companyditionally. Legislation, companyditional on the use of particular powers, or on the exercise of a limited discre- tion, entrusted by the Legislature to persons in whom it places companyfidence, is numberuncommon thing and, in many cir- cumstances. it may be highly companyvenient. The British Stat- ute Book abounds with examples of it and it cannot be supposed that the Imperial Parliament did number, when companysti- tuting the 1 5 I A. 178, Indian Legislature, companytemplate this kind of companyditional legislation as within the scrape of the legislative powers which it from time to time companyferred. certainly used numberwords to exclude it. These observations appositely apply to the legislative provision companytained in section 4 of the impugned Act. The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and companyferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. Objection may be taken to the former but number to the latter. Reference in this companynection may also be made to the decision of the Supreme Court of America in Field v. Clark 1 wherein referring to Lockes case 2 the following observations were made - To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public wel- fare whenever a law is passed relating to a state of affairs number yet developed, or to things future and impossible to fully know. The proper distinction the companyrt said was this The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must there- fore, be a subject of inquiry and determination outside of the halls of legislation. The High Court in support of its view placed companysidera- ble reliance on the decision of the Federal Court in Jatin- dra Nath Gupta v. The Province of Bihar 3 and it was company- sidered that the present case fell1 within the ambit of the rule therein laid down. It seems to me that the decision in the Bihar case has numberapplication to the case in hand. The Federal Court there was 1 143 U.S.649. 3 1949 F.C.R.595. 2 72 Pa.491. dealing with an Act which companytained the following provisions in section 1, sub-section 3 - The Act shall remain in force for a period of one year from the date of its companymencement Provided that the Provincial Government may, by numberifi- cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification. In companynection with this proviso I said in my judgment in that case that the power companyferred therein was much larger than was companyferred on the Lieutenant Governor in Queen v. Burah 1 inasmuch as it authorised the Provincial Government to modify the Act and also to re-enact it. It was pointed out that distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and companyferring discretion or authority as to its execution to be exercised Under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. The following observations made by me there pointedly bring out the distinction between the two cases - The proviso which has been assailed in this case. judged on the above test, companyes within the ambit of delegat- ed legislation, and is thus an improper piece of legislation and is void. To my mind, it number only amounts to abdication of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel Legisla- ture for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year. A careful analysis of the proviso bears out the above companyclu- sion. It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a numberification saying 1 5 I.A. 178. that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification Modification of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are numberlonger parts of the statute and that a statute with X sections is number enact- ed with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised wheth- er certain parts of the statute are to remain law in future or number or have to be deleted from it. The power to modify may even involve a power to repeal parts of it. A modified statute is number the same original statute. It is a new Act and logically speaking, it amounts to enacting a new law. I have number been able to follow how these observations companycerning the Bihar statute companyld be relied upon by the High Court in support of its decision in respect 10 the invalidity of section 4 of the Bombay City Civil Court Act. The two provisions are number analogous in any manner whatsoev- er and that being so, numbersupport can be derived by the respondent from this decision. In the companycluding portion of his judgment under appeal the learned Chief Justice observed as follows- Now applying once more these tests to the City Civil Court Act, we find that the Legislature in the exercise of its legislative power has set up a Civil Court with a limit- ed jurisdiction under section 5 of the Act. It has number set up a companyrt with jurisdiction higher than ten thousand rupees. Having set up a companyrt of limited jurisdiction it has given to the Provincial Government under section 4 the power to center upon that companyrt a higher jurisdiction up to twen- ty-five thousand rupees. Now this power which is companyferred upon the Provincial Government is a power which companyld only have been exercised by the Legislature itself. It seems to me that the above observations are based on a companystruction of sections 3 and 4 of the Act which these sections cannot legitimately bear. As already observed. the Legislature set up a Civil Court for Greater Bombay and decided that, to start with, it will have pecuni- ary jurisdiction up to Rs. 10,000. It also decided at the same time that it would also have jurisdiction up to Rs. 25,000 as soon as circumstances, necessitate it the Provin- cial Government was companystituted the judge of those circum- stances. What the limit of that jurisdiction was to be was in unmistakeable terms enacted in section 4 of the Act. It was number left to the will of the Provincial Government to companyfer on that companyrt any pecuniary jurisdiction that it liked to companyfer upon it. It would be by force of the legis- lative power of section 4 that the City Civil Court will be vested with enhanced jurisdiction but that vesting cannot take place till a numberification is issued by the Provincial Government. It is companyditional on that event only. For the reasons given above, in my judgment, the High Court was in error in holding that section 4 of the City Civil Court Act was void and ultra vires the Provincial legislature. In this view the numberification issued under section 4 must be held to be effective. That being so, it is unnecessary to go into the question raised by the learned Attorney-General that assuming that section 4 of the Act was delegation of legislative power, it was still valid. The next question to decide is whether the Act is ultra vires the Bombay Legislature. In order to appreciate Mr. Seervais companytention on this point it is necessary to set out some of the provisions of the Government of India Act, 1935. relevant to the enquiry. These are companytained in sec- tion 100. and in the Seventh Schedule in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III. They are in these terms-- Sec. 109. 1 Notwithstanding anything in the two next succeeding sub sections, the Federal Legislature, has, and a Provincial Legislature has number power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act hereinafter called the Feder- al Legislative List. Notwithstanding anything in the next succeeding sub section, the Federal Legislature, and, subject to the pre- ceding subsection, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule hereinafter called the Concurrent Legislative List. - Subject to the two preceding sub-sections, the Provin- cial Legislature has, and the Federal Legislature has number, power to make laws for a Province or any part thereof with respect 10 any of the matters enumerated in List II in the said Schedule hereinafter called the Provincial Legis- lative List. The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof. List I. 23. Cheques, bills of exchange, promissory numberes and other like instruments. Jurisdiction and powers of all companyrts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by Part IX of this Act, the enlargement of the appellate jurisdic- tion of the Federal Court, and the companyferring thereon of supplemental powers. List II. 1. Public order but number including the use of His Majestys naval, military or air forces in aid of the civil power the administration of justice companystitu- tion and organization of all companyrts, except the Federal Court, and fees taken therein preventive detention for reasons companynected with the maintenance of public order persons subject to such detention. Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this list procedure in Rent and Revenue Courts. List III.4. Civil Procedure, including the Law of Limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act the recovery in a Governors Province or a Chief Commissioners Province of claims in respect of taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province. Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this list. Mr. Seervat companytends that section 3 of the impugned Act is void because it directly trenches on the exclusive legis- lative powers of the Centre companyferred on it by List I of the Seventh Schedule inasmuch as it companyfers jurisdiction on the new companyrt in respect to all cases of a civil nature. The expression all cases of a civil nature presumably brings within the ambit of the Act suits in respect to subjects companytained in List I. He urged that the three simi- lar entries in the three is, namey, entry 53 in List I, entry 2 in List II and entry 15 in List III indicated that in respect to the subjects companyered by the three fields of legislation demarcated for the two Legislatures the Parlia- ment empowered each of them respectively to make laws in respect to jurisdiction and power of companyrts and that in view of the provisions of section 100 of the Constitution Act the Provincial Legislature had numberpower to make any law companyfer- ring jurisdiction on companyrts in respect to subjects companyered by List I. In other words, the Federal Legislature alone companyld legislate on the jurisdiction and powers of a companyrt in regard to the subjects in List I. Similarly in respect of subjects companytained in the Provincial List, jurisdiction and power of companyrts companyld only be determined by a law enacted by the Provincial Legislature and that in respect of items companytained in List III, both Legislatures companyld make laws on the subject of jurisdiction and powers of companyrts. It was said that the exceptions and the proviso to section 3 of the City Civil Court Act in dear terms disclosed that jurisdic- tion in respect to the subjects on which the Provincial Legislature had numbercompetence to legislate was also company- ferred on the new companyrt. Section12 of the Act by which the High Court was deprived of all jurisdiction on matters that fell within the jurisdiction of the City Civil Court was assailed on similar grounds. In regard to the legislative power companyferred under entry I of List 11 on the Provincial Legis- lature it was companytended that this wide power stood limited by the three entries above mentioned and that under it legislation companyld only be made to the extent of establishing and organizing companyrts but numberlegislation under it was per- missible in respect to the powers of those companyrts. The learned Attorney-General, on the other hand, company- tends that the Act is intra vires the Bombay Legislature under entry 1 of List II and under entries 4 and 15 of List III, it having received the assent of the Governor-General. It was urged that the Provincial Legislature had exclusive legislative power on the subject of administration of jus- tice and companystitution and organization of all companyrts and that this power necessarily included the power to make a law in respect to the jurisdiction of companyrts established and companystituted by it and that the impugned legislation in pith and substance being on the subject of administration of justice, it companyld number be held ultra vires even if it trenched on the field of legislation of the Federal Legisla- ture. In regard to entry 53 of List I, entry 2 of List II and entry 15 of List II of the Schedule, it was said that these companyferred legislative power on the respective Legisla- tures to companyfer special jurisdiction on established companyrts in respect of particular subjects only if it was companysidered necessary to do so. In other words the argument was that the Provincial Government companyld create a companyrt of general jurisdiction legislating under entry 1 of List II and that it was then open to both the Central and the Provincial Legislatures to companyfer special jurisdiction on companyrts in respect to particular matters that were companyered by the respective lists. In my opinion, the companytention of the learned Attorney-General that the Act is intra vires the Bombay Legislature under entry 1 of List If is sound and I am in respectful agreement with the view expressed by the Chief Justice of Bombay on this point in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 1 . The learned Chief Justice when dealing with this point said as follows- If, therefore, the Act deals with administration of justice and companystitutes a companyrt for that purpose and companyfers ordi- nary civil jurisdiction upon it, in my opinion, the legis- lation clearly falls within the legislative companypetence of the Provincial Legislature and is companyered by item 1 of List 11 of Schedule 7. That item expressly companyfers upon the Provincial Legislature the power to legislate with regard to the administration of justice and the companystitution and organization of all companyrts except the Federal Court. It is difficult to imagine how a companyrt can be companystituted without any jurisdiction, and if Parliament has made the adminis- tration of justice exclusively upon the Provincial Legisla- ture the power to companystitute and organize all companyrts, it must follow, that the power is given to the Provincial Legislature to companyfer the ordinary civil jurisdiction upon the companyrts to carry on with their work. Item 2 of List II deals with jurisdiction and power of all companyrts except the Federal Court with respect to any of the matters in this list, and Mr. Mistrees argument is that item 1 is limited and companyditioned by item 2 and what he companytends is that the only power that the Provincial Legislature has is undoubted- ly to create companyrts, but to companyfer upon them only such jurisdiction as relates to items companyprised in List II. I am unable to accept that companytention or that interpretation of List 11 in Schedule 7. Each item in List 11 is an independ- ent item, supplementary of each other, and number limited by each other in any way. Item 1 having given the general power to the Provincial Legislature with regard to all matters of administration of justice and with regard to the companystitution and organization of all companyrts, further gives the power to the Legislature to companyfer special juris- diction, if needs be, and special power, if needs be, to these companyrts with regard to any of the items mentioned in List 11. It is impossible to read item 2 as curtailing 1 51 Bom. L.R. 86. and restricting the very wide power with regard to adminis- tration of justice given to the Provincial Legislature under item 1. Similarly in List I the Federal Legislature has been given the power under item 53 to companyfer jurisdic- tion and power upon any companyrt with regard to matters falling under any of the items in that list, and, therefore, it would be companypetent to the Federal Legislature to companyfer any special jurisdiction or power which it thought proper upon any companyrt with regard to suits on promissory numberes or mat- ters arising under the Negotiable Instruments Act It seems to me that the legislative power companyferred on the Provincial legislature by item 1 of List II has been company- ferred by use Of language which is of the widest amplitude administration of justice and companystitution and organization of all companyrts . It was number denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of companyrts established for the purpose of administration of justice. Moreover, the words appear to be sufficient to companyfer upon the Provincial Legis- lature the right to regulate and provide for the whole machinery companynected with the administration of justice in the PrOvince. Legislation on the subject administra- tion of justice and companystitution of companyrts of justice would be ineffective and incomplete unless and until the companyrts established under it were clothed with the jurisdiction and power to hear and decide causes. It is difficult to visua- lise a statute dealing with administration of justice and the subject of companystitution and organization of companyrts without a definition of the jurisdiction and powers of those companyrts, as without such definition such a statute would be like a body without a soul. To enact it would be an idle formality. By its own force it would number have power to clothe a companyrt with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become effective. Such an enactment is, so far as I know, unknown to legislative practice and history. The Parliament by making administration of justice a provin- cial subject companyld number be companysidered to have companyferred power of legisla- tion on the Provincial Legislature of an ineffective and useless nature. Following the line of argument taken by Mr. Mistree before the High Court of Bombay, Mr. Seervai stren- uously companytended that the only legislative power companyferred on the Provincial Legislature by entry 1 of List II was in respect to the establishment of a companyrt and its companystitution and that numberlegislative power was given to it to make a law in respect to jurisdiction and power of the companyrt estab- lished by it. The argument, logically analysed, companyes to this that a statute will companytain the name of the companyrt, the number of its judges, the method of their appointment, the salaries to be drawn by them and it will then stop short at that stage and will number include any provision defining the powers of the tribunal or its other jurisdiction and that the companyrt so companystituted companyld acquire jurisdiction only when a law was made relating to its jurisdiction and powers by the Federal Legislature under entry 53 of List I, by the Provincial Legislature under entry 2 of List II and by either Legisla- ture under entry 15 of List III. The learned companynsel company- tended that this peculiar result was the natural companysequence of a federal companystitution with divided powers, and that entries 53, 2 and 15 of the three respective lists limit and curtail the wide power companyferred on the Provincial Legisla- ture by item 1 of List II. It is difficult to accede to this companytention because it would amount to holding that though the Provincial Legislature under item 2 of List II has been given the widest power of legislation in the matter of administration of justice and companystitution and Organiza- tion of companyrts and though that field has been demarcated for it as its exclusive field of legislation, yet all that it can do, acting within that field, is merely to establish a companyrt without any companypetency to function and that in can only become an effective instrument for administering jus- tice by laws enacted elsewere or under powers companyferred under other items of the different lists. I am unable to read items 53, 2 and 15 of the three respective lists as imposing limitations on legislative power company- ferred on the Province by item 1 of List II. Such a company- struction of the Act would number only do violence to the plain language of item 1 of List II but would be companytrary to its scheme under which administration of justice was made a provincial subject. It is significant that numberother Legis- lature has been given the power to bring into existence a companyrt. A companyrt without powers and jurisdiction would be an anomaly as it would number be able to discharge the func- tion of administration of justice and the statute estab- lishing such a companyrt companyld number be said to be a law on the subject of administration of justice. It is a fundamental principle of the companystruction of a companystitution that every- thing necessary for the exercise of powers is included in the grant of power. Everything necessary for the effective execution of power of legislation must therefore be taken to be companyferred by the companystitution with that power. It may be observed that in exercise of legislative power under item 1 of List 11 a provincial Legislature can alter the companystitu- tion of the existing companyrts, can abolish them, reorganize them and can establish new companyrts. If the companystruction companytended for by Mr. Seervai is accepted, then the existing companyrts re-established or re-organised by the provincial Legislature would number be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made. I do number think that such a result was in the companytemplation of parliament. Mr. Seervai with some force argued that it full effect is given to the companyprehensive phraseology employed in item 1 of List II, then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of List III nugatory. in other words, if the provincial Legislature companyld bring into existence a companyrt of general jurisdiction which companyld hear all causes on subjects companycerning which legislative power was divided in the three lists, then the companyferment of legislative power on the Federal Legislature under item 53 of List 1, on the provincial Legislature under item 2 in List II and on both the Legislatures under item 15 of List III was purposeless. In my opinion, this argument is number a valid one and the premises on which it is based are number sound. The three lists of subjects companytained in Schedule 7 have number been drawn up with any scientific precision and the various items in them overlap. The point kept in view in drawing up the lists was to see that all possible power of legislation was included ,within their ambit. By making administration of justice a provincial subject and by companyferring on the Provincial Legislature power to legislate on this subject and also on the subject of companystitution and organization of companyrts, Parliament companyferred on that Legislature an effective power which included within its ambit the law-making power on the sub- ject of jurisdiction of companyrts. The Provincial Legislature companyld therefore bring into existence a companyrt with general jurisdiction to administer justice on all matters companying before it within certain territorial and pecuniary limits, subject of companyrse to the companydition that such general juris- diction may be expressly or impliedly taken away by the provisions of other laws. The Parliament having divided the field of legislation between the two Legislatures, naturally thought that as a companyollary or a necessary companysequence of this division of legislative power it was necessary to provide by way of a companyplementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of companyrts on subjects which were within their exclusive legislative field. If a Legislature companyld exclusively legislate in respect to particular sub- jects, as a necessary companysequence it should also have the power to legislate in respect to jurisdiction and power of the companyrt dealing with that subject. It is this power that has been companyferred by entries 53, 2 and 15 above mentioned on the two Legislatures. Entries 42 and 99 of List I, entries 37 and 42 of List II and entries 25 and 36 of List III are of a similar companysequential character. The respective Legislatures are therefore companypetent to companyfer special powers on companyrts and can create special jurisdic- tions acting under those powers in respect to their divided fields of legislation. Instances of companyfer- ment of powers and jurisdiction on companyrts to hear cases on particular subjects were well known to Parliament. Such powers had been companyferred on different companyrts in respect of testamentary and intestate jurisdiction, admiralty jurisdic- tion, under the Indian Companies Act, under the Succession Act, Guardians and Wards Act and under the various. Rent Acts and Acts dealing with relief of indebtedness. In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of last II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate on the ques- tion of jurisdiction and powers of the companyrts. This companyfer- ment of legislative power to create special jurisdiction in respect to particular subjects does number in any way curtail the legislative power companyferred on the Provincial Legisla- ture under item 1 of List II. As soon as special legisla- tive power under item 53 of List I, under item 2 of List II and item 15 of List III is exercised, the causes that arise in respect to those subjects would then only be heard in jurisdictions created by those statutes and number in the companyrts of general jurisdiction entrusted with the numbermal administration of justice. In the language of section 9 of the Code of Civil Procedure, jurisdiction of the general companyrts will then become barred by those statutes. I am therefore of the opinion that under item 1 of List II the Provincial Legislature has companyplete companypetence number only to establish companyrts for the administration of justice but to companyfer on them jurisdiction to hear all causes of a civil nature, and that this power is number curtailed or limit- ed by power of legislation companyferred on the two Legislatures under items 53, 2 and 15 of the three lists. On the other hand, these three items companyfer on the respective Legisla- tures power to legislate when dealing with particular sub- jects within their exclusive legislative field to make laws in respect of jurisdiction and powers of companyrts that will be companypetent to hear causes relating to those subjects in other words, this is a power of creating special jurisdictions only. This interpretation of the entries in the lists is number only in accordance with the scheme of the statute but it harmonizes the different entries in the lists and does number make any of them nugatory and in effective. The interpretation companytended for by Mr. Seervai would reduce the power of the Provincial Legislature under item 1 to almost numberhingness. The crux of the case is whether item 1 of List 11 should be given a limited companystruction which makes it nugatory or whether a limited companystruction is to be placed on items 53, 2 and 15 of the three lists. I have numberhesitation in holding that both in the light of principles of companystruction of statutes and principles of legislation, the companyrse to adopt is the one that I have indicated above. Finally, it was companytended that section 12 of the Act in any case was a void piece of legislation as it deprived the High Court of its jurisdiction even in respect to subjects companytained in List I of the Seventh Schedule. In view of the companystruction that I have placed on item 1 of List II this argument has numberforce. If the Legislature has power to bring into existence a companyrt and companyfer jurisdiction and power on it, a fortiori it has power to take away the jurisdic- tion and power that already exist in other companyrts. More- over, the Bombay City Civil Court Act in section a has excepted from the jurisdiction of the new companyrt all cases which the High Court can hear under any special law. Spe- cial law has been defined as a law applicable to a particu- lar subject. If under List 1 of the Seventh Schedule the Federal Legislature by any law determines that a case has to be heard by the High Court, section 5 will number affect the jurisdiction of that companyrt in any manner whatsoever. The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legisla- tive field of the Province under item 1 of List II and its validity cannot be affected even if it incidentally trenches on other fields of legislation. It is number a statute dealing with any of the subjects mentioned in List I and therefore it cannot be said that the Provincial Legislature has in any way usurped the power demarcated for the Centre. In view of this companyclusion I think it unnecessary to pronounce any opinion on the other points raised by the learned Attorney-General. For the reasons given above I allow the appeal preferred by the Government of Bombay and set aside the decision of the High Court holding that section 4 of the City Civil Court Act XL of 1948 is void. In the circumstances of the case I leave the parties t9 bear their own companyts of the appeal. MUKHERJEA J.--In my opinion this appeal should be allowed and I companycur substantially in the line of reasoning adopted by my learned brother Mahajan J. in his judgment. Having regard to the companystitutional importance of the questions raised in this case, I would desire to add some observations of mine own. There are really two questions which require companysidera- tion in this appeal. The first is whether section 4 of the Bombay City Civil Court Act, 1948, is void and inoperative by reason of its amounting to a delegation of legisltive powers by the Provincial Legislature to the Provincial Government of Bombay. The Bombay High Court has answered this question in the affirmative and it is entirely upon this ground that the judgment appealed against is based. The propriety of this decision has been challenged by the learned Attorney-General who appeared on behalf of the State of Bombay in support of this appeal. On the other hand, Mr. Seervai, appearing on behalf of the respondents, has number only attempted to repel the companytention ad- vanced by the learned Attorney-General, but has sought to support the judgment appealed against on another and a more companyprehensive ground which, if accepted, would make the entire Bombay City Civil Court Act a void piece of legisla- tion, as being an encroachment by the Provincial Legislature upon the field of legislation reserved for the Centre under List I of Schedule 7 to the Government of India Act, 1935. As regards the first point, I agree that the companytention of the appellant is sound and must prevail. I have numberhesi- tation in holding that the Legislature in empowering the Provincial Government to invest the City Court, by numberifica- tion, with jurisdiction of such value number exceeding Rs. 25,000 as may be specified in the Notification, has number delegated its legislative authority to the Provincial Gov- ernment. The provision relates only to the enforcement of the policy which the Legislature itself has laid down. The law was full and companyplete when it left the legislative chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the Statute itself. What the Provincial Government is to do is number to make any law it has to execute the will of the Legislature by determining the time at which and the extent to which, within the limits fixed by the Legislature, the jurisdiction of the companyrt should be extended. This is a species of companyditional legis- lation which companyes directly within the principle enunciated by the Judicial Committee in The Queen v. Burah 1 , where the taking effect of a particular provision of law is made to depend upon determination of certain facts and companyditions by an outside authority. The learned Judges of the Bombay High Court in companying to their decision on the point seem to have been influenced to some extent by the pronouncement of the Federal Court in Jatindranath Gupta v. Province of Bihar 2 , and the learned. Counsel for the respondents naturally placed reliance upon it. I was myself a party to the majority decision in that case and expressed my views in a separate judgment. I do number think that there is anything in my judgment which lends support to the companytention which the respondents have put forward. I stated expressly in companyrse of, my Judgment on the authority of the well known American decision in Lockes appeal 3 that a legislature may number 1 5 I.A. 178. 3 -13 American Reports 716. 1949 F.C.R. 596. delegate its powers to make law-but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend and that the inhibition against delegation does number extend to legislation which is companyplete in itself, though its operation is made to depend upon companytingencies the ascertainment of which is left to an external body. The subject-matter of dispute in the Bihar case was the validity of a proviso engrafted upon section 1, subsection 3 of the Bihar Maintenance of Public Order Act. The sub- section laid down that the Act would remain in force for a period of one year from the date of its companymencement. The proviso then added that the Provincial Government may, by numberification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification. Mr. Seervai would have been probably right in invoking the decision in that case as an authority in his favour if the proviso simply empowered the Provincial Government, upon companypliance with the companydi- tions prescribed therein, to extend the duration of the Act for a further period of one year, the maximum period being fixed by the Legislature itself. The proviso, however, went further and authorised the Provincial Government to decide at the end of the year number merely whether the Act should be companytinued for another year but whether the Act itself was to be modified in any way or number. It was companyceded by the learned Counsel appearing for the Province of Bihar that to authorise another body to modify a statute amounts to in- vesting that body with legislative powers. What the learned Counsel companytended for, was that the power of modification was severable from the power of extending the duration of the statute and the invalidity of one part of the proviso should number affect its other part. To this companytention my answer was that the two provisions were inter-related in such a manner in the statute that one companyld number be severed from the other. Obviousy, the facts of this case are quite different, and all that I need say with regard to my pronouncement in Jatindranath Guptas case is that the principle upon which that case was decided is number applicable and cannot be at- tracted, to the present case. I may state here that a question in the broad form as to whether a Provincial Legislature exercising its legislative powers within the limits prescribed by the Imperial Parlia- ment in the Government of India Act, 1935, companyld delegate its legislative functions in any manner to an outside au- thority as it thought proper, was neither raised number decided in Jatindranath Guptas case. The learned Attorney-General has number very properly invited any final decision on that point in the present case and I would refrain from express- ing any opinion upon it. The second point appears to be of some companyplexity and it was decided by the Bombay High Court adversely to the re- spondents on the basis of an earlier pronouncement of the same Court in Mulchand v. Raman 1 . The arguments of Mr. Seervai are really directed at assailing the companyrectness of this earlier decision which the learned Judges held to be binding on them in the present case. The companytention of Mr. Seervai, in substance, is, that the Bombay City Civil Court Act, which is a piece of provincial legislation, is ultra vires the legislature inasmuch as it purports to endow the City Court, which it brings into existence, with jurisdic- tion to receive, try and dispose of all suits and other proceedings of a civil nature with certain exceptions that are specified in the different sub-sections of section 8. What is said is that the expression all suits of a civil nature is wide enough to include suits in respect to mat- ters specified in List I of the Seventh Schedule of the Constitution Act with regard to which the Central Legisla- ture alone is companypetent to companyfer jurisdiction on companyrts under entry 53 of the said List. It is argued that so far as the Provincial Legislature is companycerned, it may empower all companyrts except the Federal Court with jurisdiction in respect to any of the matters in the Provincial List. 1 51 Bom. L.R. 86. and it may also be capable of exercising like powers in regard to subjects enumerated in the Concurrent List as provided for in article 15 of List III, subject to the companyditions laid down in section 107 of the Act. But as the scope of section 3 of the Bombay City Civil Court Act is number limited to matters in Lists II and III only and its language can embrace subjects companying under List I as well, and fur- thermore as the different subjects both within and outside the provincial and companycurrent fields dealt with by section 3 are inextricably, intertwined and number capable of severance or demarcation, the whole Act must be held to be ultra vires. In answer to this, it has been urged by the learned Attorney-General that amongst the subjects included in Item 1 of the Provincial List are the administration of justice and companystitution and organization of all companyrts except the Federal Court, and these expressions obviously include within their ambit the companyferring of general jurisdiction to hear and decide cases upon companyrts which are set up by the Provincial Legislature, and without which they cannot func- tion as companyrts at all. It is said that Item 2 of the Provincial List which mentions jurisdiction and powers of all companyrts except the Federal Court with respect to any of the matters in this List does number in any way limit or curtail the ordinary companynotation of the ,expressions admin- istration of justice and companystitution of companyrts as used in Item I of the said List referred to above. It cannot be disputed that the words administration of justice occuring in Item 1 of the Provincial List, unless they are limited in any way, are of sufficient amplitude to companyfer upon the Provincial Legislature the right to regulate and provide for the whole machinery companynected with the administration of justice. Section 92, of the North America Act deals with the exclusive powers of the Provincial Legis- latures and clause 14 of the section speaks of the admin- istration of justice in the Provinces as including the companystitution, maintenance and organization of Provincial Courts. In interpreting this provision of the companystitution it has been held in North America that the words companystitution, maintenance and organization of companyrts plainly include the power to define the jurisdiction of such companyrts territorially as well as in other respects 2 . Mr. Seervai argues that this might be the numbermal meaning of the words if they stood alone. But if Items 1 and 2 of the Provincial List are read together, the companyclusion cannot be avoided that the expressions administration of justice and companystitution of companyrts do number include jurisdiction and powers of companyrts which are separately dealt with under Item To find out, therefore, the extent of powers of the Provincial Legislature in respect companyferring jurisdic- tion upon companyrts, the relevant item to be looked to is number Item 1 but Item 2 of the Provincial List. The companytention in this form seems to me to be plainly unacceptable. I agree with Mr. Setalvad that the different topics in the same Legislative List should number be read as exclusive of one another. As was observed by Sir Maurice Gwyer in The United Provinces v. Atiqa Begum 1 , the sub- jects dealt with in the three Legislative Lists are number always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament seems to have been companytent to take a number of companyprehensive categories and to describe each of them by a word of broad and general import I think that numbere of the items in the List is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. As there can be numberquestion of companyflict between two items in the same List, there is numberwarrant for restricting the natural meaning of one for the simple reason that the same subject might in some aspect companye within the purview of the other. The difficulty,-however, arises when we companye to entry 53 of List I. Under this entry, it is the Central Re County Courts of British, Columbia--21 S.C.R. 446. 2 1940 F.C.R. 110 at p. 134. Legislature that has been given the power of legislating in regard to jurisdiction and powers of all companyrts except the Federal Court in respect to any of the matters in List L The difficulty that one is companyfronted with, is that if Item 1 of the Provincial List is taken to empower the Provincial Legislature to invest a companyrt with jurisdiction with respect to all subjects numbermatter in whichever List it might occur, a clear companyflict is bound to arise between Item 1 of the Provincial List and Item 53 of the Central List and a Provincial legislation trespassing upon the exclusive field of the Centre would be void and inoperative under section 100 of the Constitution Act. This being the posi- tion, a way would have to be found out to avoid the companyflict. As the Privy Council observed in the case of the Citizens Insurance Company of Canada v. Parsons 2 it companyld number have been the intention that a companyflict should exist and in order to prevent such a result the two sections must be read together and the language of the one interpreted and where necessary modified by the other. Mr. Seervai suggests that the proper way of reconciling this apparent companyflict would be to read the words adminis- tration of justice and companystitution of companyrts occurring in entry 1 of the Provincial List as exclusive of any matter relating to jurisdiction of companyrts. The Provincial Legisla- ture can only set up or companystitute companyrts but their juris- diction or power of deciding cases must be derived from the Central or the Provincial Legislature or, from either of them in accordance with the subjects to which such juris- diction relates. The Provincial Legislature can endow the companyrt with jurisdiction in respect to any matter in List II and the Central Legislature can do the same with regard to subjects specified in List I. So far as matters in the Concurrent List are companycerned, either of the Legislatures can make provisions in respect of them subject to the companydi- tions laid down in section 107 the Constitution Act. 2 .A.C. ,96 at p. 109. This argument, though apparently plausible, cannot, in my opinion, be accepted as sound. It is to be numbered that the right to set up companyrts and to provide for the whole machinery of administration of justice has been given exclu- sively to the Provincial Legislature. Under section 101 of the North America Act, the Parliament of Canada has a re- serve of power to create additional companyrts for better admin- istration of the laws of Canada but the Indian Constitution Act of 1935 does number give any such power to the Central Legislature. Courts are to be established by the Provincial Legislature alone. The word companyrt certainly means a place where justice is judicially administered, The appointment of Judges and officers or the mere setting apart of a place where-the Judges are to meet, are number sufficient to companysti- tute a companyrt. A companyrt cannot administer justice unless it is vested with jurisdiction to decide cases and the companysti- tution of a companyrt necessarily includes its jurisdiction. 1 If Mr. Seervais companytention is accepted, the result will be that when a Provincial Legislature estab- lishes a civil companyrt, it can only be invested with jurisdic- tion to decide cases in respect to matters companying within the Provincial List. Such companyrt can have numberpower to decide cases relating to any matter which is enumerated in List I so long as the appropriate Legislature does number companyfer upon it the requisite authority. Thus an ordinary Provincial Court established to decide civil suits would be entitled to entertain all money claims but number a claim on a promissory numbere number companyld it entertain a suit for recovery of companypora- tion tax, for Negotiable Instruments and companyporation tax are subjects of the Central List. This certainly was number the scheme of the Constitution Act. In my opinion, the proper way to avoid a companyflict would be to read entry 1 of the Provincial List, which companytains the only provision relating to companystitution of companyrts and administration of justice, along with the group of three entries, viz., entry 53 of List I, entry 2 of List II and entry 15 of List III with which it is supposed to be in companyflict, Vide Clements Canadian Consitution, 3rd Edn., p. 527, and to interpret the language of one by that of the other. Entry 1 of List II uses the expressions administration of justice and companystitution of all companyrts in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a companyrt might be companystituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases number limited to any particular subject. The other three items on the other hand relate to particular matters appearing in the three Lists and what they companytem- plate is the vesting of jurisdiction in companyrts with regard to such specific items only. In one case the jurisdiction is general as is implied in the expression administration of justice, while in the other three the jurisdiction is particular as limited to particular matters and hence exclusive. I agree with my learned brother Patanjali Sastri J. that one approved way of determining the scope of a legislative topic is to have regard to what has been ordi- narily treated as embraced within that topic in the legisla- tive practice of the companyntry 2 and if that test is ap- plied, the interpretation suggested above would appear to be perfectly legitimate. The distinction between general and particular jurisdiction has always been recognised in the legislative practice of this companyntry prior to the passing of the Constitution Act of 1935 and also after that. There have been always in this companyntry civil companyrts of certain classes and categories graded in a certain manner according to their pecuniary jurisdiction and empowered to entertain and decide all suits of a civil nature within particular localities. Particular jurisdiction again have been companyferred on some one or the other of these companyrts to try cases relating to certain specified matters. Thus there have been special jurisdictions created for insolvency, probate or guardianship proceedings, for deciding disputes relating to companypulsory acquisition of land and for dealing with cases arising under the Rent Acts or the different legislations passed in recent years 2 vide Croft v. Dunphy. 1933 A.C. 156. for scaling down exorbitant rates of interest or giving relief to rural debtors. Similar instances may be cited with regard to companyferring of special jurisdiction in criminal cases. There will be numberdifficulty in interpreting in a proper manner the different entries in the Legislative Lists re- ferred to above if this distinction between general and special jurisdiction is kept in view. The entire scheme of the Constitution Act of 1935 is to vest the power of estab- lishing companyrts upon the Provincial Legislature. The Provin- cial Legislature can endow the companyrts which it sets up with general jurisdiction to decide all cases which, according to the law of the land, are triable in a companyrt of law, and all these powers can be exercised under entry I of List II. If the Central Legislature or the Provincial Legislature chooses to companyfer special jurisdiction on certain companyrts in respect to matters enumerated in their appropriate legisla- tive lists, they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would number m any way companyflict with the powers exercisable by the Provincial Legislature under entry 1 of List II. The expression general must always be understood as being opposed to what is special or exclu- sive. If the Central Legislature vests any particular juris- diction upon a companyrt in respect to a Central matter, that matter would cease to be a general matter and companysequently the companyrt having general jurisdiction would numberlonger deal with that, but the general jurisdiction of such companyrts would number be affected thereby. The companytents of general jurisdic- tion are always indeterminate and are number susceptible of any specific enumeration. In this view, I do number think that it would be at all necessary to invoke the pith and substance doctrine in avoiding the possibility of incidental encroach- ment by the Provincial Legislature upon Central subjects in regard to companyferring jurisdiction upon companyrts. If the expression jurisdiction in entry 53 of List I means and refers to special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction by reason of the companyferring of general jurisdiction upon companyrts by the Provincial Legislature under entry 1 of List II. As I have said already what is special or made so, will automatically cease to be in the category of what is general and numberquestion of a companyflict would at all arise. It may be pointed out in this companynection that in the Canadian Constitution also, the general scheme is to carry on administration of justice throughout Canada through the medium of provincial companyrts. Subject to the residuary power reserved to the Dominion Parliament under section 101 of the North America Act, the Constitution has assigned to the provinces the exclusive power in relation to administration of justice including the maintenance, companystitution and organization of companyrts. There is numberlimitation in any provincial companyrt along the line of division that exists between matters within the legislative companypetence of the Dominion Parliament and of the Provincial Legislative Assemblies 1 . There is indeed numbersuch thing as Entry 53 in List I of the Indian Act in the Canadian Constitution, but there are judicial pronouncements to the effect that the Dominion Parliament can impose jurisdiction on provincial companyrts over Dominion subjects 2 . It may be that the British Parliament in framing the legislative topics in the Government of India Act of 1935 in regard to administration of justice and jurisdiction of companyrts wanted to adopt the Canadian model with such modifications as they companysidered necessary. It is, however, immaterial to speculate on these matters. For the reasons given above, I am of the opinion that the decision of the Bombay High Court in Mulchand v. Raman 3 is companyrect, and the companytention of Mr. Seervai should fail. In the result, the appeal is allowed and the judgment of the High Court is set aside. DAS J--I agree that this appeal should be allowed. In view of the importance of the questions raised in Vide Clements Canadian Constitution p. 526. Vide Lefroys Canadas Federal system p. 541, 3 51 Bom. L.R. 86 this appeal, I companysider it right to state my reasons for companying to that companyclusion. The salient facts, as to which there is numberdispute, are as follows On May 10, 1948, the Provincial Legislature of Bombay passed Act No. XL of 1948, called the Bombay City Civil Court Act, 1948. It was passed with a view to estab- lish an additional Civil Court for Greater Bombay. The provisions of that Act which will be relevant for the pur- poses of the present appeal may number be set out 1. 2 It shall companye into force on such date as the Provincial Government may, by numberification in the Official Gazette, appoint in this behalf. The Provincial Government may, by numberification in the Official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwith- standing anything companytained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are companynizable- a by the High Court as a Court of Admiralty or Vice- Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or b by the High Court for the relief of insolvent debt- ors, or c by the High Court under any special law other than the Letters Patent, or d by the Small Cause Court Provided that the Provincial Government may, from time to time, after companysultation with the High Court, by a like numberification extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in Clauses a and b . Subject to the exceptions specified in section 3, the Provincial Government may, by numberification in the Offi- cial Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value number exceeding twenty-five thousand rupees as may be specified in the numberification. Notwithstanding anything companytained in any law, the High Court shall number have jurisdiction to try suits and proceedings companynizable by the City Court Provided that the High Court may, for any special rea- son, and at any stage, remove for trial by itself any suit or proceeding from the City Court. The Act received the assent of the Governor-General about the same time. It came into force on August 16, 1948, by a numberification issued by the Provincial Government and published in the Official Gazette. Simultaneously with the passing of the above Act the Bombay Legislature also enacted Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948. By section3 of that Act Clause 12 of the Letters Patent was amended by adding the following words Except that the said High Court shall number have such Original jurisdiction in cases falling within the jurisdic- tion of the Small Cause Court at Bombay or the Bombay City Civil Court. Shortly after the passing of the above Acts, the validi- ty of the Bombay City Civil Court Act XL of 1948 was challenged in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 1 , a suit on promissory numberes filed in the Original side of the High Court. A Division Bench of the Bombay High Court Chagla C.J. and Bhagwati J. , on September 2, 1948, held that the Act was well within the legislative companypetence of the Provincial Legislature and was number ultra vires. Leave was given to the plaintiff in that suit under section 205 of the Government of India Act, 1935, to appeal to the Federal Court but numbersuch appeal appears to have been filed. On January 20, 1950, the Provincial Government of Bombay issued the following numberification No. 2346/5 in the Official Gazette A,I.R. 1949 Bom. 197 51 Bom. L.R.86 In exercise of the powers companyferred by section 4 of the Bombay City Civil Court Act, 1948 Bombay, Act XL of 1948 , the Government of Bombay is pleased to invest, with effect from and on the date of this numberification, the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding twen- ty-five thousand rupees in value, and arising within the Greater Bombay subject, however, to the exceptions specified in section a of the said Act. On February 6, 1950, the first respondent Narothamdas Jethabhai presented a plaint before the Prothonotary of the Bombay High Court for recovery of Rs. 11,704-5-4 with further interest due by the second respondent Aloysious Pinto Phillips upon three several promissory numberes. In paragraph 4 of this plaint it was expressly pleaded that the High Court had jurisdiction to receive, try and dispose of that suit because 1 the Bombay City Civil Court Act, 1048, was ultra vires and 2 at least section 4 of that Act and the numberification issued thereunder were ultra vires. Having some doubts as to whether in view of the numberification issued 1 by the Provincial Government under section 4 of the Act the plaint companyld be admitted in the High Court, the Prothon- otary placed the matter under the rules of the Court before Bhagwati J. who was then the Judge in Chambers. By his judgment delivered on February 23, 1950, Bhagwati J. held that section 4 of the Act and the numberification issued there- under were ultra vires and void and that the High Court, therefore, had jurisdiction to entertain the suit. The plaint was accordingly received and admitted. The first respondent thereupon took out a summons under the rules of the Court for leave to sign judgment against the second respondent. The State of Bombay was, on its own application, added as a party to the suit. The matter was put up before a Division Bench Chagla C.J. and Tendolkar J. for trial of the following issues Whether Act XL of 1948 is ultra vires of the Legis- lature of the State of Bombay. Whether,Section 4 of Act XL of 1948 is in any event ultra rites of the Legislature of the State of Bombay. Whether the Government of Bombay Notification No. 2346/5 dated 20th January, i1950, is ultra vires, void and inoperative in law. Whether this Court has jurisdiction to try the suit. The larger point involved in issue No. 1 having been companycluded by the earlier decision of the Division Bench in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 1 that issue was answered in the negative without any argument but leave was reserved to the first respondent to companytest the companyrectness of that earlier decision in this Court. The Division Bench in agreement with Bhagwati J. held that by section 4 of the Act the Provincial Legislature did number itself legislate but delegated the power of legislation to the Provincial Government which it had numberpower to do and, therefore, section 4 and along with it the numberification No. 2346/5 issued thereunder were ultra vires, void and inoperative. Accordingly they answered issues Nos. 2 , 3 and 4 in the affirmative and sent the summons for judgment back to the learned Judge taking miscellaneous matters to dispose it of on merits. The State of Bombay has number companye up before us in appeal from this decision of the High Court. The Advocate-General of Madras has intervened in support of this appeal and for maintaining the validity of the Madras City Civil Court Act VII of 1892 section 3A of which inserted in 1935 by way of amendment is in identical terms with section 4 of the Bombay Act except that the amount of the value was fixed at Rs. 10,000 in section 3A of the Madras Act instead of Rs. 25,000 fixed in section 4 of the Bombay Act. The distinction between companyditional legislation and delegation of legislative power has been well-known 1 51 Bom L R.86 ever since the decision of the Privy Council in R.v. Burah 1 and the other Privy Council cases cited in the judgments of the High Court. It is firmly established that companyditional legislation is number only permissible but is indeed in many cases companyvenient and necessary. The difficul- ty which companyfronts the Courts is in ascertaining whether a particular provision of a Statute companystitutes a companyditional legislation as explained in the decisions of the Privy Council. In the present case the High Court, on a companystruc- tion of section 4 of the Bombay City Civil Court Act, came to the companyclusion that it was number an instance of companyditional legislation at all. The use of the word invest in section 4 was companysidered by the High Court to be very significant and the difference between the language in section 3 and that in section 4 appeared to them to be very marked and striking. According to the High Court while by section a the Legislature itself set up a Court with a particular pecuniary jurisdiction, under section 4 the Legislature itself did number invest the Court with any higher jurisdiction but left it to the Provincial Government to exercise the function which the Government of India Act laid down should be exercised by the Provincial Legislature. The learned Chief Justice expressed the view that the Legislature never applied its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than that of Rs. 10,000, and that section 4 was number a sec- tion which merely directed the Provincial Government to carry out the policy laid down by the Legislature, but that it was a section which companyferred upon the Provincial Govern- ment the power to companyfer jurisdiction upon the Court. Then, after referring to R.V. Baruha 1 and- several other cases and purporting to apply the tests laid down in the decisions to the Act the learned Chief Justice companycluded that the Legislature in the exercise of its legislative power had set up a Civil Court with a limited jurisdiction under section a of the Act, that it had number set up a Court with a jurisdiction higher than ten thousand rupees and L.R 5 I. A. 178. that, having set up a Court of, limited jurisdiction, it had given to the Provincial Government under section 4 the power to companyfer upon that Court a higher jurisdiction up to twenty-five thousand rupees. This power, which was company- ferred upon the Provincial Government was according to the Chief Justice, a power which companyld only have been exercised by the Legislature itself. I am unable to accept the afore-mentioned companystruction of sections 3 and 4 of the Act. As I have already said, the High Court rounded their companyclusions principally on the observations of their Lord- ships of the Privy Council in R.v. Burah 1 and certain other Privy Council cases. It will be useful, therefore, to analyse the Privy Council decision in R.v. Burah 1 . In 1869 the Indian Legislature passed an Act No. XXII of 1869 purporting, first, to remove a district called Garo Hills from the jurisdiction of the Courts of civil and criminal jurisdiction and from the law prescribed for such Courts by Regulations and Acts and, secondly, to vest the administra- tion of civil and criminal justice, within the same territo- ry, in such officers as the Lieutenant-Governor of Bengal might, for the purpose of tribunals of first instance, or of reference and appeal, from time to time appoint. The Act was to companye into operation on such day as the Lieutenant- Governor of Bengal should, by numberification in the Calcutta Gazette, direct. The 8th section authorised the Lieuten- ant-Governor of Bengal by numberification in the Calcutta Gazette to extend to the said territory, any law or any portion of any law then in force in other territories sub- ject to his government or which may thereafter be enacted by the Council of the Governor-General or of himself. The 9th section of that Act provided The said Lieutenant-Governor may from time to time, by numberification in the Calcutta Gazette, extend mutatis mutan- dis all or any of the provisions companytained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills, as for the time being forms part of British India, L.R. 5 I.A. 178. Every such numberification shall specify the boundaries of the territories to which it applies. On October 14, 1871, the Lieutenant-Governor of Bengal issued a numberification in exercise of the powers companyferred on him by section 9 extending the provisions of that Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of civil and crimi- nal justice. The respondent Burah and another person having been companyvicted by the Deputy Commissioner of the Khasi and Jaintia Hills of murder and sentenced to death, which was later on companymuted to transportation for life, they from jail sent a petition of appeal against their companyviction. The provisions of Act XXII of 1869 having been extended, by numberification under section 9, to the Khasi and Jaintia Hills, the High Court would have numberjurisdiction to enter- tain the appeal, unless section 9 and the numberification were ultra rites and void. The majority of the Judges of the Full Bench companystituted for companysidering the question took the view that section 9 was really number legislation but was an in- stance of delegation of legislative power. The Crown ob- tained special leave to appeal to the Privy Council. In summarising the effect of the provisions of sections 1 to 8 of that Act on Garo Hills Lord Selborne who delivered the judgment of the Privy Council observed at page 194 that the Governor-General in companyncil had determined, in the due and ordinary companyrse of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal leaving it to the Lieutenant-Governor to say at what time that change should take place, that the Legisla- ture had determined that, so far, a certain change should,take place, but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor and also, that the laws which were or might be in force in the other territo- ries subject to the same Government were such as it might be fit and proper to apply to this district also, but that, as it was number certain that all those laws, and every part of them, companyld with equal companyven- ience be so applied, it was expedient, on that point also, to entrust a discretion to the LieutenantGovernor. His Lordship then proceeded to state the true meaning and effect of the provisions of section 9 This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills? The Legislature decided that it was fit and proper that the adjoining dis- trict of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, number neces- sarily and at all events, but if and when the Lieutenant- Governor should think it desirable to do so and that it was also possible that it might be expedient that number all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature en- trusted for these purposes also, a discretionary power to the Lieutenant-Governor. Finally, his Lordship companycluded at p. 195 Their Lordships think that it is a fallacy to speak of the powers thus companyferred upon the LieutenantGovernor large as they undoubtedly are as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than- that of the Governor- General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers and the result of that judgment has been to legislate companyditionally as to all these things. The companyditions having been fulfilled, the legisla- tion is number absolute. Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provinciall Legislature, they may, in their Lordships judgment be well exercised, either absolutely or companydition- ally. Legislation, companyditional on the use of particular powers, or on the exercise of a limited discretion, entrust- ed by the Legislature to persons in whom it places companyfi- dence, is numberuncommon thing and, in many circumstances, it may be highly companyvenient. If the reasonings underlying the observations of the Bombay High Court were companyrect then on those very reasonings it companyld be held in Burahs case 1 that while in enacting sections 1 to 8 the Legislature had applied its mind and laid down its policy as to the exclusion of the Garo Hills from the jurisdiction of the Courts the Legislature did number apply its mind and did number lay down any policy as to the exclusion of the Khasi and Jaintia Hills rom the jurisdic- tion of the Courts but had left it to the Lieutenant-Gover- number to do what it alone companyld do. This companystruction quite clearly did number find favour with the Privy Council. The Privy Council by companystruction spelt out of the very language section 9 that the Legislature itself had decided that it was fit and proper that the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts and brought under the same provisions as applied to the Garo Hills, number necessarily and at all events but if and when the LieutenantGovernor should think it desirable to do so and accordingly entrusted a discretionary power to the Lieutenant-Governor. Adopting the same method of companystruc- tion and adopting the language of Lord Selborne it may well be said that in enacting section 3 the Legislature itself has determined, in the due and ordinary companyrse of legisla- tion, to establish an additional Court of civil jurisdiction with jurisdiction to entertain suits and other proceedings arising within the Greater Bombay of the value up to Rs. 10,000 leaving it, by section 1 2 , to the Provincial Government to say at what time that change should take place. Likewise, it may be said that in enacting section 4 the Legislature itself has decided that it is fit, and proper to extend the pecuniary jurisdiction of the new Court, number necessarily and at all events or all at once but if and when the Provincial Government should think it de- sirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the L.R. 5 I.A. 178. Legislature has number applied its mind or laid down any poli- cy. Indeed, the very fact that the extension of pecuniary jurisdiction should number exceed twenty-five thousand rupees, that the extension should be subject to the exceptions specified in section 3 clearly indicate that the Legislature itself has decided that the extension of the pecuniary jurisdiction of the new Court should be made, number necessarily or at all events or all at any one time but when the Provincial Government may companysider. it desirable to do so and while entrusting a discretionary power with the Provincial Government to determine the time for investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension. The efficacy of the Act of extension of jurisdiction is, there- fore, number due to any other legislative authority than that of the Legislature itself. The expression invest does number appear to me to have any special significance. It only implies or indicates the result of the fulfilment of the companydition which the Legislature itself laid down. To use the language of Lord Selborne the extension of jurisdiction is directly and immediately under and by virtue of this very Act itself. Here there is numbereffacement of the Legislature, numberabdication of the legislative power. On the companytrary, the proper Legislature has exercised its judgment as to the possible necessity for the extension of the pecuniary juris- diction of the new Court and the result of that judgment has been to legislate companyditionally as to such extension and that the companydition having been fulfilled by the issue of the numberification by the Provincial Government the legislation has number become absolute. In my judgment the companystruction put upon sections 3 and 4 by the High Court was erroneous and cannot be supported either on principle or on authority. When properly companystrued in the light of the observations and decision of the Privy CounCil in R.v. Burah 1 as indi- cated above section 4 does number amount to a delegation of legislative power at all but companystitutes what is known as companyditional legislation. L.R. 5 I.A 178. Reliance was placed by the High Court on the decision of the Federal Court of India in Jatindra Nath Gupta v. Prov- ince of Bihar 1 in support of their companyclusions. That case was companycerned with the question of the validity of the proviso to section 1 3 of the Bihar Maintenance of Public Order Act V of 1947 . Section 1 a provided that the Act should remain in force for a period of one year from the date of its companymencement. The relevant part of the proviso was in the following terms Provided that the Provincial Government may, by numberifi- cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification. Three of the learned Judges held that the proviso and the numberification thereunder were ultra vires and void- They laid particular emphasis on the power given to the Provin- cial Government to make any modification in the Act when extending its life as indicating that it was a delegation of legislative power. Another learned Judge did number decide this point but agreed to set aside the order of detention on another ground number material for our present purpose and the remaining learned Judge took a different view of the effect of the proviso and held that it was a companyditional legisla- tion within the meaning of the decision in R., v. Burah 2 . I do number find it necessary, for the purposes of the present appeal, to express any view as to the companyrectness of the decision of the Federal Court in that case. Assuming, but without deciding, that the entrustment with the Provincial Government of the power to extend the life of an Act with such modifications as the Provincial Government in its unfettered discretion thought fit to make was numberhing but a delegation of legislative powers, there is numbersuch power of modification given to the Provincial Government by section 4 of the Bombay City Civil Court A.I.R. 1949 F.C. 175, .2 L.R. 5 I.A. 178. Act. 1948 and, therefore, that decision of the Federal Court can have numberapplication to the case before us. The learned Attorney-General wants to go further and companytend that under the Government of India Act, 1935, it was permissible for the Legislatures, Central or Provincial, while acting within their respective legislative fields, to delegate their legislative powers. In the view I have ex- pressed above, namely, that section 4 of the Bombay City Civil Court Act, 1948, does number involve any delegation of legislative power, I do number companysider it necessary, on this occasion, to go into that question and I reserve my right to companysider and decide that question including the question of the companyrectness of the decision of the Federal Court in Jatindra Nath Guptas case 1 on that point as and when occasion may arise in future. Learned companynsel for the first respondent then raises before us the larger question as to whether the Bombay City Civil Court Act, 1948, as a whole was or was number within the legislative companypetence of the Provincial Legislature of Bombay. Legislative powers were by section 100 of the Gov- ernment of India Act, 1935, distributed amongst the Federal and the Provincial Legislatures. Under that section the Federal Legislature had, and the Provincial Legislature had number, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to that Act. Likewise, the Provincial Legislature had, and the Federal Legislature had number, power to make laws the Province with respect to my of the matters enumerated in List II in that Schedule. It will be numbericed thatthe section, while af- firmatively giving legislative power with respect to certain matters to one Legislature, expressly excluded the legisla- tive power of the other Legislature with respect to those matters. Lastly, section 100 gave companycurrent power of legis- lation to the Federal as well as to the Provincial Legisla- ture with respect to matters enumerated in List III in that Schedule. Section 107 of that Act made provision for resolv- ing the inconsistency, if any, between a Provincial law and a Federal law or the existing Indian A.I.R. 1949 F.C. 175 law with respect to any of the matters in the Concurrent List i.e., List III . Turning number to the three lists we find several entries relating to Courts, the relevant por- tions of which are as follows List I. Entry 53 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list List II. Entry 1 the administration of justice, companystitution and organisation of all Courts, except the Federal Court, and fees taken therein Entry 2 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list procedure in Rent and Revenue Courts. List III. PART 1. Entry 2 Criminal Procedure, including all matters included in the Code of the Criminal Procedure at the date of the passing of this Act. Entry 4 Civil Procedure, including the law of Limita- tion and all matters included in the Code of Civil Procedure at the date of the passing of this Entry 15 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list. Learned Attorney-General urges that entry 1 in List II clearly indicates that administration of justice had been expressly made a provincial subject and that it was only the Provincial Legislature which companyld make laws with respect to administration of justice. The next steps in the argument are that there companyld be numberadministration of justice unless Courts were companystituted and organised, that the companystitution and organisation of Courts would be meaningless enterprises for the Provincial Legislatures to indulge in, unless the Courts so companystituted and organised were vitalised by being invested with jurisdiction and powers to receive, try and determine suits and other proceedings. The argument, therefore, is that entry 1 in List II by itself gave power to the Provincial Legislature number only to companysti- tute and organise Courts but also to companyfer jurisdiction and powers on them. The learned Attorney-General relies on Jagtianis case 1 and points out that under entry 1 admin- istration of justice was entirely a provincial responsibili- ty and the Provincial Legislature was authorised to make laws with respect to administration of justice. Administra- tion of justice, so the argument proceeds, is inseparable from Courts and Courts without jurisdiction is an incompre- hensible numberion. The companyclusion sought to be established. therefore, is that under entry 1 alone of List II the Provincial Legislature had power to make a law number merely companystituting a new Court but, investing such new Court with general jurisdiction and powers to receive, try and deter- mine all suits and other proceedings. If entry 1 in List II stood alone and entry 53 in List I, entry 2 in List II and entry 15 in List HI were number in the Seventh Schedule, the argument would have been unanswerable. In Section 92 of the British North America Act, 1867, there was numberseparate provision authorising the making of laws with respect to jurisdiction and powers of Courts and, therefore, the au- thority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in and spelt out of the words administration of justice occurring in section 92 14 of that Act. There is, however, numbersuch pressing or companypelling necessity for giving such wide and all embracing meaning to the words administration of jus- tice in entry 1 of List 11. The expression administration of justice may be an expression of wide import and may ordinarily, and in the absence of anything indicating any companytrary intention, companyer and include within its ambit several things as companyponent parts of it, namely, the companysti- tution and organisation of Courts, jurisdiction and powers of the Courts and the laws to be administered by the Courts. But the legislative 1 51 Bom. L.B. 86. practice in England as well as in India has been to deal With these topics separately in legislative enactments see for example Indian High Courts Act 1861. 24 and 25 Vic., c. 104 sections 2 and 19 Government of India Act, 1935, sections 220 and 223, the Letters i Patent of the Bombay High Court, 1865, and also the different Civil Courts Acts. Of these, one topic, namely, companystitution and organisa- tion of Courts had been expressly included in entry 1 of List II in addition to administration of justice, a fact of some significance which must be numbered although I do number say that the inclusion of the words companystitution and organ- isation of all Courts in entry 1 of List II by itself and in the absence of anything else cut down the generality of the meaning of the expression administration of justice which preceded those words, for such a companystruction may militate against the principle laid down by the Privy Coun- cil in Meghraj v. Allah Rakhia 1 . Further, entry 2 in List II would have been wholly unnecessary if the expression administration of justice in entry 1 in List II were to be given the wide meaning companytended for by the learned Attor- neyGeneral, for if under entry 1 in List II the Provincial Legislature had plenary powers to make laws companyferring on, or taking away from, Courts, existing or newly companystituted, 0jurisdiction and powers of the widest description, such power would also include the lesser power of companyferring jurisdiction and powers with respect to any of the matters enumerated in List II, such as is companytemplated by entry 2 in List II. The greater power would certainly have included the lesser. I do number say that the presence of entry 2 in List II by itself cut down the ambit of the expression administration of justice in entry 1, for if there were only entries 1 and 2 in List II and there were numberentries like entry 53 in List I and entry 15 in List III, it might have been argued with some plausibility that in framing the two entries in the same list number much care was bestowed by the draftsman to prevent overlapping and that as L.R. 74 I.A. 12, at p.20 16 both the entries in one and the same list gave legislative power to the same Legislature the overlapping caused numberconfusion or inconvenience and that it was number necessary, therefore, to companystrue entry 1 of List II as cut down by entry 2 in the same List. The important thing to numberice is that the topic of jUrisdiction and powers of Courts had number been included in entry 1 in List II along with the topic of companystitUtion and organization of Courts, but the legislative powers with respect to the topic of jurisdic- tion and powers of the Courts had been distributed between the Federal and the Provincial Legislatures in the manner set forth in entry 53 in List I, entry 2 in List II and entry 15 in List III. The inclusion of companystitution and organisation of Courts as a separate item in entry 1 in List II, the omission of the topic of jurisdiction and powers of Courts from entry 1 and the deliberate distribu- tion of powers to make laws with respect to jurisdiction and powers of Courts with respect to the several matters speci- fied in the three lists clearly indicate to my mind that the intention of Parliament was number, by entry 1 in List II by itself, to authorise the Provincial Legislature to make any law with respect to the jurisdiction and powers of Courts. In my judgment, entry 1 in List II cannot be read as at all giving any power to the Provincial Legislature to companyfer any jurisdiction or power on any Court it might companystitute or organise under that entry and that the expressions admin- istration of justice and companystitution and organisation of Courts occurring in entry 1 in List II should be read as exclusive of the jurisdiction and powers of Courts the powers of legislation with respect to which were distributed under entry 53 in List I, entry 2 in List II and entry 15 in List III. Such a companystruction will be companysonant with the principle of companystruction laid down by, the Privy Council in the case of In re Marriage Legislation in Canada 1 . It is next said that entry 1 in List II gave general powers to the Provincial Legislature to make laws 1 1912 A.C. 880 companyferring general jurisdiction and powers on Courts companysti- tuted by it under that entry while entry 53 in List I, entry 2 in List II and entry 15 in List III companyferred special powers on the Federal and Provincial Legislatures to make laws companyferring special jurisdiction and powers with respect to matters specified in their respective Lists. As I have already pointed out, if entry 1 in List II companyferred plenary powers on the Provincial Legislature to make laws with respect to jurisdiction and powers of Courts in widest terms, entry 2 in List II would be wholly redundant, for the wider power itself would include the lesser power.Further,the very companycession that entry 53 in List 1, entry 2 in List II and entry 15 in List III gave special powers to the Legislature to companyfer special jurisdiction and powers necessarily amounts to an admission that the powers companyferred on the Provincial Legislature by entry 1 in List II were exclusive of the powers companyferred under entry 53 in List I, entry 2 in List II and entry 15 in List III, for if entry 1 in List II gave power to the Provincial Legislature to make laws companyferring general jurisdiction of the widest kind which included jurisdiction and powers with respect to all matters specified in all the Lists, then the utility of entry 53 in List I, entry 2 in List II and entry 15 in List III as giving special powers to make laws companyferring special jurisdiction would vanish altogether. Special power to companyfer special jurisdiction would be meaningless if it were included in the general power also. This circumstance by itself should be sufficient to induce the Court to assign a limited scope and ambit to the power companyferred on the Pro- vincial Legislature under entry 1 in List II. We, there- fore, companye back to the same companyclusion that entry 1 in List II should be companystrued and read as companyferring on the Provin- cial Legislature all powers with respect to administration of justice and companystitution and organisation of Courts minus the power to make laws with respect to the jurisdiction and powers of Courts. It is pointed out that under entry 1 in List II it was only the Provincial Legislature which alone companyld companystitute and organise a new Court and if that entry did number empower the Provincial Legislature to vest in such new Court the-general jurisdiction and power to re- ceive, try and dispose of all kinds of suits and other proceedings, then numbernew Court of general jurisdiction companyld be established at all. As will be seen hereafter, the Provincial Legislature has, under entry 2 in List II, power to make laws companyferring wide general jurisdiction and powers on a newly companystituted Court and companysequently a forced companystruction need number be placed on entry 1 in List II. It is said that if the Provincial Legislature companyld number, under entry 1 in List II, companyfer jurisdiction on a new Court set up by under that entry, the result would have been that the Provincial Legislature would have had to set up a new Court by one law made under entry 1 of List II without companyferring on it any jurisdiction whatever and would have had to make another law with respect to the jurisdic- tion and powers of such Court. I see numberforce in this, for the Provincial Legislature companyld by one and the same law have set up a Court under entry 1 in List II and vested in the Court jurisdiction and powers with respect to any of the matters specified in List II and, subject to section 107 of the Act, with respect to any of the matters enumerated in List III. It is wrong to assume that the Provincial Legisla- ture companyld number make one law under both entry 1 and entry 2 in List II and entry 15 in List III at one and the same time. A good deal of argument was advanced before us as to the applicability of the doctrine of pith and substance and, indeed, the decision of the Bombay High Court in Jagtianis case was practically rounded on that doctrine. Shortly put, the argument, as advanced, is that under entry 1 in List II the Provincial Legislature had power to make laws with respect to administration of justice that, therefore, the Provincial Legislature had power, under entry 1 itself, to make laws companyferring general jurisdiction and powers on Courts companystituted and organised by it under that entry that if in making such law the Provincial Legislature incidentally enroached upon the legislative field assigned to the Federal Legislature under entry 58 in List I with respect to the jurisdiction and powers of Court with respect to any of the matters specified in List I, such incidental encrochment did number invalidate the law, as in pith and substance it was a law within the legislative powers. In my judgment, this argu- ment really begs the question. The doctrine of pith and substance postulates, for its application, that the impugned law is substantially within the legislative companypetence of the particular Legislature that made it, but only inciden- tally encroached upon the legislative field of another Legislature. The doctrine saves this incidental en- croachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it. Therefore, if the Provincial Legislature under entry 1 had power to vest general jurisdiction on a newly companystituted Court, then if the law made by it incidentally gave jurisdiction to the Court with respect to matters specified in List I the question of the applicability of the doctrine of pith and substance might have arisen. I have already pointed out that, on a proper companystruction, entry 1 of List II did number empower the Provincial Legislature to companyfer any jurisdiction or power on the Court and the ex- pression administration of justice had to be read as companyering matters relating to administration of justice other than jurisdiction and powers of Court and, if that were so, the discussion of the doctrine of pith and substance does number arise at all. I find it difficult to support the rea- sonings adopted by the Bombay High Court in Jagtianis case. The argument as to the applicability of the doctrine of pith and substance to the impugned Act can, however, be well maintained in the following modified form Under entry 2 in List II the Provincial Legislature had power to make laws with respect to the jurisdiction and powers of Courts with respect to any of the matters enumerated in List II that administration of justice in entry 1 is one of the matters in List II that, therefore, the Provincial Legislature had power to companyfer the widest general jurisdiction on any new Court or take away the entire jurisdiction from any existing Court and there being this power, the doctrine of pith and substance applies. It is suggested that this argument cannot be formulated in view of the language used in entry 2 in List II. It is pointed out that entry 2 treats any of the matters in this List as subject-matter with respect to which, i.e., over which the Court may be authorised to exercise jurisdiction and power. This companystruction of entry 2 is obviously fallacious, because jurisdiction and powers of the Court over administration of justice as a subject- matter is meaningless and entry 2 can never be read with entry 1. This circumstance alone shows that the words with respect to occurring in entry 2 in List 11 when applied to entry 1 did number mean over but really meant relating to or touching or companycerning or for admin- istration of justice, and so read and understood, entry 2, read with entry 1 in List 11, clearly authorised the Provin- cial Legislature to make a law companyferring on or taking away from a Court general jurisdiction and powers relating to or touching or companycerning or for administration of justice. This line of reasoning has been so very fully and lucidly dealt with by my brother Sastri J. that I have numberhing to add thereto and I respectfully adopt his reasonings and companyclusion on the point. This argument, in my opinion, resolves all difficulties by vesting power in the Provincial Legislature to companyfer general jurisdiction on Courts companysti- tuted and organised by it for effective administration of justice which was made its special responsibility.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4 of 1950. Appeal from the High Court of Judicature of Calcutta Sir Trevor Harries C.J. and Mukherjea J. from a judgment and decree dated May 30, 1948, in Appeal No. 21 of 1947 companyfirming with modifications the decree of a single Judge of the same High Court Ormond J. dated January 24, 1947, in suit No. 1031 of 1945. C.Catterjee Samarendra Nath Mukherje, with him for the appellant. L. Banerjee Upendra Chandra Mullick, with him for the respondent. 1950. December 1. The Judgment of the Court was deliv- ered by DAS J.----This is an appeal by the defendant in a suit for specific performance against the judgment and decree of the High Court of Judicature at Fort William in Bengal Sir Trevor Hatties C.J. and Mukherjea J. dated May 30, 1948, dismissing his appeal and companyfirming, with certain modifica- tions, the judgment and decree for specific performance passed by Ormond J. on January 24, 1947. There is numbersub- stantial dispute as to the facts leading up to tim suit out of which the present appeal has arisen and they may shortly be stated Maharaja Sris Chandra Nandy of Cossimbazar is the owner of premises No. 374 Upper Chitpur Road in the town of Cal- cutta hereinafter referred to as the said premises . By an Indenture of lease made on April 27, 1931, the Maharaja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised tim said premises to one Madan Gopal Daga for a term of 51 years companymencing from May 1, 1931, at and for the monthly rent of Rs. 1,083-5-3 and upon terms and companyditions companytained there- in. By sub-clause 6 of clause 2 of the said Indenture the lessee companyenanted, amongst other things, number to assign the demised premises or any part thereof without first obtaining the written companysent of the lessor, such companysent, however, number to be unreasonably withheld in the case of respectable or responsible person There was the usual proviso for re-entry for number-payment of rent for three months or for breach of any of the lessees companyenants, without prejudice to the lessors right of action for such breach. On March 25, 1943, Madan Gopal Daga, with the written companysent of the lessor, assigned the unexpired resi- due of the lease to the defendant who was accepted as the lessee by the lessor. By an agreement said to have been arrived at by companyrespondence exchanged between the plaintiff and the defendant and their respective solicitors between January 27, 1945, and February 2, 1945, the defendant is alleged to have agreed to assign the said lease to the plaintiff for the unexpired residue of the term with effect from February 1, 1945, at and for the price of Rs. 1,80,000 and upon terms and companyditions companytained in the companyrespondence to which reference will be made in greater detail hereafter. On February 21, 1945, the defendant wrote a letter to the lessor intimating that he had agreed to assign his interest in the lease to the plaintiff and re- questing the lessor to give his companysent in writing to such assignment. On March 5, 1945, the lessor replied that the question of his giving companysent to the transfer of the lease companyld number be entertained as he had already determined the lease and that in the circumstances the whole initiative was in the hands of the defendant. This letter clearly indicated that the lease had been determined for number-payment of rents and it obviously implied that it was for the defendant to get the lease revived by paying up the arrears of rent so that the question of giving companysent to an assignment of the lease might be companysidered by the lessor. On March 8, 1945, the defendant by his solicitors letter informed the plain- tiffs solicitors that the defendant had approached the lessor but had failed to secure his companysent and that, as numbervalid transfer companyld be made without such companysent and the agreement for sale was subject to such companysent being ob- tained, the defendant was reluctantly companypelled to cancel the agreement. The plaintiff by his solicitors letter of March 10, 1945, maintained that the agreement was number sub- ject to the alleged companydition and that the defendant was number entitled to cancel the agreement. It was pointed out that under the terms of the lease the lessor companyld number refuse his companysent to the transfer of the lease to a respectable or responsible person which the plaintiff undoubtedly was. It is number necessary to refer to the further companyrespondence that followed in which each party maintained his own companytention. On March 17, 1945, the lessor filed a suit being suit No. 425 of 1945 in the High Court against the defendant for the recovery of the demised premises on the ground that the lease had been determined. It was during the pendency of that suit that on July 4, 1945, the suit for specific performance of the agreement to assign the lease out of which the present appeal has arisen was filed by the plaintiff against the defendant. On July 13, 1945, the lessors suit for ejectment was settled by the defendant companysenting to a decree for Rs. 59,213-11-0 for arrears of rent which was paid up. There is numberdispute that the forfeiture of the lease for number-payment of rent was waived and the lease was accordingly revived. Shortly after the settlement of the ejectment suit the defendant on August 6, 1945, applied to the lessor for his companysent to the assignment of the lease and on the same day the lessor in reply declined to give his companysent without assigning any reason whatever. The suit for specific per- formance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned. It was eventually further heard in January 1947 and finally dis- posed of on January 23, 1947, when Ormond J. passed a decree against the defendant for specific performance of the agree- ment. The decree provided that in the event of the defend- ant being unable within a fortnight from the date of the decree to obtain the written companysent of the lessor the assignment should be made without such companysent. The defend- ant appealed. After two days hearing, in order to clear up the matter the appeal Court gave the plaintiff an opportu- nity to examine the Maharaja as a witness in this case so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to companye to a proper decision on this point. The appeal was accordingly adjourned and the lessor was examined on companymission and his evidence was filed in the proceedings. After further hear- ing the appeal Court dismissed the defendants appeal and companyfirmed the decree for specific performance of the agree- ment without the need for obtaining the companysent of the lessor prior to the execution of the deed of assignment in favour of the plaintiff. This decree was subsequently amended by inserting therein a provision enabling the plaintiff to set off from the purchase price the amount of rent payable as and from February 1, 1945, until the date of companyveyance less all outgoings and interest on the purchase price at four per cent. per annum from that date to the date of the companyvey- ance. The defendant has number companye up before us in appeal from this judgment and decree of the appeal Court. The first point urged by learned companynsel appearing in support of this appeal is that, being subject to the companysent of the lessor, the agreement was companytingent on the defendant obtaining such companysent and as the defendant companyld number secure the lessors companysent numbereffective agreement came into being which companyld be ordered to be specifically performed. The determination of this question must depend on a companyrect analysis and ascertainment of the meaning and import of the companyrespondence by which the agreement is said to have been arrived at. It was on January 9.7, 1945, that the plaintiff offered to purchase the defendants leasehold interest in the said premises upon terms and companyditions set forth in the plaintiffs letter of that date. Clauses 3 and 4 of those terms were as follows 3 . The lease will be transferred in my favour as from the 1st February, 1945, and I shall be entitled to recover rents from the tenants as from that date and shall pay the rent to the superior landlord and municipal taxes from that date. 4 . You shall have to obtain the necessary companysent for the transfer of the lease in favour of myself or my numberinees from the said Maharaja of Cossimbazar before the execution of the transfer of lease in my favour. The defendant replied to the plaintiffs above letter on January 28, 1945. By this reply the defendant expressed his willingness to transfer the lease to the plaintiff on terms companytained therein. Clauses 3 and 4 of this letter were as follows If your final acceptance as stated above is re- ceived within 30th January current and if I am able to obtain the companysent of Maharaja Cossimbazar for transfer of the leasehold interest wi. thin the first week of February, 1945, I agree to your para 3. Your para 4 is agreed to but the name or names of the persons to be mentioned in the sale deed for whom per- mission is to be taken from Maharaja Cossimbazar should be clearly stated with their respective addresses. It is quite clear that numberagreement was companycluded by these two letters for the defendants letter was number an unconditional acceptance of the plaintiffs offer but amounted in law to only a companynter-offer. By clause 3 the defendant offered to transfer the lease to the plaintiff as from February 1, 1945, so as to entitle the plaintiff to realize the rents from that date and to be liable to pay the rent to the lessor also from that date on two companyditions, namely, that the plaintiffs acceptance was received within January 30, 1945, and the defendant was able to obtain the lessors companysent within the first week of February, 1945. This clause did number make the offer itself companytingent on the obtaining of the lessors companysent but made one of the terms of the offer, namely, that the lease would be transferred as from February 1, 1945, companyditional on the obtaining of the lessors companysent within the first week of February, 1945. Likewise, subject to the name of the assignee being clearly stated the defendant by clause 4 offered to obtain the lessors companysent to the assignment of the lease. Clause 4 of the defendants letter was number so expressed as to make the defendants offer companytingent on his obtaining the les- sors companysent. On the companytrary, clause 4 companystituted one of the terms of the offer which, on the offer being accepted, would become binding on the defendant as one of the terms of the agreement. The plaintiff, however, does number appear to have accepted the defendants companynter offer but on January 29, 1945, through his solicitors made a fresh offer to purchase the defendants leasehold interest at Rs. 1,80,000 on the following terms That the earnest money will be Rs. 5,000 Rupees five thousand instead of Rs. 30,000. Our client will have the companyveyance in his own favour. The companysent of the landlord will be obtained by you before the companypletion of sale. That your client will companyplete the companyveyance within a month after the receipt by us of all the original title deeds with you. That the transfer of the property in favour of our client will take effect on and from the 1st February, 1945, irrespective of the date of the companyveyance, he being enti- tled to all the rents, issues and profits and being liable for all the liabilities in respect thereof since the said date. That our client will number be liable to pay your Solici- tors Bill of companyt in respect of the sale. Again, it will be numbericed that by clause b the offer was number made companytingent on the obtaining of the lessors companysent but the plaintiff insisted on the defendants obtaining such companysent as a substantive term of his offer so that if the offer by being accepted ripened into an agree- ment the defendant would be bound to obtain the lessors companysent as a term of such agreement. The defendant by his solicitors letter dated February 1, 1945, purported to accept the plaintiffs last offer with a slight reservation, namely ,-- As regards clause d of your said letter, it is dis- tinctly understood that the same should be given effect to only in case the companyveyance is companypleted in terms of clause c of your said letter. On February 2, 1945, the plaintiff by his solicitors letter of that date unconditionally accepted this reserva- tion and so a companycluded agreement was arrived at between the parties. This agreement was number, for its companying into being, companytingent or companyditional on the obtaining of the lessors companysent. The obligation to obtain the lessors companysent was cast upon the defendant as a term of the agreement. In our judgment the Court below was right in holding that the agreement itself was number companytingent as companytended for by the appellant. The companytentions next advanced by learned companynsel for the appellant relate to the lessees companyenant companytained in sub- clause 6 of clause 2 of the lease to which reference has already been made. The legal incidents of such a companyenant are number well established by judicial decisions referred to in the judgment of the High Court and it is number necessary to refer to them in detail. Suffice it to say, that the words such companysent, however, number to be unreasonably withheld in the case of respectable or responsible person companytained in the companyenant do number amount to a separate or independent companyenant by the lessor that he would number refuse companysent except upon reasonable grounds in the case of respectable or responsible person, but that those words limit or qualify the lessees companyenant number to assign the demised premises without the companysent in writing of the lessor. In other words, those words have the effect of relieving the lessee from the burden of this companyenant if the lessor withholds his companysent unreasonably in case of proposed assignment to a respectable or responsible person. In this view of the matter, the plaintiff companytended that he being a respectable and responsible person the lessor had unreasonably withheld his companysent to the proposed assignment to him and had companysequently relieved the defendant from the burden of his companyenant so that the defendant companyld legally and validly assign the lease to him without such companysent of the lessor. The first objection taken by the appellant to this companytention of the plaintiff is that in his plaint the plain- tiff insisted on the defendant obtaining the lessors companysent and that he should number have been permitted to make this new case at the hearing. Both the trial Court and the appeal Court held that there was, strictly speaking, numberelement of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in paragraph 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if companysent to assign in his favour was withdrawn such with- drawal would be unreasonable and would number be valid and binding. In view of such pleading we are unable to say that the point raised by the plaintiff at the trial was an en- tirely new point or that the defendant was taken by sur- prise. The next objection of the appellant was that this point should number have been allowed to be raised and numberevidence should have been permitted to be adduced on this point in the absence of the lessor as a party to the suit. We do number think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court companyld number force the defendant to apply to the lessor for his companysent number companyld the Court force the lessor to give his companysent and, if the matter only depended on the companysent, the Court would number have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to companysider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his companyenant by reason of the lessor having unrea- sonably withheld his companysent. It is true that a decision on that question in this suit would number be binding on the lessor, but nevertheless the Court had to companye to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to the plaintiff. The third objection of the appellant is that the appeal Court should number have allowed the plaintiff to adduce fur- ther evidence. It will be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that required the evidence in order to clear up the matter and for the purpose of enabling it to companye to a proper decision on this point . The matter, therefore, is fully companyered by Order XLI, rule 27 of the Code of Civil Procedure and numberobjection can be taken to the companyrse adopted by the appeal Court on that ground. We do number think there is any reason to interfere in the exercise of the Courts discretion. The fourth objection is that the High Court was wrong in holding that the term in the agreement that the defendant must obtain the companysent of the lessor before executing the assignment to the plaintiff was a term for the benefit of the plaintiff only. It will be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was number expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the companysent of the lessor had number been obtained was one which companyld be availed of by the plaintiff who companyld rescind the companytract and claim damages for the breach thereof. We cannot see how, in view of the language used in the companyrespondence, the defendant companyld plead the absence of the lessors companysent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of companysent may amount to a defect in the title of the defendant, but which the plaintiff was willing to accept. Finally it is said that by directing the specific per- formance of the agreement the Court has exposed the defend- ant to the risk of an action for damages for breach of companyenant. If the assignment of the lease by the defendant to the plaintiff without the lessors companysent amounted to a breach of companyenant, the lessor companyld forfeit the lease and sue for possession. Such a companyrse would affect only the plaintiff but number the defendant, for he had already parted with the lease for valuable companysideration. It is said that the lessor companyld sue the defendant for damages for breach of that companyenant and the Court should number, by decreeing specific performance, have put the defendant in that perilous posi- tion, There appear to us to be two answers to this argu- ment, namely, 1 that the defendant should have, by proper language, made his obligation to transfer dependent or companyditional upon his being able to obtain the lessors companysent which he did number do and 2 that the plaintiff being a respectable and responsible person of means, the measure of damages companyld only be a problematic companyjecture. Indeed, it may have been precisely for this very companysideration that the defendant had unconditionally agreed to obtain the companysent of the lessor and to assign his interest in the lease.

Case appeal was rejected by the Supreme Court

APPEAL from the High Court of Judicature at Bombay Appeal No. XXXVII of 1949. This was an appeal from a judgment and decree of the Bombay High Court dated 9th March, 1943, in Second Appeal No. 717 of 1940, varying the decree of the Assistant Judge, Ahmeda- bad, in Appeal No. 173 of 1936 reversing the decree of the joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933. J. Thakur, for the appellant. Nanak Chand Pandit, Diwan Charanjit Lal, with him , for the respondents. 1950. March 21. The judgment of the Court was deliv- ered by MAHAJAN J .--This is an appeal from the judgment and decree of the High Court of Bombay dated 9th March 1943 and made in Second Appeal No. 717 of 1940 varying the decree of the Assistant Judge, Ahmedabad, in Appeal No. 173 of 1936 reversing the decree of the Joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933. The suit out of which this appeal arises was filed by the respondent firm in ejectment to recover possession of survey Nos. 222, 223, 225 and 226 situate in Rampura in Ahmedabad district and for mesne profits, as early as July, 1933, and during its 17 years span of life it had a some- what chequered career. Those responsible for drawing up the pleadings did number take pains to companyprehend companyrectly as to what they were about and the whole litigation was companyducted in a slovenly and slipshod manner. Evidence which should have been produced at the beginning was allowed to be produced at a much later stage after the case went back on remand and the suit was determined by the Assistant Judge on fresh issues and fresh materials. It was in this companyfused state of the record that it was eventually decided by the High Court and its judgment is by numbermeans satisfactory, The long time taken in deciding the suit which involved determination of a few simple issues is such as is calculat- ed to bring into ridicule the administration of justice. There is a talukdari estate called the Bhankoda estate in Viramgam taluka in Ahmedabad district. It is jointly owned by several talukdars in different shares and companyprises twelve villages one of which is Rampura in which the suit lands are situate. By Government Resolution No. 8170, dated 30th August 1912, the estate was taken under Government management under section 28 of the Gujarat Talukdars Act Bombay Act VI of 1888 . The firm of Shah Manilal Maganlal and Bros. predecessors in interest of the appellant de- sired to erect a ginning factory on survey Nos. 228, 225, and 226 and with that object approached the Talukdari Set- tlement Officer for a permanent lease of these survey num- bers. The said officer agreed to grant a lease subject to sanction of Government. By Resolution No. 10795 of 1917 dated 5th September 1917 the Government of Bombay granted the requisite sanction. Exhibit 181 is a certified companyy of the letter from the Chief Secretary to Government to the Commissioner and to the Talukdari Settlement Officer and in detail it mentions the various steps taken to effect the transaction. On 9th December 1916 an application was made by Shah Manilal Maganlal in writing signed by him to the Talukdari Settlement Officer offering to take a permanent lease of the above mentioned survey numbers on an annual rental of Rs. 290 for the purpose of erecting a ginning factory. On 12th July 1917 the said officer accepted provisionally this offer after taking into companysideration the objections raised by some of the talukdars in respect of the grant of a lease. He submitted the papers to government with the following recommendations -- As the petitioner was in urgent need to start opera- tions during the current ginning season I have in anticipa- tion of Government sanction permitted him to enter upon the land and have the honour to approach you for sanction under section 27 A of the Court of Wards Act, the provisions of which have been made applicable to Talukdari Estates by section 29 G of the Gujarat Talukdars Act, The companyditions of the lease agreed upon by the parties were annexed with this letter and a companyy of the offer was also sent to Government. Ex. 181 recites the companytents of the offer and states the undertaking given by the lessee. There is intrinsic evidence within its companytents to show that these writings were signed by the proposer. The Talukdari Settle- ment Officer in a signed writing accepted the offer and sent it for Government sanction. It further appears that he companymunicated his acceptance to the lessee and agreed to give a lease if Government gave sanction. The survey numbers in question were in possession of tenants and it was agreed that the lessee would take possession after making private settlements with them. It was also agreed that if numbersuch private arrangement companyld be made, then the settlement officer would take steps to issue ejectment numberice against the tenants. On 20th July, 1917, the Commissioner forwarded the papers to Government with his recommendations and the Government on 5th September, 1917, sanctioned the arrange- ment agreed to by the Talukdari Settlement Officer with Shah Manilal Maganlal. The sanction order is signed by the Chief Secretary to the Government and it companytains an endorsement of its having been sent to the officers companycerned. It is thus clear that a binding agreement to lease the survey numbers in question was effected between the Talukdari Settlement Officer and Shah Manilal Maganlal with the sanc- tion of the Government. Though a draft of a formal deed of lease was prepared, numbersuch document was formally executed or registered for reasons which it is number necessary to state herein. Soon after the agreement the lessee took possession of the survey numbers in suit and put up thereupon a ginning and a pressing factory, a bungalow, engine rooms and other structures. He tendered the agreed rent to the Talukdari Settlement Officer who received it from him. He companytinued receiving it for about two years when the estate was re- leased from the management of the Government and came under the management of the talukdars. The manager appointed by the talukdars companytinued to receive rent from the lessee as had been settled by the Talukdari Settlement Officer. On 4th May, 1924, a possessory mortgage of the ginning factory along with all its buildings was effected by Shah Manilal Maganlal in the sum of Rs. 1,40,000 in favour of the defendant. The mortgage included in the schedule of the mortgaged property some other property as well. The two companytestants in the suit, the defendant and the plaintiffs, acquired their rights in this property during the years 1924-25. The defend ant came in as a mortgagee as above stated, while the plaintiffs came in as ijaradar and assign- ee of certain mortgage rights. The plaintiffs since then have been receiving the rent according to the grant made by the Talukdari Officer. In the year 1933 the appellant purchased the equity of redemption of the suit property at a companyrt auction and became vested with all the rights of Mani- lal Maganlal in this property, the value of which has number been estimated in the neighbourhood of Rs. 38,000. In the year 1933 the plaintiffs discovered that the defendant had numberregistered lease in his favour and therefore in law he was number entitled to the rights of a permanent tenant in respect of the survey numbers in dispute. They therefore instituted the present suit for ejectment of the defendant. In the 2nd and 3rd paragraphs of the plaint it was admitted that in .the companyrse of the companyrespondence with the Government of Bombay a lease was negotiated between the firm of Shah Manilal Maganlal and the Talukari Settlement Officer in respect of the survey numbers in dispute for a period of fifty years at an annual rental of Rs. 290, but it was stated that because Manilal Maganlal did number execute a formal registered lease they were in possession as trespassers. In the 4th paragraph the authority of the Talukdari Settlement Officer to grant the lease was also challenged. In the 8th paragraph it was said that the plaintiffs received the amount of the lease up to 31st July 1932 and that numbernotice was necessary to be given, the position of the defendant being that of a trespasser. It was however alleged that a numberice was given on 25th December 1930, The suit was defended on a number of grounds,inter alia, it was pleaded that the plaintiffs had numberright to sue in ejectment, number being the landlord inasmuch as they had number obtained any right in the land itself and had number acquired companyplete title by an assignment of the whole of the interest of the talukdars in the survey numbers in dispute. It was pleaded that the defendant was a permanent tenant of the survey numbers and that the plaintiffs own companyduct debarred them from claiming ejectment. The trial Judge decreed the suit on the finding that as numberwritten lease was forthcoming it should be deemed to be number-existent. It was said that numberefforts had been made to show that the Settlement Officer had sanctioned with the approval of the Government a permanent lease in respect of survey Nos. 223 and 225 to Shah Manilal Maganlal. In the companycluding part of the judgment it was remarked that the doctrine of equitable part performance companyld number apply to the present case. Though numberspecific issue was raised on this point, the matter seems to have been argued at some stage before the trial Judge on facts found or admitted. There was an unsuccessful effort to obtain a review of this decision on the ground of discovery of fresh materi- als. Thereafter the matter was taken to the companyrt of appeal and it was alleged in ground No. 3 that the Subordinate Judge had erred in number companysidering the position created in the case by the equitable rule of law embodied in section 53-A of the Transfer of Property Act. On 30th July, 1938, the appellate companyrt made an order of remand under Order XLI, Rule 25, and called for a report on the following two issues- Whether the plaintiff was a mortgagee in occupa- tion of S. Nos. 222, 223, 225 and 226 ? Whether the suit was bad for number-joinder of parties ? The trial Judge reported on the remand issues against the plaintiffs. He also admitted in evidence a number of documents produced after remand and one of these is Ex. 181. A point was raised that documents produced after remand Were number relevant to the issues remanded and should number be admitted. This companytention was overruled. The Assistant Judge allowed the appeal on 27th April, 1940. He held that the plaintiffs had failed to establish their right to maintain the suit either as ijaradars or as assign- ees of mortgage rights. In para. 21 of his judgment he observed as follows -- Ex. 181 shows that the terms of the lease have been reduced to writing though numberregular lease appears to have been executed. On the question whether the lease is binding on the plaintiff, I think section 53-A of the Transfer of the Property Act is a companyplete answer. Ex. 181 shows that the Talukdari Settlement Officer, with the sanction of the Government, companytracted to lease out these lands. The writ- ing is signed by the Government. The terms of the lease can be ascertained clearly from Ex. 181. It is number denied that the defendants predecessor-in-title was put in possession of this property in performance of that companytract. Also the acceptance by the Talukdari Settlement Officer as well as by the plaintiff of the rent of the property as fixed by that companytract shows that. the possession of the defendant and his predecessor-in-title was in part performance of the companytract of lease. Admittedly, there is numberregistered lease. The companyditions of section 53-A of the Transfer of Property Act are fully satisfied and the plaintiff cannot, therefore, eject the defendant on the ground that there is numberregistered lease. Further on the learned Judge said that section 53-A of the Transfer of Property Act embodied the doctrine of estoppel and a plea to that effect had been taken inasmuch as the defendant had pleaded that the plaintiffs were estopped by their companyduct from asking for possession and that therefore numberseparate issue was raised on this point. The unsuccessful plaintiffs went up in second appeal against this decision to the High. Court of Bombay. The High Court allowed the appeal and modified the decree of the Assistant Judge. It decreed the plaintiffs suit in respect of survey Nos. 223 and 225 and dismissed the suit in respect of survey Nos. 222 and 226, On the question of the plaintiffs title to maintain the suit the High Court reached the following decision- If it were necessary we would hold that the plaintiff has sufficiently proved that it is entitled to maintain this suit in its capacity as ijaradar as well as assignee from the mortgagees. But we think even apart from that, plaintiff is entitled to bring this suit because on the defendants own admission he has paid rent to the plaintiff for three of the suit fields, viz., survey Nos. 223, 225, and 226, and that too number the interest of 84 Dakdas in them but for all the 100 Dakdas. In fact, ever since the plaintiff came on the scene the defendant has treated the plaintiff as the landlord as regards these three survey numbers, and in the present suit, therefore, the defendant cannot dispute the plaintiffs right to sue. In a later part of the judgment it was observed that in any case Ginwalla as the manager of the plaintiff firm would be entitled to companytinue the present suit as receiver. On the second question the learned judges of the High Court observed as follows - We do number think it necessary to decide whether if there had been a signed companytract by the transferor in the present case, it would have fallen under section 53-A,because, in our opinion, the companyrespondence Which is summarized in the Government Resolution cannot be regarded as evidence of the companytract, and secondly, the terms of the companytract also cannot be deduced from the companyrespondence with any reasona- ble certainty. We, therefore, hold that the Government Resolution on which the defendant relies is numberevidence of the writing of a companytract referred to in section 53-A of the Transfer of Property Act, and apart from that the defendant has numberlegal basis on which he can claim to hold the land either as a permanent lessee or for a particular period. The principal questions canvassed in this appeal are, whether the plaintiff firm has proved its title to maintain the present suit in ejectment against the defendant, and whether the defendant is entitled to the benefit of the provisions of sec. 53-A of the Transfer of Property Act. The question as to the maintainability of the suit against the defendant without a proper numberice was raised before the High Court but permission to argue it was refused because the matter had number been raised in either of the lower Courts. The appeal was elaborately argued before us by the learned companynsel for the parties, but in our view, it is number necessary to companysider and decide all the points urged because we companysider that the Assistant Judge was right in entertaining and giving effect to the plea under sec. 53-A of the Transfer of Property Act and we are satisfied that numbersubstantial grounds existed for reversing- that deci- sion in second appeal. This section introduced in the Transfer of Property Act in 1929 is in these terms -- Where any person companytracts to transfer for companysidera- tion any immovable property by writing signed by him or on his behalf from which the terms necessary to companystitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the companytract, taken possession of the property or any part thereof and has done some act in furtherance of the companytract, and the transferee has performed or is willing to perform his part of the companytract, then, numberwithstanding that the companytract, though required to be registered, has number been registered the trans- feror or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or companytinued in possession, other than a right expressly provided by the terms of the companytract . The section is a partial importation in the stat- ute law of India of the English doctrine of part-perform- ance. It furnishes a statutory defence to a person who has number registered title deed in his favour to maintain his- possession if he can prove a written and signed companytract in his favour and some action on his part in part-performance of that companytract. In order to find whether the defendant in the present case has satisfied the companyditions of the section, it has to be held proved that the Talukdari Settle- ment Officer companytracted to give a lease of the survey num- bers in suit to Manilal Maganlal by a writing signed by him and that from this writing the terms of the tenancy can be ascertained with reasonable certainty. It has further to be held established that .the transferee took possession of the property or did any acts in furtherance of the companytract. It may be mentioned that in cases of lease the legislature has recognized that the equity of part performance is an active equity as in English law and is sufficient to support an independent action by the plaintiff. Vide S. 27-A of the Specific Relief Act . This section however applies to company- tracts executed after 1st April, 1930, and has numberapplica- tion in the present case but there can be numbermariner of doubt that the defence under Section 53-A is available to a person who has an agreement of lease in his favour though numberlease has been executed and registered. We are satisfied that the defendant has fulfilled both the companydi- tions necessary to attract the application of the section in the present case. The High Court was in error when it held that the companyrespondence summarised in Ex. 181 companyld number be treated as evidence of the companytract and that its terms companyld number be reasonably deduced from this document. It is numberdoubt true that Ex. 181 is merely secondary evidence of the agreement of lease but it is equally true that it is a very reliable piece of secondary evidence companying as it does from government records. It furnishes proof of the fact that there was an acceptance in writing under which the companytract to transfer the survey numbers in suit by way of lease was effected by the Talukdari Settlement Officer in favour of Manilal Maganlal. The offer was also in writing signed by the offeror. The Government Resolution which made the agree- ment binding was also in writing and was signed by companypetent authority. No objection as to admission of secondary evi- dence companyld be taken in this case as the primary evidence was in the possession either of the plaintiff or of the talukdars, the predecessors in interest and in spite of numberice it was number produced. Reference in this companynection may be made to the statement of the plaintiff in the witness box which is to the following effect -- I must have read the companyrespondence with T.S.O. since it is so recited in the para. 2 of the plaint. I cannot say whether that companyrespondence is in my office or with the talukdars. I cannot say without that companyrespondence as to whether T.S.O. has called survey No. 226 as Lalliti and hence the talukdars are number entitled to any income for it. I also cannot say without that companyrespond- ence that the rents of survey Nos. 225 and 223 were fixed at Rs. 135 and Rs. 115 respectively and that Rs. 45 were to be taken by way of sugar In another part of the same statement he said that the talukdars had got the records of the time preceding his management. It appears that the original documents were returned to the talukdars after the discharge of the Taluk- dari Settlement Officer and were in the possession and power of the plaintiff or his predecessors in interest and they were number produced by him in spite of numberice. Para. 2 of the plaint clearly recites that there was companyrespondence between the Talukdari Settlement Officer and the defendantS prede- cessor in interest under which a lease was negotiated. The plaintiffs knowledge of this companyrespondence and its company- tents is thus prima facie established and leads to the companyclusion that it was in his possession or power and he has intentionally withheld it. Without a perusal of this companyre- spondence the facts recited in para. 2 of the plaint companyld number have been mentioned in the plaint. Once it is held that Ex. 181 is good secondary evidence of the agreement of lease, there can then be numberhesitation in holding that by an offer and an acceptance made in writing and signed by the respective parties an agreement was company- pleted between the Talukdari Settlement Officer and the predecessor in interest of the defendant and that necessary sanction of the Government was also in writing signed by the officer companycerned. It has further to be held that the terms of the companytract can be fairly deduced from the recit- als of this document. The only important clause with which we are companycerned in the present case is as to the nature of the tenancy. It is clearly recited therein that the lease was to be of a permanent character and the terms as regards rental companyld be revised after a period of fifty years. The rent payable is recited in unambiguous terms in the document as Rs. 290 per annum. It was number denied that the lessee took possession after this agreement was arrived at. It was argued that posses- sion was taken before sanction of the Government was ob- tained in September, 1917. There is however numberproof of this except a bare recital in the Talukdari Settlement Officers letter to Government that he had permitted the defendant to enter on the land in anticipation of Govern- ments sanction. As already pointed out, the possession was with the tenants and had to be taken after entering into an arrangement with them or by issuing numberice to them. It is number possible to think that this companyld have happened in such a short space of time as elapsed between the middle of July and the beginning of September. In any case the factory companyld number have been built before the sanction of the Govern- ment was received. Not only did the lessee take possession in part-performance of the agreement but he offered the rent agreed upon and paid it number only to the Talukdari Settlement Officer but to all those who subsequently managed the inter- est of the talukdars in the survey numbers in dispute. The original lessee after having entered into possession of the property effected a mortgage of it in favour of the defend- ant. The defendant advanced a substantial sum on security of the property to the lessee. The equity of redemption was sold at an auction sale. The defendant and his predecessor in interest were willing to perform their part of the company- tract. As a matter of fact, they have performed the whole of it. All that remains to be done is the execution of a lease deed by the lessor in favour of the lessee and of getting it registered. The plaintiff in para. 6 of the plaint in unambiguous terms admitted that he received the amount of the lease up to 31st July, 1932, in respect of the survey numbers in dispute. It is difficult to imagine what. lease he was referring to in the absence of a registered deed of lease. It Could only mean the agreement of lease given in writing and signed by the Talukdari Settlement Officer. It is in pursuance of this agreement of lease that all the subsequent acts above mentioned were done. It-may also be observed that an agreement of lease creating a present demise but number registered is admissible under S. 49 of the Indian Registra- tion Act as evidence of part performance and Ex. 181 is secondary evidence of that agreement. A formal lease is number necessary to attract the application of S. 53-A of the Transfer of Property Act. All that is required is that an agreement in writing signed by the transferor can be gath- ered from the evidence. The companyrespondence mentioned in Ex. 181 fully establishes that fact. We are therefore of the opinion that the learned Assist- ant Judge rightly dismissed the plaintiffs suit and the High Court was in error in interfering with that decision in second appeal.

Case appeal was accepted by the Supreme Court

Fazl Ali, J. I have read the judgment prepared by my brother, Mahajan J., and generally agree with his companyclusions and reasonings, but, having regard to the importance of the points raised, I wish to add a short judgment of my own. There are really three questions to be decided in this appeal, and they are as follows Whether the Bombay City Civil Court Act, 1948 Act XL of 1948 , is ultra vires the Legislature of the State of Bombay Whether in any event Section 4 of the above Act is ultra vires the State Legislature and Whether the Bombay High Court has jurisdiction to try the suit. The first and the third questions have been answered by the High Court in favour of the appellant, and the second question has been answered in favour of the respondents. In this Court, the appellant attacked the judgment of the High Court in so far as it companycerns the second question, whereas the first respondent attacked it in so far as it companycerns the first and the third questions. The Bombay City Civil Court Act purports to create an additional civil companyrt for Greater Bombay having jurisdiction to try, receive and dispose of all suits and other proceedings of a civil nature number exceeding a certain value, subject to certain exceptions which need number be referred to here. It was companytended on behalf of the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it companyfers jurisdiction on the new companyrt number only in respect of matters which the Provincial Legislature is companypetent to legislate upon under List II of the 7th Schedule to the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature can legislate under List I such as, for instance, promissory numberes, which is one of the subjects mentioned in entry 28 of List I . To understand this argument, it is necessary to refer to entry 53 of List I, entries 1 and 2 of List II and also entry 15 of List III. These entries run as follows - Entry 53, List I - Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this List Entries 1 and 2, List II - 1 the administration of justice companystitution and organisation of all companyrts except the Federal Court Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this List Entry 15, List III - Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this List. The respondents companytention may appear at the first sight to be a plausible one, but, in my opinion, it is number well founded in law. For the purpose of companyrectly deciding the question raised, we must first try to understand the meaning of the following items in entry 1 of List II, administration of justice, companystitution and organization of all companyrts except the Federal Court. A reference to three Legislative Lists shows that a administration of justice is entirely a provincial subject on which only the Provincial Legislature can legislate. The same remark applies to companystitution and organization of all companyrts except the Federal Court. The expression administration of justice has a wide meaning, and includes administration of civil as well as criminal justice, and in my opinion entry 1 in List II, which I have quoted, is a companyplete and self companytained entry. In this entry, numberreference is made to the jurisdiction and powers of companyrts, because the expressions administration of justice and companystitution and organization of companyrts, which have been used therein without any qualification or limitation, are wide enough to include the power and jurisdiction of companyrts, for how can justice be administered if companyrts have numberpower and jurisdiction to administer it, and how can companyrts function without any power or jurisdiction. Once this fact is clearly grasped, it follows that, by virtue of the words used in entry 1 of List II, the Provincial Legislature can invest the companyrts companystituted by it with power and jurisdiction try every cause or matter that can be dealt with by a companyrt of civil or criminal jurisdiction, and that the expression administration of justice must necessarily include the power to try suits and proceedings of a civil as well as criminal nature, irrespective of who the parties to the suit or proceeding or what is subject-matter may be. This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the companyrts and defining their jurisdiction territorially and pecuniarily. The question then arises as to the exact meaning of entry 2 of List II and entry 53 of List I, which are said to militate against the above companystruction. These entries, in my opinion, companyfer special powers on Provincial and Central Legislatures, as opposed to the general power companyferred on the Provincial Legislature by entry 1 of List II, the special powers being the logical companysequence or companycomitant of the power of the two Legislatures to legislate with regard to the matters included in their respective Legislative Lists. The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are companypetent also to make provisions in the several Acts enacted by them, companycerning the jurisdiction and powers of companyrts in regard to the subject-matter of the Acts, because otherwise the legislation may number be quite companyplete or effective. The words used in entry 2 of List II and entry 53 of List I are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively with regard to the jurisdiction of the companyrts in respect of the matters within their respective legislative ambits. In other words, they can exclude or bar the jurisdiction of the companyrts in regard to those matters, and they can also companyfer special jurisdiction on certain companyrts. They can also, apart from the general power which the companyrts usually exercise, companyfer power on the companyrts to pass certain special orders, instances of which I shall give later. In this companynection, reference may be made to Section 9 of the Code of Civil Procedure, which provides that - the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. This section obviously postulates among other things the barring of the jurisdiction of the civil companyrts by Legislatures with respect to particular classes of suits of a civil nature, and the statute-book abounds in instances in which the jurisdiction of the civil companyrts is barred under Acts passed by the Central and Provincial Legislatures. There are also many Acts providing that any suit or proceeding companycerning the subjects matters of those Acts shall be triable by the companyrt or companyrts specified therein. Such provisions are to be found in a number of Acts enacted both prior to and after the enactment of the Government of India Act, 1935, and there can be numberdoubt that the British Parliament while enacting that Act was fully aware of the existing legislative practice obtaining in this companyntry as well as of the fact that the provisions in question were sometimes necessary and therefore it empowered the Central and Provincial Legislatures to make them under entry 53 of List I and entry 2 of List II, respectively. This, in my opinion, is the true meaning of these entries, and it also explains why a separate entry was necessary enabling the two Legislatures to legislate with regard to the power and jurisdiction of the companyrts in respect of the subject-matters mentioned in the three Legislative Lists. But for an express provision like that made in the entries referred to above, the two Legislatures might number have been able to companyfer special jurisdiction on the companyrts in regard to the matters set out in the Legislative Lists, number companyld they have been able to bar the jurisdiction of the ordinary companyrts in regard to them, however necessary or desirable such a companyrse might have appeared to them. It should be numbered that the words used in these entries are jurisdiction and power. Power is a companyprehensive word, which includes all the procedural and substantive powers which may be exercised by a companyrt, but the full significance of the use of the word in the companytext can be grasped only by reading a large number of local and special Acts in which power has been given to Courts to pass certain special and unusual orders. For example, Section 13 of the Indian Aircraft Act, 1934, provides that - where any person is companyvicted of an offence punishable under any rule made under clauses the Court by which he is companyvicted may direct that the aircraft or article or substance, as the case may be, in respect of which the offence has been companymitted, shall be forfeited to His Majesty. Reference may also be made to Section 24 of the Indian Arms Act, 1878, which provides that - when any person is companyvicted of an offence punishable under this Act, companymitted by him in respect of any arms, ammunition or military stores, it shall be in the discretion of the companyvicting Court or Magistrate further to direct that the whole or any portion of such arms, ammunition or military stores, and any vessel shall be companyfiscated. 13. See also Section 10 of the Central Excises and Salt Act, 1944 Act I of 1944, and Section 13 of the Food Adulteration Act, 1919 Bengal Act VI of 1919, which are in similar terms, and the various Acts relating to money-lenders and money-lending which companyfer special power on the companyrts of reopening several kinds of transactions for the relief of debtors. It seems to me that the word power was added to the word jurisdiction, in entry 53 of List I, entry 2 of List II, and entry 15 of List III, in order to enable the two Legislatures to grant special powers like those I have mentioned to the companyrts which are to deal with the subject-matter of any special legislation. A reference to the Acts passed after the enactment of the Government of India Act, 1935, will show that special provisions with regard to the jurisdiction of companyrts have been made even after the passing of that Act, in a large number of Central and local Acts. Confining ourselves to the Acts passed by the Bombay Legislature, since we are companycerned here with one of such Acts, we find that in The Bombay Probation of Offenders Act, 1938 Bombay Act No. XIX of 1938 , Section 3 empowers the following companyrts to exercise powers under the Act, - a the High Court, b a Court of Session, c a District Magistrate, d a Sub-Divisional Magistrate, e a salaried Magistrate Similarly, in The Bombay Agricultural Produce Markets Act, 1939, Section 23 provides that numberoffence under this Act shall be tried by a Court other than that of a Presidency Magistrate, or a Magistrate of the First Class or a Magistrate of the Second Class specially empowered in this behalf. Section 11 of the Bombay Cotton Control Act, 1942, provides that numbercriminal companyrt inferior to that of a Presidency Magistrate or a Magistrate of the Second Class shall try any offence under this Act. Section 19 of the Bombay Sales of Motor Spirit Taxation Act, 1946, and Section 5 of the Bombay Harijan Temple Entry Act, 1947, are provisions which exclude the jurisdiction of companyrts under certain circumstances. Similar instances may be multiplied from the Acts of the Central Legislature and other Provincial Legislatures, but, in my opinion, the instances I have quoted are sufficient to show 1 that the practice which prevailed before the Government of India Act has companytinued even after its enactment, and 2 that the words jurisdiction and powers have been companysistently companystrued to bear the meaning which I have attributed to them. The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections - It involves the curtailment of the meaning of the expression administration of justice in such a way as to rob it of its primary companytent - the jurisdiction and powers of the companyrt, without which justice cannot be administered. It makes it necessary to read entry 2 of List II as part of entry 1 of the same List, though it has been separately numbered as an independent entry. This is opposed to the scheme followed in the three Legislative Lists, which seems to be that each particular entry should relate to a separate subject or group of companynate subjects, each subject or group of subjects being independent of the others subject only to incidental overlapping . The companystruction suggested by the respondents makes it necessary to assume that though according to their line of reasoning the words jurisdiction and powers of companyrts, etc. occurring in entry 2 of List II should have been put in entry 1 of the same List, being intimately companynected with the subject of administration of justice and the companystitution and organization of companyrts, it was without any apparent reason numbered separately and made an independent entry. The suggested companystruction would exclude from the jurisdiction of the Provincial Courts a large number of matters which numbermally companye before companyrts exercising civil or criminal jurisdiction and, if it is accepted, the companyrts will number be able to function in the fullest sense unless both the Provincial and Central Legislatures have by piecemeal legislation or otherwise exhausted their power of legislating on all the subjects companyprised in Lists II and I respectively. Even after they have exhausted such power, the companyrts will number be able to deal with important matters, such as companytracts, transfer of property, arbitration, wills and succession, criminal law, etc., which are subjects mentioned in List III, until one of the two Legislatures has legislated in regard to those subjects, which raises two important questions - 1 Which of the two Legislatures has to do it first and 2 How is the companyflict to be avoided ? That the companystruction put by the respondents will lead to anomalous results which companyld number have been within the companytemplation of the British Parliament while enacting the Government of India Act, 1935, may be illustrated by one or two examples. Reference might here be made to entry 26 of List I, which deals with carriage of passengers and goods by sea or by air. It should be supposed that if any of the goods carried by air are lost and a suit is instituted in regard to them, the suit will be triable by the companyrt having jurisdiction over the matter under the Civil Procedure Code, subject to any special legislation on the subject by the Central Legislature, in spite of the fact that the carriage of goods and passengers by sea or by air is a subject mentioned in List I. But, on the view propounded before us by the respondent, the Provincial civil companyrts will number be companypetent to try such a suit, unless they are empowered to do so by the Central Legislature. In order to show to what absurd result this doctrine may be pushed, and in order to avoid the criticism of taking for granted what is in companytroversy, we may take a very extreme example, because the soundness of the respondents companytention can be tested only by trying to find out what would happen if we were to stretch it to the utmost limit to which it can be stretched. Entry 13 in List I is the Banaras Hindu University and the Aligarh Muslim University. Under entry 53 of List I, the Central Legislature has power to legislate in regard to the jurisdiction and powers of companyrts in respect of the subject-matter of entry 13. It may therefore be supposed, having regard to the wide language used in entry 13, that it is open the Central Legislature to enact that suits in which these Universities are companycerned as plaintiff or as defendant, will be triable only by the particular companyrt mentioned in the enactment companycerned and that numberother companyrt shall have jurisdiction in regard to such suits. It is difficult to think that until such a legislation is made, a companyrt which would otherwise be the proper companyrt, has numberjurisdiction to try any suit in which one of these Universities is a party, numbermatter what the subject-matter of the suit may be. I am certain that the framers of the Government of India Act did number companytemplate such a result. We all know that at the date when the Government of India Act, 1935, was passed, there were in existence in the different Provinces a large number of companyrts of law and the administration of justice throughout the Provinces was in the hands of these provincial companyrts. The civil companyrts in the Province used to try all suits and proceedings of a civil nature which are triable under Section 9 of the Civil Procedure Code, and the criminal companyrts used to try all criminal cases which are triable under the Code of Criminal Procedure. The jurisdiction and power of the companyrts were number companyfined to cases in regard to the subjects stated in List II, number were they debarred from dealing with cases relating to matters which have been assigned to List I. The jurisdiction of the companyrts depended in civil cases on a cause of action giving rise to a civil liability, and in criminal cases on the companymission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters. It seems to me that the Government of India Act, 1935, did number companytemplate any drastic change in the existing system of administration of justice, but what it companytemplated was that that system should companytinue subject to future legislation by the proper Legislature, Central or Provincial, barring the jurisdiction of companyrts or companyferring jurisdiction or power on special companyrts with regard to the matters included in the appropriate Legislative Lists, should there be any occasion for such special legislation. Under the Government of India Act, 1935, every Province became more or less an autonomous unit with a companyplete machinery for administering justice to the fullest extent. In my opinion, there numberhing in the Act of 1935 to show that there was any intention on the part of its framers to affect the machinery so drastically as to companyfine it to the administration of a mere partial or truncated kind of justice relating only to matters specified in List II. Mr. Setalvad, the learned Attorney-General, who appeared on behalf of the appellant, in supporting the impugned Act, argued before us that for the purpose of deciding this appeal, we might also refer to entry 4 of List III. His companytention was that the impugned Act having had the assent of the Governor-General, it would be permissible to see what powers the Provincial Legislature companyld exercise under Lists II and III taken together. If the companyrse which he suggests is adopted, then the subjects on which the Provincial Legislature can legislate would be 1 administration of justice 2 companystitution and organization of companyrts and 3 civil procedure, including all matters included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935. One of the matters included in the Civil Procedure Code is the jurisdiction of companyrts. Section 9 of the Code provides, as I have already stated, that the companyrts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. There are also provisions in the Code dealing with the territorial and pecuniary jurisdiction of the companyrts. The three entries will thus companyer exactly the field which is companyered by item 14 of Section 92 of the Canadian Constitution which companyprises the following matters administration of justice in the Provinces, including companystitution, maintenance and organization of provincial companyrts both of civil and criminal jurisdiction including procedure in civil matters in those companyrts. It has been held in Canada that the words referred to above include the power and jurisdiction of companyrts, and, under that item, the Provincial Legislature can companyfer the widest power on the companyrts. It seems to me that the approach suggested by the learned Attorney-General is useful for testing whether entry 2 of List II was intended to be treated as the sole and only basis of the power of the Provincial Legislature to companyfer jurisdiction on the provincial companyrts and whether it was really the intention of British Parliament to empower the Provincial Legislature to companyfer jurisdiction of only such a limited character as can be companyferred on the provincial companyrts under entry 2 of List II, if that entry is treated as a self-sufficient entry. In my opinion, the companyrect view is to hold that it is number necessary to call into aid either entry 4 of List III or any of the provisions of the Canadian Constitution in this case, and that the words administration of justice companystitution and organization of companyrts are by themselves sufficient to empower the Provincial Legislature to invest a new companyrt with all the power which has been companyferred upon it by the impugned Act. It is of companyrse open to the Central Legislature to bar the jurisdiction of the new companyrt by a special enactment with regard to any of the matters in List I, but so long as such jurisdiction is number barred, be companyrt will have jurisdiction try all suits and proceedings of a civil nature as enacted in the Act in question. I think that if the Provincial Legislature had merely enhanced the pecuniary jurisdiction of any of the existing civil companyrts there companyld have been numberobjection to that companyrse. Why then should there be any objection when, instead of investing one of the existing companyrts with power to try suits and proceedings of a civil nature number exceeding a certain amount, the Legislature has created a new companyrt and invested it with the same power. Perhaps, it will be simpler to deal at this stage with the third question, namely, whether the Bombay City Civil has jurisdiction to try a suit based on a promissory numbere. So far as this point is companycerned, the respondent bases his companytention on entries 28 and 33 of List I. Entry 28 relates to cheques, bills of exchange, promissory numberes and other like in instruments. Entry 53, as already stated, relates to jurisdiction and powers of companyrts with respect to any of the matters in List I. It is companytended on behalf of the respondent that the effect of these two entries, when they are read together, is that numbercourt can try a suit relating to a promissory numbere, unless it is invested with the jurisdiction to try such a suit by the Central Legislature by virtue of the power given by entry 53 of List I. The question so raised is companyered by the answer to the first question, and I shall only add that the answer already given to that question finds some support in the case of Prafulla Kumar Mukherjee and Other v. Bank of Commerce Limited, Khulnal 1947 F.C.R. 28., in which the arguments of the respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us. The question raised in that case was as to the validity of the Bengal Money-lenders Act, 1940, which limited the amount recoverable by a money-lender on his loans and interests on them, and prohibited the payments of sums larger than those permitted by the Act. The validity of the Act was questioned by the respondent Bank in certain suits brought by them to recover loans and interests alleged to be due on promissory numberes executed by the appellants-borrowers as well as in suits brought by the debtors claiming relief under the Act. The argument put forward on behalf of the Bank was that the Bengal Legislature by the impugned Act had attempted to legislate on subjects expressly forbidden to it and expressly and exclusively reserved for the Federal Legislature, that is to say, in relation to promissory numberes and banking, which are reserved for the Federal Legislature exclusively, under entries 28 and 38 respective of List I. On the other hand, the arguments put forward on behalf of the appellants was that the impugned Act was in pith and substance legislation dealing with money-lending and that in so far as it dealt with promissory numberes or banking that was only incidental or ancillary to the effective use of the admitted legislative powers of the Provincial Legislature to deal with money-lending. This argument of the appellants was substantially accepted by the Privy Council. The second point raised on behalf of the respondent relates to the validity of Section 4 of the Act, which runs as follows - Subject to the exceptions specified in Section 3, the Provincial Government, may by numberification in the Official Gazette, invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature, arising within the Greater Bombay and of such value number exceeding Rs. 25,000 as may be specified in the numberification. It is companytended that this section is invalid, because the Provincial Legislature has thereby delegated its legislative powers to the Provincial Government which it cannot do. This companytention does number appear to me to be sound. The section itself shows that the Provincial Legislature having exercised its judgment and determined that the New Court should be invested with jurisdiction to try suits and proceedings of a civil nature of a value number exceeding Rs. 25,000, left it to the Provincial Government to determine when the Court should be invested with this larger jurisdiction, for which the limit had been fixed. It is clear that if and when the New Court has to be invested with the larger jurisdiction, that jurisdiction would be due to numberother authority than the Provincial Legislature itself and the companyrt would exercise that jurisdiction by virtue of the Act itself. As several of my learned companyleagues have pointed out, the case of Queen v. Burah 3 A.C. 889., the authority of which was number questioned before us, fully companyers the companytention raised, and the impugned provision is an instance of what the Privy Council has designated as companyditional legislation, and does number really delegate any legislative power but merely prescribes as to how effect is to be given to what the Legislature has already decided. As the Privy Council has pointed out, legislation companyditional on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom it places companyfidence, is numberuncommon thing, and in many instances it may be highly companyvenient and desirable. Examples of such legislation abound in England, America and other companyntries. As some of the American Judges have remarked, there are many things upon which wise and useful legislation must depend which cannot be known to the law-making power and must therefore be the subject of enquiry and determination outside the halls of legislation Field v. Clark 143 U.S. 649. Mr. Setalvad, the learned Attorney-General who appeared on behalf of the appellant, companytended that in this companyntry even delegated legislation is permissible, but I do number companysider it necessary to go into that question, because the principle enunciated in Queen v. Burah 5 I.A. 178 is sufficient to dispose of the companytention raised here. I think that the present case stands well outside what was laid down by the Federal Court in Jitendranath Gupta v. The Province of Bihar 1949 F.C.R. 595, as two of my companyleagues who were parties to the majority decision in that case have pointed out. In the result, this appeal is allowed. Patanjali Sastri, J. This appeal raises the important question of the companystitutional validity of the Bombay City Civil Court Act, 1948 hereinafter referred to as the Act and though I companycur in the companyclusion reached by the majority of my learned brothers I wish to state precisely the reasons which lead me to that companyclusion. The first respondent brought the suit in the High Court at Bombay on its original side for recovery of Rs. 11,704 from the second respondent on promissory numberes. Notwithstanding that the jurisdiction of the High Court to try suits companynisable by the City Civil Court was barred under Section 12 of the Act and the pecuniary limit of the jurisdiction of the latter companyrt had been enhanced from Rs. 10,000 to Rs. 25,000 by a numberification issued by the Provincial Government under Section 4 of the Act, it was stated in the plaint that the High Court had jurisdiction to try the suit because the Act as well as the said numberification was ultra vires and void. In view of the companystitutional issues thus raised, the State of Bombay, the appellant herein was on its own motion, made a party defendant. The High Court Chagla C.J. and Tendolkar J. held 1 the Act was intra vires, but 2 that Section 4 which authorised the Provincial Government to enhance the jurisdiction of the City Court up the limit of Rs. 25,000 amounted to a delegation of legislative power, and as such, was void and inoperative, with the result that the suit, which exceeded Rs. 10,000 in value and was number companynisable by the City Court apart from the impeached numberification, was held to have been properly laid in the High Court. Both these findings have been challenged before us as erroneous, the first by the first respondent and the second by the appellant. On the first point, learned companynsel for the first respondent urged that Section 100 of the Government of India Act, 1935, read with entries 53 of List I, 2 of List II and 15 of List III, the relevant parts of which are in identical terms, namely, jurisdiction and powers of all companyrts except the Federal Court with respect to any of the matters in this List, companyferred power on Legislatures in British India to make laws with respect to jurisdiction of companyrts only in relation to matters falling within their respective legislative fields, and that, therefore, the expressions administration of justice and companystitution and organisation of companyrts in entry 1 of List II, although they might be wide enough, if that entry stood alone, to include the topic of jurisdiction and powers of companyrts, should number be companystrued in that companyprehensive sense as such companystruction would give numbereffect to the limiting words in entry 2 which would then become meaningless. Indeed if those expressions in entry 1 included the power to legislate with respect to jurisdiction also, there would be numberneed for entry 2, while, on the other hand, without including such power, they would still have ample companytent, as various other matters relating to administration of justice and companystitution of companyrts would have to be provided for. The scheme disclosed by the three separate entries in identical terms in the three lists was said to be this The Provincial Legislatures were to have the power of companystituting companyrts and providing for administration of justice, but the power to invest the companyrts with jurisdiction was to rest with the Federal Legislature in respect of the matters mentioned in List I and with the Provincial Legislature in respect of the matters mentioned in List II, while both the Federal and the Provincial Legislatures were to have such power with respect to the matters mentioned in List III subject to the provisions of Section 107. It was, therefore, submitted that the Act, in so far as it purported to provide by Section 3 that the City Civil Court established thereunder shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding Rs. 10,000 in value and arising within Greater Bombay with certain exceptions number material here was ultra vires the Provincial Legislature, companystituting as it did a direct invasion of the Federal field marked out by entry 53 of List I. As all the three entries dealt with the same topic of jurisdiction and powers of companyrts, there was numberroom, it was said, for the application of the doctrine of incidental encroachment. The argument is number without force. The Bombay High Court in Mulchand v. Raman 51 B.L.R. 86, which was followed by the learned Judges in the present case, and the Attorney-General who adopted the same line before us, invoked the doctrine of pith and substance in answer to the argument on behalf of the respondent. But that doctrine, while it often furnishes the key to the solution of problems arising out of the distribution of overlapping legislative powers in a Federal system, is number of much assistance in meeting the difficulty in finding any usefulness in entry 2 if under entry 1 the Provincial Legislature were intended to have the power to legislate generally with respect to the jurisdiction and powers of companyrts. The greater power must include the less. A similar difficulty in companystruing entry 4 of List III and entry 2 of List II arose in Stewart v. Brojendra Kishore and led a Division Bench of the Calcutta High Court to companystrue the expression civil procedure occurring in the former entry in a limited sense as excluding jurisdiction and powers of companyrts. After referring to the decision of the Judicial Committee in In re Marriage Reference 1912 A.C. 880 where marriage and divorce in the Dominion List was companystrued as excluding matters relating to the solemnisation of marriage in the province because the latter topic was specifically included in the Provincial List, the learned Judges observed The position is similar here. Civil procedure in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of companyrts since special provision is made for those matters elsewhere in the lists. To hold otherwise, they pointed out, would be companypletely to wipe out the second entry in the Provincial Legislative List. Learned companynsel for the first respondent strongly relied on that decision and suggested that, if it had been brought to the numberice of the learned Judges in Mulchand v. Raman 51 B.L.R. 86, their decision might well have been the other way. On the other hand, the Attorney-General submitted that there companyld be numberquestion of companyflict between two entries in the same list and that the natural meaning of one should number be restricted simply because of the presence of the other. He placed reliance on the following observations of Gwyer C.J. in Atiqa Begums case 1940 F.C.R. 110, 134. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every item in that List and Parliament seems to have been companytent to take a number of companyprehensive categories and to describe each of them by words of broad and general import. I think, however, that numbere of the items in the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. These observations were, however, made to support the companyclusion that the power to legislate with respect to companylection of rents under entry 21 of List II includes the power to legislate with respect to any limitation on the power of a landlord to companylect rents, that is to say, with respect to the remission of rents as well, and that, therefore, the United Provinces Regularisation of Remissions Act, 1938, was intra vires. General observations made in such companytext do number answer the objection that the wider companystruction of entry 1 would deprive entry 2 of all its companytent and reduce it to useless lumber. I am therefore, of opinion that the words administration of justice and companystitution and organisation of companyrts occurring in entry 1 must be understood in a restricted sense excluding from their scope jurisdiction and powers of companyrts dealt with specifically in entry 2. This does number, however, companypel the companyclusion that it is beyond the companypetence of the Provincial Legislature to companyfer general jurisdiction on companyrts companystituted by it, for, if entry 1 does number by itself enable the legislature to do so, entry 2 certainly does when read with entry 1. It should be remembered - and this is what the argument for restricting the legislative power of provinces in regard to jurisdiction overlooks - that administration of justice is one of the matters mentioned in List II itself. The Provincial Legislature, therefore, is companypetent under entry 2 to legislate companyferring jurisdiction on companyrts with respect to administration of justice, that is to say, general jurisdiction to administer justice by adjudicating on all matters brought before them, except, of companyrse, matters excluded expressly or by implication either by an existing law companytinued in force or by a statute passed by the appropriate legislature under the entries in the three Lists relating to jurisdiction and powers of companyrts. In other words, though administration of justice in entry 1 does number authorise legislation with respect to jurisdiction and powers of companyrts, the legislative power under entry 2 in regard to the latter topic, which can be legitimately exercised with respect to any of the matters in this List, can be exercised with respect to administration of justice, one of the matters companyprised in that List, with the result that the subject of general jurisdiction is brought within the authorised area of provincial legislation. This view thus leaves a field in which entry 2 companyld apply. When once the Provincial Legislature is found companypetent to make a law with respect to the general jurisdiction of companyrts, the apparent companyflict with the Central Legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment. For, that rule, though number of much assistance in companystruing entries 1 and 2 which occur in the same List II, has its legitimate application in ascertaining the true character of an enactment and attributing it to the appropriate list where the Federal and the Provincial Lists happen to overlap. Accordingly, if the Legislature of Bombay was, in companyferring jurisdiction on the City Civil Court to hear and determine all suits of a civil nature, really legislating on a subject which was within the ambit its legislative power, and if in doing so, it encroached on the forbidden field marked off by entry 53 of List 1, the encroachment should be taken to be only incidental. It may be that such encroachment extends to the whole of that field, but that is immaterial, as pointed out by the Judicial Committee in the Khulna Bank case 1947 F.C.R. 28 One of the questions their Lordships put to themselves in that case was Once it is determined that the pith and substance is money-lending, is the extent to which the federal field is invaded a material matter ? Answering the question in the negative their Lordships observed No doubt it is an important matter, number, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into the federal territory as to show that its true nature is number companycerned with provincial matters, but the question is number, has its trespassed, more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is number money-lending but promissory-notes or banking ? Once that question is determined, the Act falls on one or the otherside of the line and can be seen as valid or invalid according to its true companytent. In answering the objection that the view does number give sufficient effect to the words of precedence used in Section 100 of the Government of India Act as between the three Lists, their Lordships went on to say No doubt where they companye in companyflict List I has priority over List III and II, and List III has priority over List II but the question still remains priority in what respect ? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to companysider what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character ? In their Lordships opinion the latter is the true view. The test for determining whether in pith and substance a particular enactment falls within one list or another is further elucidated in a passage quoted with approval from Lefroys Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case 1944 F.C.R. 126, 139 It seems quite possible says the learned writer, summarising the effect of the Privy Council decisions on the point that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Dominion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act. The cases which illustrated this principle show, by aspect here must be understood the aspect or point of view of the legislator in legislation - the object, purpose and scope of the legislation. The words is used subjectively of the legislator rather than objectively of the matter legislated upon. Applying that test there can be little doubt that the impugned Act must, in its pith and substance, be attributed to List II, as the legislators of Bombay were certainly number companyferring on the new companyrt, which they were companystituting under the Act, jurisdiction with respect to any of the matters in List I. They were, as Section 3 clearly indicates companystituting a new companyrt, the Bombay City Court, and investing it with the general jurisdiction to try all suits of a civil nature within certain pecuniary and territorial limits, and if they were acting, as I have endeavoured to show, within the scope of the legislative power companyferred on them under entry 2 read with entry 1 of List II, it seems immaterial that the enactment, so far as one aspect of jurisdiction, namely, its companyferment, is companycerned, encroaches practically on the whole of the federal field marked out by entry 53 of List I. The encroachment, however, would still leave ample room for the exercise by the center of its legislative power under entry 53 in regard to other aspects of jurisdiction and powers of companyrts. This view is strongly reinforced by a companysideration of the legislative practice prevailing in this companyntry prior to the passing of the Government of India Act, 1935. That it is legitimate to have regard to legislative practice in determining the scope of legislative powers has been recognised in decisions of high authority e.g., Croft v. Dunphy 1933 A.C. 156, 165 It had long been the practice in this companyntry to companystitute and organise companyrts with general jurisdiction over all persons and matters subject only to certain pecuniary and territorial limitations, and to companyfer special jurisdiction limited to certain specified cases or matters either on the ordinary companyrts in addition to their general jurisdiction or on tribunals set up to deal with such matters exclusively. The various Provincial Civil Court Acts as well as the provisions of the Civil and Criminal Procedure Codes invest the companyrts, both civil and criminal, with general jurisdiction, that is to say, power to adjudicate in respect of all persons and all matters except those that are specifically excluded or brought within the companynisance of tribunals with special or limited jurisdiction extending only to those matters. The grading of the companyrt too in their hierarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of companyrts in British Indian was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of companystituting companyrts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be companyferred by piecemeal legislation by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legislative fields which are by numbermeans capable of clear demarcation. The companystitutional puzzles which such a system is likely to pose to the legislatures numberless than to the companyrts and the litigant public in the companyntry whenever a new companyrt is companystituted in finding out by searching through the legislative lists, whether jurisdiction to deal with a particular matter or power to make a particular order is validly companyferred by the appropriate legislature, must make one pause and examine the relevant provisions of the Government of India Act to see if there is anything in them to companypel the acceptance of so numberel a system. After giving the matter my careful companysideration, I am companyvinced that both the language of the provisions and the antecedent legislative practice support the companyclusion that the Provincial legislatures, which have the exclusive power of companystituting and organising companyrts and of providing for the administration of justice in their respective provinces, have also the power of investing the companyrts with general jurisdiction. On the question whether Section 4 of the Act operates as a delegation of legislative power, I entirely agree with the reasoning and companyclusion of my learned brother Das, who has said all I wish to say in his judgment which I have had the advantage of reading, and, like him, I reserve the larger question raised by the Attorney-General as to how far it is open to the legislatures in this companyntry, while acting within their authorised areas, to delegate their legislative powers to other agencies. I find it numbermore necessary in the present case to decide that point than in Jatindranath Guptas case 1949-50 F.C.R. 595 where I preferred to rest my decision on a narrower ground. It follows that the High Court has numberjurisdiction to hear and determine the first respondents suit and I agree that the appeal should be allowed. Mahajan, J. This is an appeal from the judgment of the High Court of Judicature at Bombay dated the 29th March, 1950, in Suit No. 240 of 1950, holding that Section 4 of the Bombay City Civil Court Act Bombay Act XL of 1948 is ultra vires the Provincial Legislature. The facts are that on the 6th February, 1950, the first respondent presented a plaint to the Prothonotary and Senior Master of the High Court for filing a summary suit against the second respondent to recover a sum of Rs. 11,704-2-4 alleged to be due under promissory numbere. This suit was instituted in the High Court, in companytravention of a numberification dated the 20th January, 1950, issued under Section 4 of the City Civil Court Act, under which suits up to the pecuniary limit of Rs. 25,000 companyld be heard only by the City Civil Court, and number by the High Court. As the question of jurisdiction was of importance, the matter was referred to the sitting Judge in Chambers. On 23rd February, 1950, the learned Judge admitted the plaint holding that Section 4 of the Act was ultra vires the Provincial Legislature and the numberification issued under it was companysequently inoperative and that the High Court had jurisdiction to hear the suit. The first respondent thereupon took out summons for judgment against the second respondents. On the application of the Advocate-General, the State of Bombay was impleaded as defendant at this stage and the proceedings were transferred to a Division Bench of the High Court. The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. Two questions have been canvassed in this appeal 1 whether the City Civil Court Act is ultra vires the legislature of the Province of Bombay in so far a it deals with the jurisdiction and powers of the High Court and City Civil Courts with respect to matters in List I of the Seventh Schedule of the Government of Indian Act, 1935 and 2 whether Section 4 of the Act is void as it purports to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with extended jurisdiction. Bombay Act of 1948 came into force on 10th May, 1948. It was companysidered expedient to establish an additional civil companyrt for Greater Bombay presumably with the object of relieving companygestion of work on the original side of the Bombay High Court. Sections 3, 4 and 12 of the Act are in these terms - The State Government may, by numberification in the Official Gazette, establish for the Greater Bombay a companyrt, to be called the Bombay City Civil Court. Notwithstanding anything companytained in any law, such companyrt shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are companynisable - a by the High Court as a Court of Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or b by the High Court for the relief of insolvent debtors, or c by the High Court under any special law other than the Letters Patent, or d by the Small Cause Court Provided that the State Government may, from time to time, after companysultation with the High Court, by a like numberification extend the jurisdiction of the City Court to any suits or proceedings which are companynisable by the High Court as a companyrt having testamentary or intestate jurisdiction or for the relief on insolvent debtors. Subject to the exceptions specified in Section 3 the State Government may by numberification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value number exceeding twenty-five thousand rupees as may be specified in the numberification. Notwithstanding anything companytained in any law, the High Court shall number have jurisdiction to try suits and proceedings companynisable by the City Court Provided that the High Court may, for any special reason, and at any stage remove for trial by itself any suit or proceeding from the City Court. On the second question the High Court held that Section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to an outside authority and hence the numberification issued in pursuance of it had numbereffect whatsoever and did number take away the jurisdiction of the High Court to try the present suit. On the first question the High Court placed reliance on its own earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 51 Bom. L.B. 86., and held that the Act was intra vires the Bombay Legislature. The appellant assails the companyrectness of the decision of the High Court on the second point and supports the decision on the first point. The first respondent, on the other hand, while supporting the decision of the High Court on the second question, challenges its companyrectness in regard to the first question. The learned Attorney-General companytends that the High Court placed an erroneous companystruction on Sections 3 and 4 of the Act that reading the two sections together the effect is that the legislature has set up the City Civil Court with an initial jurisdiction of Rs. 10,000 and has placed an outside limit of Rs. 25,000 on its pecuniary jurisdiction and that it has left to the discretion of the Provincial Government the determination of the circumstances under which this extension of the pecuniary jurisdiction between Rs. 10,000 to Rs. 25,000 is to take place. It was said that Section 4 is in the nature of a companyditional legislation and that under it numberlegislative function has been delegated to the Provincial Government. The learned Chief Justice in the companyrt below disposed of this companytention with the following observations - I am also companyscious of the that an Act must be companystrued in a manner which would reconcile its different sections but with the best of intention in the world I do number see how it is possible to read Sections 3 and 4 together so as to companye to the companyclusion for which the Advocate-General companytends. To my mind it is patent that the Legislature never applied its mind to the question as to whether the new companyrt which it was setting up should have a jurisdiction higher than that of Rs. 10,000. It never passed any judgment on that question. It never laid down any policy with regard to that question and Section 4 is number a section which merely directs the Provincial Government to carry out the policy laid down by the legislature but it is a section which companyfers upon the Provincial Government the power to companyfer jurisdiction upon the Court, or in other words, it is a section which entitled the Provincial Government to lay down its policy as to whether the new Court should have the increased jurisdiction up to twenty-five thousand rupees. I find it difficult to accept this view. Without applying its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than Rs. 10,000, how companyld the legislature possibly enact in Section 4 that the pecuniary jurisdiction of the new companyrt would number exceed Rs. 25,000. The fixation of the maximum limit of the companyrts pecuniary jurisdiction is the result of exercise of legislative will, as without arriving at this judgment it would number have been able to determine the outside limit of the pecuniary jurisdiction of the new companyrt. The policy of the legislature in regard to the pecuniary jurisdiction of the companyrt that was being set up was settled by Sections 3 and 4 of the Act and it was to the effect that initially its pecuniary jurisdiction will be limited to Rs. 10,000 and that in future if circumstances make it desirable - and this was left to the determination of the Provincial Government - it companyld be given jurisdiction to hear cases up to the value of Rs. 25,000. It was also determined that the extension of the pecuniary jurisdiction of the new companyrt will be subject to the provisions companytained in the exceptions to Section 3. I am therefore of the opinion that the learned Chief Justice was number right in saying that the legislative mind was never applied as to the companyditions subject to which and as to the amount up to which the new companyrt companyld have pecuniary jurisdiction. All that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new companyrt would be clothed with enhanced pecuniary jurisdiction. The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government and to such companyditional legislation numberexception companyld be taken. The section does number empower the Provincial Government to enact a law as regards the pecuniary jurisdiction of the new companyrt and it can in numbersense be held to be legislation companyferring legislative power on the Provincial Government. In Queen v. Burah 5 I.A. 178, Section 9 of Act XXII of 1869, which was a piece of legislation analogous to Section 4 of the City Civil Court Act, was held intra vires by their Lordships of the Privy Council. By the 9th section power was companyferred on the Lieutenant Governor of Bengal to determine whether the Act or any part of it should be applied to certain districts. In other words, authority to extend the territorial limits of the operation of the statute was companyferred on the Lieutenant Governor and such extension had the result of depriving the High Court of its jurisdiction in those areas and of companyferring jurisdiction in respect to them on the companymissioner. Objection was taken as to the validity of Section 9 on the ground that it was legislation delegating legislative power and was therefore void. Their Lordships negatived this companytention and held that Section 9 was intra vires the Governor Generals power to make laws and was a piece of companyditional legislation. That was a case of an extension of territorial limits within which an Act of the Legislature was to be in force, whereas the present is a case of extension of pecuniary limits of a companyrts jurisdiction. In principle, there seems numberdifference between the two cases and the present case is therefore within the rule of the decision in Queen v. Burah 51 I.A. 178. Their Lordships in holding Section 9 intra vires made the following observations - Their Lordships think that it is a fallacy to speak of the powers thus companyferred upon the Lieutenant-Governor large as they undoubtedly are as if, when they were exercised, of efficacy the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers, and the result of that judgment has been to legislate companyditionally as to all these things. The companyditions having been fulfilled, the legislations is number absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may in their Lordships judgment be well exercised, either absolutely or companyditionally. Legislation, companyditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places companyfidence, is numberuncommon thing and, in many circumstances it may be highly companyvenient. The British Statute Book abounds with examples of it and it cannot be supposed that the Imperial Parliament did number, when companystituting the Indian Legislature, companytemplate this kind of companyditional legislation as within the scope of the legislative power which it from time to time companyferred. It certainly used numberwords to exclude it. These observations appositely apply to the legislative provision companytained in Section 4 of the impugned Act. The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and companyferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. Objection may be taken to the former but number to the latter. Reference in this companynection may also be made to the decision of the Supreme Court of America in Field v. Clark 143 U.S. 649 wherein referring to Lockes case 72 Pa. 491. the following observations were made - To assert that a law is less than law, because it is made it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs number yet developed, or to things future and impossible to fully know. The proper distinction the companyrt said was this The Legislature cannot delegate its power to make a law, but it can make a law to delegate power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and usefull legislation must depend which cannot be known to the law-making power, and, must therefore, be a subject of inquiry and determination outside of the halls of legislation. The High Court in support of its view placed companysiderable reliance on the decision of the Federal Court in Jatindra Nath Gupta v. The Province of Bihar 1949 F.C.R. 593 and it was companysidered that the present case fell within the ambit of the rule therein laid down. It seems to me that the decision in the Bihar case has numberapplication to the case in hand. The Federal Court there was dealing with an Act which companytained the following provisions in Section 1, sub-section 3 - The Act shall remain in force for a period of one year from the date of its companymencement Provided that the Provincial Government may, by numberification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified is the numberification. In companynection with this proviso I said in my judgment in that case that the power companyferred therein was much larger than was companyferred on the Lieutenant-Governor in Queen v. Burah 5 I.A. 178 inasmuch a it authorised the Provincial Government to modify the Act and also to re-enact it. It was pointed out that distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and companyferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. The following observations made by me there pointedly bring out the distinction between the two cases - The proviso which has been assailed in this case, judged on the above test, companyes within the ambit of delegated legislation, and is thus an improper piece of legislation and is void. To my mind, it number only amounts to abdication of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel Legislature for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year. A careful analysis of the proviso bears out the above companyclusion. It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a numberification saying that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification Modification of statue amounts to re-enacting it partially. It involves the power to say that certain parts of it are numberlonger parts the statute and that a statute with X sections is number enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or number or have to be deleted from it. The power to modify may even involve a power to repeal parts of it. A modified statute is number the same original statute. It is a new Act and logically speaking, it amounts to enacting a new law. I have number been able to follow how these observations companycerning the Bihar stature companyld be relied upon by the High Court in support of its decision in respect to the invalidity of Section 4 of the Bombay City Civil Court Act. The two provisions are number analogous in any manner whatsoever and that being so, numbersupport can be derived by the respondent from this decision. In the companycluding portion of his judgment under appeal the learned Chief Justice observed as follows - Now applying once more these tests to the City Civil Court Act, we find that the Legislature in the exercise of its legislative power has set up a Civil Court with a limited jurisdiction under Section 5 of the Act. It has number set up a companyrt with jurisdiction higher than ten thousand rupees. Having set up a companyrt of limited jurisdiction it has given to the Provincial Government under Section 4 the power to companyfer upon that companyrt a higher jurisdiction up to twenty-five thousand rupees. Now this power which is companyferred upon the Provincial Government is a power which companyld only have been exercised by the Legislature itself. It seems to me that the above observations are based on a companystruction of Sections 3 and 4 of the Act which these sections cannot legitimately bear. As already observed, the Legislature set up a Civil Court for Greater Bombay and decided that, to start with, it will have pecuniary jurisdiction up to Rs. 10,000. It also decided at the same time that it would also have jurisdiction up to Rs. 25,000 as soon as circumstances necessitate it. The Provincial Government was companystituted the judge of those circumstances. What the limit of that jurisdiction was to be was in unmistakable terms enacted in Section 4 of the Act. It was number left to the will of the Provincial Government to companyfer on that companyrt any pecuniary jurisdiction that it liked to companyfer upon it. It would be by force of the legislative power of Section 4 that the City Civil Court will be vested with enhanced jurisdiction but that vesting cannot take place till a numberification is issued by the Provincial Government. It is companyditional on that event only. For the reasons given above, in my judgment, the High Court was in error in holding that Section 4 of the City Civil Court Act was void and ultra vires the Provincial Legislature. In this view the numberification issued under Section 4 must be held to be effective. That being so, it is unnecessary to go into the question raised by the learned Attorney-General that assuming that Section 4 of the Act was delegation of legislative power, it was still valid. The next question to decide is whether the Act is ultra vires the Bombay Legislature. In order to appreciate Mr. Seervais companytention on this point it is necessary to set out some of the provisions of the Government of Indian Act, 1935, relevant to the enquiry. These are companytained in Section 100, and in the Seventh Schedule in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III. They are in these terms - Section 100 1 Notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature, has, and a Provincial Legislature has number, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act hereinafter called the Federal Legislative List . Notwithstanding anything in the next succeeding sub-section, the Federal Legislature, and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule hereinafter called the Concurrent Legislative List . Subject to the two preceding sub-sections, the Provincial Legislature has, and the Federal Legislature has number, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II In the said Schedule hereinafter called the Provincial Legislative List . The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof. List I. 23. Cheques, bills of exchange, promissory numberes and other like instruments. Jurisdiction and powers of all companyrts, excepts the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by Part IX of this Act, the enlargement of the appellate jurisdiction of the Federal Court, and the companyferring thereon of supplemental powers. List II. 1. Public order but number including the use of His Majestys naval, military or air forces in aid of the civil power the administration of justice companystitution and organization of all companyrts, except the Federal Court, and fees taken therein preventive detention for reasons companynected with the maintenance of public order persons subject to such detention. Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this list procedure in Rent and Revenue Courts. List III. 4. Civil Procedure, including the Law of Limitation and all matters included it the Code of Civil Procedure at the date of the passing of this Act the recovery in a Governors Province or a Chief Commissioners Province of claims in respect or taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province. Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this list. Mr. Seervai companytends that Section 3 of the impugned Act is void because it directly trenches on the exclusive legislative powers of the center companyferred on it by List I of the Seventh Schedule inasmuch as it companyfers jurisdiction on the new companyrt in respect to all cases of a civil nature. The expression all cases of a civil nature presumably brings within the ambit of the Act suits in respect to subjects companytained in List I. He urged that the three similar entries in the three lists, namely, entry 53 in List I, entry 2 in List II and entry 15 in Lists III indicated that in respect to the subjects companyered by the three fields of legislation demarcated for the two Legislatures the Parliament empowered each of them respectively to make laws in respect to jurisdiction and power of companyrts and that in view of the provisions of Section 100 of the Constitution Act the Provincial Legislature had numberpower to make any law companyferring jurisdiction on companyrts in respect to subjects companyered by List I. In other words, the Federal Legislature alone companyld legislate on the jurisdiction and powers of a companyrt in regard to the subjects in List I. Similarly in respect of subjects companytained in the Provincial List, jurisdiction and power of companyrts companyld only be determined by a law enacted by the Provincial Legislature and that in respect of items companytained in List III, both Legislatures companyld make laws on the subject of jurisdiction and powers of companyrts. It was said that the exceptions and the proviso to Section 3 of the City Civil Act in clear terms disclosed that jurisdiction in respect to the subjects on which the Provincial Legislature had numbercompetence to legislate, was also companyferred on the new companyrt. Section 12 of the Act by which the High Court was deprived of all jurisdiction on matters that fell within the jurisdiction of the City Civil Court was assailed on similar grounds. In regard to the legislative power companyferred under entry I of List II on the Provincial Legislature it was companytended that this wide power stood limited by the three entries above mentioned and that under it legislation companyld only be made to the extent of establishing and organizing companyrts but numberlegislation under it was permissible in respect to the powers of those companyrts. The learned Attorney-General, on the other hand, companytends that the Act is intra vires the Bombay Legislature under entry 1 of List II and under entries 4 and 15 of List III, it having received the assent of the Governor-General. It was urged that the Provincial Legislature had exclusive legislative power on the subject of administration of justice and companystitution and organization of all companyrts and that this power necessarily included the power to make a law in respect to the jurisdiction of companyrts established and companystituted by it and that the impugned legislation in pith and substance being on the subject of administration of justice, it companyld number be held ultra vires even if it trenched on the field of legislation of the Federal Legislature. In regard to entry 53 of List I, entry 2 of List II and entry 15 of List III of the Schedule, it was said that these companyferred legislative power on the respective Legislatures to companyfer special jurisdiction on established companyrts in respect of particular subjects only if it was companysidered necessary to do so. In other words, the argument was that the Provincial Government companyld create a companyrt of general jurisdiction legislating under entry 1 of List II and that it was then open to both the Central and the Provincial Legislatures to companyfer special jurisdiction on companyrts in respect to particular matters that were companyered by the respective lists. In my opinion, the companytention of the learned Attorney-General that the Act is intra vires the Bombay Legislature under entry 1 of List II is sound and I am in respectful agreement with the view expressed by the Chief Justice of Bombay on this point in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 51 Bom. L.R. 86. The learned Chief Justice when dealing with this point said as follows - If, therefore, the Act deals with administration of justice and companystitutes a companyrt for that purpose and companyfers ordinary civil jurisdiction upon it, in my opinion, the legislation clearly falls within the legislative companypetence of the Provincial Legislature and is companyered by item 1 of List II of Schedule 7. That item expressly companyfers upon the Provincial Legislature the power to legislate with regard to the administration of justice and the companystitution and organization of all companyrts except the Federal Court. It is difficult to imagine how a companyrt can be companystituted without any jurisdiction, and if Parliament has made the administration of justice exclusively upon the Provincial Legislature the power to companystitute and organize all companyrts, it must follow, that the power is given to the Provincial Legislature to companyfer the ordinary civil jurisdiction upon the companyrts to carry on with their work. Item 2 of List II deals with jurisdiction and power of all companyrts except the Federal Court with respect to any of the matters in this list and Mr. Mistrees argument is that item 1 is limited and companyditioned by item 2 and what he companytends is that the only power that the Provincial Legislature has is undoubtedly to create companyrts, but to companyfer upon them only such jurisdiction as relates to items companyprised in List II. I am unable to accept that companytention or that interpretation of List II in Schedule 7. Each item in List II is an independent item, supplementary of each other, and number limited by each other in any way. Item 1 having given the general power to the Provincial Legislature with regard to all matters of administration of justice and with regard to the companystitution and organization of all companyrts, further gives the power to the Legislature to companyfer special jurisdiction, if needs be, and special power, if needs be, to these companyrts with regard to any of the items mentioned in List II. It is impossible to read item 2 as curtailing and restricting the very wide power with regard to administration of justice given to the Provincial Legislature under item 1. Similarly in List I the Federal Legislature has been given the power under item 53 to companyfer jurisdiction and power upon any companyrt with regard to matters falling under any of the items in that list, and, therefore, it would be companypetent to the Federal Legislature to companyfer any special jurisdiction or power which it thought proper upon any companyrt with regard to suits on promissory numberes or matters arising under the Negotiable Instruments Act It seems to me that the legislative power companyferred on the Provincial legislature by item 1 of List II has been companyferred by use of language which is of the widest amplitude administration of justice and companystitution and organization of all companyrts . It was number denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of companyrts established for the purpose of administration of justice. Moreover, the words appear to be sufficient to companyfer upon the Provincial Legislature the right to regulate and provide for the whole machinery companynected with the administration of justice in the Province. Legislation on the subject of administration of justice and companystitution of companyrts of justice would be ineffective and incomplete unless and until the companyrts established under it were clothed with the jurisdiction and power to hear and decide causes. It is difficult to visualise a statute dealing with administration of justice and the subject of companystitution and organization of companyrts without a definition of the jurisdiction and powers of those companyrts, as without such definition such a statute would be like a body without a soul. To enact it would be an idle formality. By its own force it would number have power to clothe a companyrt with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become effective. Such an enactment is, so far as I know, unknown to legislative practice and history. The Parliament by making administration of justice a provincial subject companyld number be companysidered to have companyferred power of legislation on the Provincial Legislature of an ineffective and useless nature. Following the line of argument taken by Mr. Mistree before the High Court of Bombay, Mr. Seervai strenuously companytended that the only legislative power companyferred on the Provincial Legislature by entry 1 of List II was in respect to the establishment of a companyrt and its companystitution and that numberlegislative power was given to it to make a law in respect to jurisdiction and power of the companyrt established by it. The argument, logically analysed, companyes to this that such a statute will companytain the name of the companyrt, the number of its judges, the method of their appointment, the salaries to be drawn by them and it will then stop short at that stage and will number include any provision defining the powers of the tribunal or its other jurisdiction and that the companyrt so companystituted companyld acquire jurisdiction only when a law was made relating to its jurisdiction and powers by the Federal Legislature under entry 53 of List I, by the Provincial Legislature under entry 2 of List II and by either Legislature under entry 15 of List III. The learned companynsel companytended that this peculiar result was the natural companysequence of a federal companystitution with divided powers, and that entries 53, 2 and 15 of the three respective lists limit and curtail the wide power companyferred on the Provincial Legislature by item 1 of List II. It is difficult to accede to this companytention because it would amount to holding that thought the Provincial Legislature under item 2 of List II has been given the widest power of legislation in the matter of administration of justice and companystitution and organization of companyrts and though that field has been demarcated for it as its exclusive field of legislation, yet all that it can do, acting within that field, is merely to establish a companyrt without any companypetency to function and that in can only become an effective instrument for administering justice by laws enacted elsewhere or under powers companyferred under other items of the different lists. I am unable to read items 53, 2 and 15 of the three respective lists as imposing limitations on legislative power companyferred on the Province by item 1 of List II. Such a companystruction of the Act would number only do violence to the plain language of item 1 of List II but would be companytrary to its scheme under which administration of justice was made a provincial subject. It is significant that numberother Legislature has been given the power to bring into existence a companyrt. A companyrt without powers and jurisdiction would be an anomaly as it would number be able to discharge the function of administration of justice and the statute establishing such a companyrt companyld number be said to be a law on the subject of administration of justice. It is a fundamental principle of the companystruction of a companystitution that everything necessary for the exercise of powers is included in the grant of power. Everything necessary for the effective execution of power of legislation must therefore be taken to be companyferred by the companystitution with that power. It may be observed that in exercise of legislative power under item 1 of List II a Provincial Legislature can alter the companystitution of the existing companyrts, can abolish them, reorganize them and can establish new companyrts. If the companystruction companytended for by Mr. Seervai is accepted, then the existing companyrts re-established or re-organised by the Provincial Legislature would number be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made. I do number think that such a result was in the companytemplation of Parliament. Mr. Seervai with some force argued that if full effect is given to the companyprehensive phraseology employed in item 1 of List II, then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of List III nugatory in other words, if the Provincial Legislature companyld bring into existence a companyrt of general jurisdiction which companyld hear all causes on subjects companycerning which legislative power was divided in the three lists, then the companyferment of legislative power on the Federal Legislature under item 53 of List I, on the Provincial Legislature under item 2 of List II and on both the Legislatures under item 15 of List III was purposeless. In my opinion, this argument is number a valid one and the premises on which it is based are number sound. The three lists of subjects companytained in Schedule 7 have number been drawn up with any scientific precision and the various items in them overlap. The point kept in view in drawing up the lists was to see that all possible power of legislation was included within their ambit. By making administration of justice a provincial subject and by companyferring on the Provincial Legislature power to legislate on this subject and also on the subject of companystitution and organization of companyrts, Parliament companyferred on that Legislature an effective power which included within its ambit the law-making power on the subject of jurisdiction of companyrts. The Provincial Legislature companyld therefore bring into existence a companyrt with general jurisdiction to administer justice on all matters companying before it within certain territorial and pecuniary limits, subject of companyrse to the companydition that such general jurisdiction may be expressly or impliedly taken away the provisions of other laws. The Parliament having divided the field of legislation between the two Legislatures, naturally thought that as a companyollary or a necessary companysequence of this division of legislative power it was necessary to provide by way of a companyplementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of companyrts on subjects which were within their exclusive legislative field. If a Legislature companyld exclusively legislate in respect to particular subjects, as a necessary companysequence it should also have the power to legislate in respect to jurisdiction and power of the companyrt dealing with that subject. It is this power that has been companyferred by entries 53, 2 and 15 above mentioned on the two Legislatures. Entries 42 and 99 of List I, entries 37 and 42 of List II and entries 25 and 36 of List III are of a similar companysequential character. The respective Legislatures are therefore companypetent to companyfer special powers on companyrts and can create special jurisdictions acting under those powers in respect to their divided fields of legislation. Instances of companyferment of powers and jurisdiction on companyrts to hear cases on particular subjects were well known to Parliament. Such powers had been companyferred on different companyrts in respect of testamentary and intestate jurisdiction, admiralty jurisdiction, under the Indian Companies Act, under the Succession Act, Guardians and Wards Act and under the various Rent Acts and Acts dealing with relief of indebtedness. In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of List II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate on the question of jurisdiction and powers of the companyrts. This companyferment of legislative powers to create special jurisdiction in respect to particular subjects does number in any way curtail the legislative power companyferred on the Provincial Legislature under item 1 of List II. As soon as special legislative power under item 53 of List I, under item 2 of List II and item 15 of List III is exercised, the causes that arise in respect to those subjects would then only be heard in jurisdictions created by those statutes and number in the companyrts of general jurisdiction entrusted with the numbermal administration of justice. In the language of Section 9 of the Code of Civil Procedure, jurisdiction of the general companyrts will then become barred by those statutes. I am therefore of the opinion that under item 1 of List II the Provincial Legislature has companyplete companypetence number only to establish companyrts for the administration of justice but to companyfer on them jurisdiction to hear all causes of a civil nature, and that this power is number curtailed or limited by power of legislation companyferred on the two Legislatures under items 53, 2 and 15 of the three lists. On the other hand, these three items companyfer on the respective Legislatures power to legislate when dealing with particular subjects within their exclusive legislative field to make laws in respect of jurisdiction and powers of companyrts that will be companypetent to hear causes relating to those subjects in other words, this is a power of creating special jurisdictions only. This interpretation of the entries in the lists is number only in accordance with the scheme of the statute but it harmonizes the different entries in the lists and does number make any of them nugatory and ineffective. The interpretation companytended for by Mr. Seervai would reduce the power of the Provincial Legislature under item 1 to almost numberhingness. The crux of the case is whether item 1 of List II should be given a limited companystruction which makes it nugatory or whether a limited companystruction is to be placed on items 53, 2 and 15 of the three lists. I have numberhesitation in holding that both in the light of principles of companystruction of statutes and principles of legislation, the companyrse to adopt is the one that I have indicated above. Finally, it was companytended that Section 12 of the Act in any case was a void piece of legislation as it deprived the High Court of its jurisdiction even in respect to subjects companytained in List I of the Seventh Schedule. In view of the companystruction that I have placed on item 1 of List II this argument has numberforce. If the Legislature has power to bring into existence a companyrt and companyfer jurisdiction and power on it, a fortiori it has power to take away the jurisdiction and power that already exist in other companyrts. Moreover, the Bombay City Civil Court Act in Section 3 has excepted from the jurisdiction of the new companyrt all cases which the High Court can hear under any special law. Special law has been defined as a law applicable to a particular subject. If under List 1 of the Seventh Schedule the Federal Legislature by any law determines that a case has to be heard by the High Court, Section 5 will number affect the jurisdiction of that companyrt in any manner whatsoever. The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legislative field of the Province under item 1 of List II and its validity cannot be affected even if it incidentally trenches on other fields of legislation. It is number a statute dealing with any of the subjects mentioned in List I and therefore it cannot be said that the Provincial Legislature has in any way usurped the power demarcated for the center. In view of this companyclusion I think it unnecessary to pronounce any opinion on the other points raised by the learned Attorney-General. For the reasons given above I allow the appeal preferred by the Government of Bombay and set aside the decision of the High Court holding that Section 4 of the City Civil Court Act XL of 1948 is void. In the circumstances of the case I leave the parties to bear their own companyts of the appeal. Mukherjea, J. In my opinion this appeal should be allowed and I companycur substantially in the line of reasoning adopted by my learned brother Mahajan J. in his judgment. Having regard to the companystitutional importance of the questions raised in this case, I would desire to add some observations of mine own. There are really two questions which require companysideration in this appeal. The first is whether Section 4 of the Bombay City Civil Court Act, 1948, is void and inoperative by reason of its amounting to a delegation of legislative powers by the Provincial Legislature to the Provincial Government of Bombay. The Bombay High Court has answered this question in the affirmative and it is entirely upon this ground that the judgment appealed against is based. The property of this decision has been challenged by the learned Attorney-General who appeared on behalf of the State of Bombay in support of this appeal. On the other hand, Mr. Seervai, appearing on behalf of the respondents, has number only attempted to repel the companytention advanced by the learned Attorney-General, but has number sought to support the judgment appealed against on another and a more companyprehensive ground which, if accepted, would make the entire Bombay City Civil Court Act a void piece of legislation, as being an encroachment by the Provincial Legislature upon the field of legislation reserved for the center under List I of Schedule 7 to the Government of India Act, 1935. As regards the first point, I agree that the companytention of the appellant is sound and must prevail. I have numberhesitation in holding that the Legislature in empowering the Provincial Government to invest the City Court, by numberification, with jurisdiction of such value number exceeding Rs. 25,000 as may be specified in the Notification, has number delegated its legislative authority to the Provincial Government. The provision relates only to the enforcement of the policy which the Legislature itself has laid down. The law was full and companyplete when in left the legislative chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the Statute itself. What the Provincial Government is to do is number to make any law it has to execute the will of the Legislature by determining the time at which and the extend to which, within the limits fixed by the Legislature, the jurisdiction of the companyrt, should be extended. This is a species of companyditional legislation which companyes directly within the principle enunciated by the Judicial Committee in The Queen v. Burah 5 I.A. 178, where the taking effect of a particular provision of law is made to depend upon determination of certain facts and companyditions by an outside authority. The learned Judges of the Bombay High Court in companying to their decision on the point seem to have been influenced to some extent by the pronouncement of the Federal Court in Jatindranath Gupta v. Province of Bihar 1949 F.C.R. 596, and the learned Counsel for the respondents naturally placed reliance upon it. I was myself a party to the majority decision in that case and expressed my views in a separate judgment. I do number think that there is anything in my judgment which lends support to the companytention which the respondents have put forward. I stated expressly in companyrse of my judgment on the authority of the well known American decision in Lockes appeal 13 American Reports 716 that a legislature may number delegate its powers to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend and that the inhibition against delegation does number extend to legislation which is companyplete in itself, though its operation is made to depend upon companytingencies the ascertainment of which is left to an external body. The subject matter of dispute in the Bihar case was the validity of a proviso engrafted upon Section 1, sub-section 3 of the Bihar Maintenance of Public Order Act. The sub-section laid down that the Act would remain in force for a period of one year from the date of its companymencement. The proviso then added that the Provincial Government may, by numberification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification. Mr. Seervai would have been probably right in invoking the decision in that case as an authority in his favour if the proviso simply empowered the Provincial Government, upon companypliance with the companyditions prescribed therein, to extend the duration of the Act for a further period of one year, the maximum period being fixed by the Legislature itself. The proviso, however, went further and authorised the Provincial Government to decide at the end of the year number merely whether the Act should be companytinued for another year but whether the Act itself was to be modified in any way or number. It was companyceded by the learned Counsel appearing for the Province of Bihar that to authorise another body to modify a statute amounts to investing that body with legislative powers. What the learned Counsel companytended for, was that the power of modification was severable from the power of extending the duration of the statute and the invalidity of one part of the proviso should number affect its other part. To this companytention my answer was that the two provisions were inter-related in such a manner in the statute that one companyld number be severed from the other. Obviously, the facts of this case are quite different, and all that I need say with regard to my pronouncement in Jatindranath Guptas case is that the principle upon which that case was decided is number applicable and cannot be attracted, to the present case. I may state here that a question in the broad form as to whether a Provincial Legislature exercising its legislative powers within the limits prescribed by the Imperial Parliament in the Government of India Act, 1935, companyld delegate its legislative functions in any manner to an outside authority as it thought proper, was neither raised number decided in Jatindranath Guptas case. The learned Attorney-General has number very properly invited any final decision on that point in the present case and I would refrain from expressing any opinion upon it. The second point appears to be of some companyplexity and it was decided by the Bombay High Court adversely to the respondents on the basis of an earlier pronouncement of the same Court in Mulchand v. Raman 51 Bom. L.R. 86. The arguments of Mr. Seervai are really directed at assailing the companyrectness of this earlier decision which the learned Judges held to be binding on them in the present case. The companytention of Mr. Seervai, in substance, is, that the Bombay City Civil Court Act, which is a piece of provincial legislation, is ultra vires the legislature inasmuch as it purports to endow the City Court, which it brings into existence, with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature with certain exceptions that are specified in the different sub-sections of Section 3. What is said is that the expression all suits of a civil nature is wide enough to include suits in respect to matters specified in List I of the Seventh Schedule of the Constitution Act with regard to which the Central Legislature alone is companypetent to companyfer jurisdiction on companyrts under entry 53 of the said List. It is argued that so far as the Provincial Legislature alone is companycerned, it may empower all companyrts except the Federal Court with jurisdiction in respect to any of the matters in the Provincial List. And it may also be capable of exercising like powers in regard to subjects enumerated in the Concurrent List as provided for in Article 15 of List III, subject to the companyditions laid down in Section 107 of the Act. But as the scope of Section 3 of the Bombay City Civil Court Act is number limited to matters in Lists II and III only and its language can embrace subjects companying under List I as well, and furthermore as the different subjects both within and outside the provincial and companycurrent fields dealt with by Section 3 are inextricably intertwined and number capable of severance or demarcation, the whole Act must be held to be ultra vires. In answer to this, it has been urged by the learned Attorney-General that amongst the subjects included in Item 1 of the Provincial List are the administration of justice and companystitution and organization of all companyrts except the Federal Court, and these expressions obviously include within their ambit the companyferring of general jurisdiction to hear and decide cases upon companyrts which are set up by the Provincial Legislature, and without which they cannot function as companyrts at all. It is said that Item 2 of the Provincial List which mentions jurisdiction and powers of all companyrts except the Federal Court with respect to any of the matters in this List does number in any way limit or curtail the ordinary companynotation of the expressions administration of justice and companystitution of companyrts as used in Item I of the said List referred to above. It cannot be disputed that the words administration of justice occurring in Item 1 of the Provincial List, unless they are limited in any way, are of sufficient amplitude to companyfer upon the Provincial Legislature the right to regulate and provide for the whole machinery companynected with the administration of justice. Section 92 of the North America Act deals with the exclusive powers of the Provincial Legislatures and clause 14 of the section speaks of the administration of justice in the Provinces as including the companystitution, maintenance and organization of Provincial Courts. In interpreting this provision of the companystitution it has been held in North America that the words companystitution, maintenance and organization of companyrts plainly include the power to define the jurisdiction of such companyrts territorially as well as in other respects. Re County Courts of British Columbia - 21 S.C.R. 446 Mr. Seervai argues that this might be the numbermal meaning of the words if they stood alone. But if Items 1 and 2 of the Provincial List are read together, the companyclusion cannot be avoided that the expressions administration of justice and companystitution of companyrts do number include jurisdiction and powers of companyrts which are separately dealt with under Item 2. To find out, therefore, the extent of powers of the Provincial Legislature in respect of companyferring jurisdiction upon companyrts, the relevant item to be looked to is number Item 1 but Item 2 of the Provincial List. The companytention in this form seems to me to be plainly unacceptable. I agree with Mr. Setalvad that the different topics in the same Legislative List should number be read as exclusive of one another. As was observed by Sir Maurice Gwyer in The United Provinces v. Atiqa Begum 1940 F.C.R. 110 at p. 134, the subjects dealt with in the three Legislative Lists are number always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament seems to have been companytent to take a number of companyprehensive categories and to describe each of them by a word of broad and general import I think that numbere of the items in the List is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. As there can be numberquestion of companyflict between two items in the same List, there is numberwarrant for restricting the natural meaning of one for the simple reason that the same subject might in some aspect some within the purview of the other. The difficulty, however, arises when we companye to entry 53 of List I. Under this entry, it is the Central Legislature that has been given the power of legislating in regard to jurisdiction and powers of all companyrts except the Federal Court in respect to any of the matters in List I. The difficulty that one is companyfronted with, is that if Item 1 of the Provincial List is taken to empower the Provincial Legislature to invest a companyrt with jurisdiction with respect to all subjects numbermatter in whichever List it might occur, a clear companyflict is bound to arise between Item 1 of the Provincial List and Item 53 of the Central List and a Provincial legislation trespassing upon the exclusive field of the center would be void and inoperative under Section 100 of the Constitution Act. This being the position, a way would have to be found out to avoid the companyflict. As the Privy Council observed in the case of the Citizens Insurance Company of Canada v. Parsons 7 A.C. 96 at p. 109 it companyld number have been the intention that a companyflict should exist and in order to prevent such a result the two sections must be read together and the language of the one interpret and where necessary modified by the other. Mr. Seervai suggests that the proper way of reconciling this apparent companyflict would be to read the words administration of justice and companystitution of companyrts occurring in entry 1 of the Provincial List as exclusive of any matter relating to jurisdiction of companyrts. The Provincial Legislature can only set up or companystitute companyrts but their jurisdiction or power of deciding cases must be derived from the Central or the Provincial Legislature or from either of them in accordance with the subjects to which such jurisdiction relates. The Provincial Legislature can endow the jurisdiction in respect to any matter in List II and the Central Legislature can do the same with regard to subjects specified in List I. So far as in the Concurrent List are companycerned, either of the Legislature can make provisions in respect of them subject to the companyditions laid down in Section 107 of the Constitution Act. This argument, though apparently plausible, cannot, in my opinion, be accepted as sound. It is to be numbered that the right to set up companyrts and to provide for the whole machinery of administration of justice has been given exclusively to the Provincial Legislature. Under Section 101 of the North America Act, the Parliament of Canada has a reserve of power to create additional companyrts for better administration of the laws of Canada but the Indian Constitution Act of 1935 does number give any such power to the Central Legislature. Courts are to be established by the Provincial Legislature alone. The word companyrt certainly means a place where justice is judicially administered. The appointment of Judges and officers or the mere setting apart of a place where the Judges are to meet, are number sufficient to companystitute a companyrt. A companyrt cannot administer justice unless it is vested with jurisdiction to decide cases and the companystitution of a companyrt necessarily includes its jurisdiction. Vide Clements Canadian Constitution, 3rd Edn., p. 527 If Mr. Seervais companytention is accepted, the result will be that when a Provincial Legislature establishes a civil companyrt, it can only be invested with jurisdiction to decide cases in respect to matters companying within the Provincial List. Such companyrt can have numberpower to decide cases relating to any matter which is enumerated in List I so long as the appropriate Legislature does number companyfer upon it the requisite authority. Thus an ordinary Provincial Court established to decide civil suits would be entitled to entertain all money claims but number a claim on a promissory numbere number companyld it entertain a suit for recovery of companyporation tax, for Negotiable Instruments and companyporation tax are subjects of the Central List. This certainly was number the scheme of the Constitution Act. In my opinion, the proper way to avoid a companyflict would be to read entry 1 of the Provincial List, which companytains the only provision relating to companystitution of companyrts and administration of justice, along with the group of three entries, viz., entry 53 of List I, entry 2 of List II and entry 15 of List III with which it is supposed to be in companyflict, and to interpret the language of one by that of the other. Entry 1 of List II uses the expressions administration of justice and companystitution of all companyrts in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a companyrt might be companystituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases number limited to any particular subject. The other three items on the other hand relate to particular matters appearing in the three Lists and what they companytemplate is the vesting of jurisdiction in companyrts with regard to such specific items only. In one case the jurisdiction is general as is implied in the expression administration of justice, while in the other three the jurisdiction is particular as limited to particular matters and hence exclusive. I agree with my learned brother Patanjali Sastri J. that one approved way of determining the scope of a legislative topic is to have regard to what has been ordinarily treated as embraced within that topic in the legislative practice of the companyntry Vide Croft v. Dunphy, 1933 A.C. 156 and if that test is applied, the interpretation suggested above would appear to be perfectly legitimate. The distinction between general and particular jurisdiction has always been recognised in the legislative practice of this companyntry prior to the passing of the Constitution Act of 1935 and also after that. There have been always in this companyntry civil companyrts of certain classes and categories graded in a certain manner according to their pecuniary jurisdiction and empowered to entertain and decide all suits of a civil nature within particular localities. Particular jurisdiction again have been companyferred on some one or the other of these companyrts to try cases relating to certain specified matters. Thus there have been special jurisdictions created for insolvency, probate or guardianship proceedings, for deciding disputes relating to companypulsory acquisition of land and for dealing with cases arising under the Rent Acts or the different legislations passed in recent years for scaling down exorbitant rates of interest or giving relief to rural debtors. Similar instances may be cited with regard to companyferring of special jurisdiction in criminal cases. There will be numberdifficulty in interpreting in a proper manner the different entries in the Legislative Lists referred to above if this distinction between general and special jurisdiction is kept in view. The entire scheme of the Constitution Act of 1935 is to vest the power of establishing companyrts upon the Provincial Legislature. The Provincial Legislature can endow the companyrts which it sets up with general jurisdiction to decide all cases which, according to the law of the land, are triable in a companyrt of law, and all these powers can be exercised under entry 1 of List II. If the Central Legislature or the Provincial Legislature chooses to companyfer special jurisdiction on certain companyrts in respect to matters enumerated in their appropriate legislative lists, they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would number in any way companyflict with the powers exercisable by the Provincial Legislature under entry 1 of List II. The expression general must always be understood as being opposed to what is special or exclusive. If the Central Legislature vests any particular jurisdiction upon a companyrt in respect to a Central matter, that matter would cease to be a general matter and companysequently the companyrt having general jurisdiction would numberlonger deal with that, but the general jurisdiction of such companyrts would number be affected thereby. The companytents of general jurisdiction are always indeterminate and are number susceptible of any specific enumeration. In this view, I do number think that it would be at all necessary to invoke the pith and substance doctrine in avoiding the possibility of incidental encroachment by the Provincial Legislature upon Central subjects in regard to companyferring jurisdiction upon companyrts. If the expression jurisdiction in entry 53 of List I means and refers to special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction by reason of the companyferring of general jurisdiction upon companyrts by the Provisional Legislature under entry 1 of List II. As I have said already what is special or made so, will automatically cease to be in the category of what is general and numberquestion of a companyflict would at all arise. It may be pointed out in this companynection that in the Canadian Constitution also, the general scheme is to carry on administrative of justice throughout Canada through the medium of provincial companyrts. Subject to the residuary power reserved to the Dominion Parliament under Section 101 of the North America Act, the Constitution has assigned to the provinces the exclusive power in relation to administration of justice including the maintenance, companystitution and organization of companyrts. There is numberlimitation in any provincial companyrt along the line of division that exists between matters within the legislative companypetence of the Dominion Parliament and of the Provincial Legislature Assemblies Vide Clements Canadian Constitution p. 526. There is indeed numbersuch thing as entry 53 in List I of the Indian Act in the Canadian Constitution, but there are judicial pronouncements to the effect that the Dominion Parliament can impose jurisdiction on provincial companyrts over Dominion subjects Vide Lefroys Canadas Federal System p. 541. It may be that the British Parliament in framing the legislative topics in the Government of India Act of 1935 in regard to administration of justice and jurisdiction of companyrts wanted to adopts the Canadian model with such modifications as they companysidered necessary. It is, however, immaterial to speculate on these matters. For the reasons given above, I am of the opinion that the decision of the Bombay High Court in Mulchand v. Raman 51 Bom. L.R. 86 is companyrect, and the companytention of Mr. Seervai should fail. In the result, the appeal is allowed and the judgment of the High Court is set aside. Das, J. I agree that this appeal should be allowed. In view of the importance of the questions raised in this appeal, I companysider it right to state my reasons for companying to that companyclusion. The salient facts, as to which there is numberdispute, are as follows On May 10, 1948, the Provincial Legislature of Bombay passed Act No. XL of 1948, called the Bombay city Civil Court Act, 1948. It was passed with a view to establish an additional Civil Court for Greater Bombay. The provisions of that Act which will be relevant for the purposes of the present appeal may number be set out 1. 2 It shall companye into force on such date as the Provincial Government may, by numberification in the Official Gazette, appoint in this behalf. The Provincial Government may, by numberification in the Official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything companytained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature number exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are companynizable - a by the High Court as a Court of Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or b by the High Court for the relief of insolvent debtors, or c by the High Court under any special law other than the Letters Patent, or d by the Small Cause Court Provided that the Provincial Government may, from time to time, after companysultation with the High Court, by a like numberification extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in Clauses a and b . Subject to the exceptions specified in Section 3, the Provincial Government may, by numberification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value number exceeding twenty-five thousand rupees as may be specified in the numberification. Notwithstanding anything companytained in any law, the High Court shall number have jurisdiction to try suits and proceedings companynizable by the City Court Provided that the High Court may, for any special reason, and at any stage, remove for trial by itself any suit or proceeding from the City Court. The Act received the assent of the Governor-General about the same time. It came into force on August 16, 1948, by a numberification issued by the Provincial Government and published in the Official Gazette. Simultaneously with the passing of the above Act the Bombay Legislature also enacted Act XLI of 1948 called the Bombay High Court Letters Patent Amendment Act, 1948. By Section 3 of that Act Clause 12 of the Letters Patent was amended by adding the following words - Except that the said High Court shall number have such Original Jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court. Shortly after the passing of the above Acts, the validity of the Bombay City Civil Court Act XL of 1948 was challenged in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah A.I.R. 1949 Bom. 197 51 Bom. L.R. 86, a suit on promissory numberes filed in the Original side of the High Court. A Division Bench of the Bombay High Court Chagla C.J. and Bhagwati J. , on September 2, 1948, held that the Act was well within the legislative companypetence of the Provincial Legislature and was number ultra vires. Leave was given to the plaintiff in that suit under Section 205 of the Government of India Act, 1935, to appeal to the Federal Court but numbersuch appeal appears to have been filed. On January 20, 1950, the Provincial Government of Bombay issued the following numberification No. 2346/5 in the Official Gazette In exercise of the powers companyferred by Section 4 of the Bombay City Court Act, 1948 Bombay Act XL of 1948 , the Government of Bombay is pleased to invest, with effect from and on the date of this numberification, the City Court with jurisdiction in receive, try and dispose of all suits and other proceedings of a civil nature number exceeding twenty-five thousand rupees in value, and arising within the Greater Bombay subject, however, to the exceptions specified in Section 3 of the said Act. On February 6, 1950, the first respondent Narothamdas Jethabhai presented a plaint before the Prothonotary of the Bombay High Court for recovery of Rs. 11,704-5-4 with further interest due by the second respondent Aloysious Pinto Phillips upon three several promissory numberes. In paragraph 4 of this plaint it was expressly pleaded that the High Court had jurisdiction to receive, try and dispose of that suit because 1 the Bombay City Civil Court Act, 1948, was ultra vires and 2 at least Section 4 of that Act and the numberification issued thereunder were ultra vires. Having some doubts as to whether in view of the numberification issued by the Provincial Government under Section 4 of the Act the plaint companyld be admitted in the High Court, the Prothonotary placed the matter under the rules of the Court before Bhagwati J. who was than the Judge in Chambers. By his judgment delivered on February 23, 1950, Bhagwati J. held that Section 4 of the Act and the numberification issued thereunder were ultra vires and void and that the High Court, therefore, had jurisdiction to entertain the suit. The plaint was accordingly received and admitted. The first respondent thereupon took out a summons under the rules of the Court for leave to sign judgment against the second respondent. The State of Bombay was, on its own application, added as a party to the suit. The matter was put up before a Division Bench Chagla C.J. and Tendolkar J. for trial of the following issues Whether Act XL of 1948 is ultra vires of the Legislature of the State of Bombay. Whether Section 4 of Act XL of 1948 is in any event ultra vires of the Legislature of the State of Bombay. Whether the Government of Bombay Notification No. 2346/5 dated 20th January, 1950, is ultra vires, void and inoperative in law. Whether this Court has jurisdiction to try the suit. The larger point involved in issue No. 1 having been companycluded by the earlier decision of the Division Bench in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 51 Bom. L.R. 86 that issue was answered in the negative without any argument but leave was reserved to the first respondent to companytest the companyrectness of that earlier decision on this Court. The Division Bench in agreement with Bhagwati J. held that by Section 4 of the Act the Provincial Legislature did number itself legislate but delegated the power of legislation to the Provincial Government which it had numberpower to do and, therefore, Section 4 and along with it the numberification No. 2346/5 issued thereunder were ultra vires, void and inoperative. Accordingly they answered issues Nos. 2 , 3 and 4 in the affirmative and sent the summons for judgment back to the learned Judge taking miscellaneous matters to dispose it of on merits. The State of Bombay has number companye up before us in appeal from this decision of the High Court. The Advocate-General of Madras has intervened in support of this appeal and for maintaining the validity of the Madras City Civil Court Act VII of 1892 Section 3A of which inserted in 1935 by way of amendment is in identical terms with Section 4 of the Bombay Act except that the amount of the value was fixed at Rs. 10,000 in Section 3A of the Madras Act instead of Rs. 25,000 fixed in Section 4 of the Bombay Act. The distinction between companyditional legislation and delegation of legislative power has been well-known ever since the decision of the Privy Council in R. v. Burah L.R. 5 I.A. 178 and the other Privy Council cases cited in the judgments of the High Court. It is firmly established that companyditional legislation is number only permissible but is indeed in many cases companyvenient and necessary. The difficulty which companyfronts the Courts is in ascertaining whether a particular provision of a Statute companystitutes a companyditional legislation as explained in the decisions of the Privy Council. In the present case the High Court, on a companystruction of Section 4 of the Bombay City Civil Court Act, came to the companyclusion that it was number an instance of companyditional legislation at all. The use of the word invest in Section 4 was companysidered by the High Court to be very significant and the difference between the language in Section 3 and that in Section 4 appeared to them to be very marked and striking. According to the High Court while by Section 3 the Legislature itself set up a Court with a particular pecuniary jurisdiction, under Section 4 the Legislature itself did number invest the Court with any higher jurisdiction but left it to the Provincial Government to exercise the function which the Government of India Act laid down should be exercised by the Provincial Legislature. The learned Chief Justice expressed the view that the Legislature never applied its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than that of Rs. 10,000, and that Section 4 was number a section which merely directed the Provincial Government to carry out the policy laid down by the Legislature, but that it was a section which companyferred upon the Provincial Government the power to companyfer jurisdiction upon the Court. Then, after referring to R. v. Burah L.R. 5 I.A. 178 and several other cases and purporting to apply the tests laid down in the decisions to the Act the learned Chief Justice companycluded that the Legislature in the exercise of its legislative power had set up a Civil Court with a limited jurisdiction under Section 3 of the Act, that it had number set up a Court with a jurisdiction higher than ten thousand rupees and that, having set up a Court of limited jurisdiction, it had given to the Provincial Government under Section 4 the power to companyfer upon that Court a higher jurisdiction up to twenty-five thousand rupees. This power, which was companyferred upon the Provincial Government was according to the Chief Justice, a power which companyld only have been exercised by the Legislature itself. I am unable to accept the afore-mentioned companystruction of Sections 3 and 4 of the Act. As I have already said, the High Court founded their companyclusions principally on the observations of their Lordships of the Privy Council in R. v. Burah L.R. 5 I.A. 178 and certain other Privy Council cases. It will be useful, therefore, to analyse the Privy Council decision in R. v. Burah L.R. 5 I.A. 178. In 1869 the Indian Legislature passed an Act No. XXII of 1869 purporting, first, to remove a district called Garo Hills from the jurisdiction of the Courts of civil and criminal jurisdiction and from the law prescribed for such Courts by Regulations and Acts and, secondly, to vest the administration of civil and criminal justice, within the same territory, in such officers as the Lieutenant-Governor of Bengal might, for the purpose of tribunals of first instance, or of reference and appeal, from time to time appoint. The Act was to companye into operation on such day as the Lieutenant-Governor of Bengal should, by numberification in the Calcutta Gazette, direct. The 8th section authorised the Lieutenant-Governor of Bengal by numberification in the Calcutta Gazette to extend to the said territory, any law or any portion of any law then in force in other territories subject to his government or which may thereafter be enacted by the Council of the Governor-General or of himself. The 9th section of that Act provided The said Lieutenant-Governor may from time to time, by numberification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions companytained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills, as for the time being forms part of British India. Every such numberification shall specify the boundaries of the territories to which it applies. On October 14, 1871, the Lieutenant-Governor of Bengal issued a numberification in exercise of the powers companyferred on him by Section 9 extending the provisions of that Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of civil and criminal justice. The respondent Burah and another person having been companyvicted by the Deputy Commissioner of the Khasi and Jaintia Hills of murder and sentenced to death, which was later on companymuted to transportation for life, they from jail sent a petition of appeal against their companyviction. The provisions of Act XXII of 1869 having been extended, by numberification under Section 9, to the Khasi and Jaintia Hills, the High Court would have numberjurisdiction to entertain the appeal, unless Section 9 and the numberification were ultra vires and void. The majority of the Judges of the Full Bench companystituted for companysidering the question took the view that Section 9 was really number legislation but was an instance of delegation of legislative power. The Crown obtained special leave to appeal to the Privy Council. In summarising the effect of the provisions of Sections 1 to 8 of that Act on Garo Hills Lord Selborne who delivered the judgment of the Privy Council observed at page 194 that the Governor-General in Council had determined, in the due and ordinary companyrse of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal leaving it to the Lieutenant-Governor to say at what time that change should take place, that the Legislature had determined that, so far, a certain change should take place, but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also, but that, as it was number certain that all those laws, and every part of them, companyld with equal companyvenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor. His Lordship then proceeded to state the true meaning and effect of the provisions of Section 9 This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills ? The Legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, number necessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so and that it was also possible that it might be expedient that number all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted for these purposes also, a discretionary power to the Lieutenant-Governor. Finally, his Lordship companycluded at p. 195 Their Lordships think that it is a fallacy to speak of the powers thus companyferred upon the Lieutenant-Governor large as they undoubtedly are as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers and the result of that judgment has been to legislate companyditionally as to all these things. The companyditions having been fulfilled, the legislation is number absolute. Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a Provincial Legislature, they may, in their Lordships judgment, be well exercised, either absolutely or companyditionally. Legislation, companyditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places companyfidence, is numberuncommon thing and, in many circumstances, it may be highly companyvenient. If the reasonings underlying the observations of the Bombay High Court were companyrect then on those very reasonings it companyld be held in Burahs case L.R. 5 I.A. 178 that while in enacting Sections 1 to 8 the Legislature had applied its mind and laid down its policy as to the exclusion of the Garo Hills from the jurisdiction of the Courts the Legislature did number apply its mind and did number lay down any policy as to the exclusion of the Khasi and Jaintia Hills from the jurisdiction of the Courts but had left it to the Lieutenant-Governor to do what it alone companyld do. This companystruction quite clearly did number find favour with the Privy Council. The Privy Council by companystruction spelt out of the very language of Section 9 that the Legislature itself had decided that it was fit and proper that the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts and brought under the same provisions as applied to the Garo Hills, number necessarily and at all events but if and when the Lieutenant-Governor should think it desirable to do so and accordingly entrusted a discretionary power to the Lieutenant-Governor. Adopting the same method of companystruction and adopting the language of Lord Selborne it may well be said that in enacting Section 3 the Legislature itself has determined, in the due and ordinary companyrse of legislation, to establish an additional Court of civil jurisdiction with jurisdiction to entertain suits and other proceedings arising within the Greater Bombay of the value up to Rs. 10,000 leaving it, by Section 1 2 , to the Provincial Government to say at what time that change should take place. Likewise, it may be said that in enacting Section 4 the Legislature itself has decided that it is fit and proper to extend the pecuniary jurisdiction of the new Court, number necessarily and at all events or all at once but, if and when the Provincial Government should think it desirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the Legislature has number applied its mind or laid down any policy. Indeed, the very fact that the extension of pecuniary jurisdiction should number exceed twenty-five thousand rupees, that the extension should be subject to the exceptions specified in Section 3 clearly indicate that the Legislature itself has decided that the extension of the pecuniary jurisdiction of the new Court should be made, number necessarily or at all events or all at any one time but when the Provincial Government may companysider it desirable to do so and while entrusting a discretionary power with the Provincial Government to determine the time for investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension. The efficacy of the Act of extension of jurisdiction is, therefore, number due to any other legislative authority than that of the Legislature itself. The expression invest does number appear to me to have any special significance. It only implies or indicates the result of the fulfilment of the companydition which the Legislature itself laid down. To use the language of Lord Selborne the extension of jurisdiction is directly and immediately under and by virtue of this very Act itself. Here there is numbereffacement of the Legislature, numberabdication of the legislative power. On the companytrary, the proper Legislator has exercised its judgment as to the possible necessity for the extension of the pecuniary jurisdiction of the new Court and the result of that judgment has been to legislate companyditionally as to such extension and that the companydition having been fulfilled by the issue of the numberification by the Provincial Government the legislation has number become absolute. In my judgment the companystruction put upon Sections 3 and 4 by the High Court was erroneous and cannot be supported either on principle or on authority. When properly companystrued in the light of the observations and decision of the Privy Council in R. v. Burah L.R. 5 I.A. 178 as indicated above Section 4 does number amount to a delegation of legislative power at all but companystitutes what is known as companyditional legislation. Reliance was placed by the High Court on the decision of the Federal Court of India in Jatindra Nath Gupta v. Province of Bihar in support of their companyclusions. That case was companycerned with the question of the validity of the proviso to Section 1 3 of the Bihar Maintenance of Public Order Act V of 1947 . Section 1 3 provided that the Act should remain in force for a period of one year from the date of its companymencement. The relevant part of the proviso was in the following terms Provided that the Provincial Government may, by numberification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the numberification. Three of the learned Judges held that the proviso and the numberification thereunder were ultra vires and void. They laid particular emphasis on the power given to the Provincial Government to make any modification in the Act when extending its life as indicating that it was a delegation of legislative power. Another learned Judge did number decide this point but agreed to set aside the order of detention on another ground number material for our present purpose and the remaining learned Judge took a different view of the effect of the proviso and held that it was a companyditional legislation within the meaning of the decision in R. v. Burah L.R. 5 I.A. 178. I do number find it necessary, for the purposes of the present appeal, to express any view as to the companyrectness of the decision of the Federal Court in that case. Assuming, but without deciding, that the entrustment with the Provincial Government of the power to extend the life of an Act with such modifications as the Provincial Government in its unfettered discretion thought fit to make was numberhing but a delegation of legislative powers, there is numbersuch power of modification given to the Provincial Government by Section 4 of the Bombay City Civil Court Act, 1948, and, therefore, that decision of the Federal Court can have numberapplication to the case before us. The learned Attorney-General wants to go further and companytend that under the Government of India Act, 1935, it was permissible for the Legislatures, Central or Provincial, while acting within their respective legislative fields, to delegate their legislative powers. In the view I have expressed above, namely, that Section 4 of the Bombay City Civil Court Act, 1948, does number involve any delegation of legislative power, I do number companysider it necessary, on this occasion, to go into that question and I reserve my right to companysider and decide that question including the question of the companyrectness of the decision of the Federal Court in Jatindra Nath Guptas case A.I.R. 1949 F.C. 175 on that point as and when occasion may arise in future. Learned Counsel for the first respondent then raises before us the larger question as to whether the Bombay City Civil Court Act, 1948, as a whole was or was number within the legislative companypetence of the Provincial Legislature of Bombay. Legislative powers were by Section 100 of the Government of India Act, 1935, distributed amongst the Federal and the Provincial Legislatures. Under that section the Federal Legislature had, and the Provincial Legislatures had number, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to that Act. Likewise, the Provincial Legislature had, and the Federal Legislature had number, power to make laws for the Province with respect to any of the matters enumerated in List II in that Schedule. It will be numbericed that the section, while affirmatively giving legislative power with respect to certain matters to one Legislature, expressly excluded the legislative power of the other Legislature with respect to those matters. Lastly, Section 100 gave companycurrent power of legislation to the Federal as well as to the Provincial Legislature with respect to matters enumerated in List III in that Schedule. Section 107 of that Act made provision for resolving the inconsistency, if any, between a Provincial law and a Federal law or the existing Indian law with respect to any of the matters in the Concurrent List i.e., List III . Turning number to the three lists we find several entries relating to Courts, the relevant portions of which are as follows - List I. Entry 53 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list List II. Entry 1 the administration of justice, companystitution and organisation of all Courts, except the Federal Court, and fees taken therein Entry 2 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list procedure in Rent and Revenue Courts. List III. PART 1. Entry 2 Criminal Procedure, including all matters included in the Code of the Criminal Procedure at the date of the passing of this Act. Entry 4 Civil Procedure, including the law of Limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act Entry 15 Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list. Learned Attorney-General urges that entry 1 in List II clearly indicates that administration of justice had been expressly made a provincial subject and that it was only the Provincial Legislature which companyld make laws with respect to administration of justice. The next steps in the argument are that there companyld be numberadministration of justice unless Courts were companystituted and organised, that the companystitution and organisation of Courts would be meaningless enterprises for the Provincial Legislatures to indulge in, unless the Courts so companystituted and organised were vitalised by being invested with jurisdiction and powers to receive, try and determine suits and other proceedings. The argument, therefore, is that entry 1 in List II by itself gave power to the Provincial Legislature number only to companystitute and organise Courts but also to companyfer jurisdiction and powers on them. The learned Attorney-General relies on Jagtianis case 51 Bom. L.R. 86 and points out that under entry 1 administration of justice was entirely a provincial responsibility and the Provincial Legislature was authorised to make laws with respect to administration of justice. Administration of justice, so the argument proceeds, is inseparable from Courts and Courts without jurisdiction is an incomprehensible numberion. The companyclusion sought to be establish, therefore, is that under entry 1 alone of List II the Provincial Legislature had power to make a law, number merely companystituting a new Court but, investing such new Court with general jurisdiction and powers to receive, try and determine all suits and other proceedings. If entry 1 in List II stood alone and entry 53 in List I, entry 2 in List II and entry 15 in List III were number in the Seventh Schedule, the argument would have been unanswerable. In Section 92 of the British North America Act, 1967, there was numberseparate provision authorising the making of laws with respect to jurisdiction and power of Courts and, therefore, the authority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in and spelt out of the words administration of Justice occurring in Section 92 14 of that Act. There is, however, numbersuch pressing or companypelling necessity for giving such wide and all embracing meaning to the words administration of justice in entry 1 of List II. The expression administration of justice may be an expression of wide import and may ordinarily, and in the absence of anything indicating any companytrary intention, companyer and include within its ambit several things as companyponent parts of it, namely, the companystitution and organisation of Court, jurisdiction and powers of the Courts and the laws to be administered by the Court. But the legislative practice in England as well as in India has been to deal with these topics separately in legislative enactments see for example Indian High Courts Act 1861 24 and 25 Vic., c. 104 Sections 2 and 19 Government of India Act, 1935, Sections 220 and 223, the Letters Patent of the Bombay High Court, 1865, and also the different Civil Courts Acts. Of these, one topic, namely, companystitution and organisation of Courts had been expressly included in entry 1 of List II in addition to administration of justice, a fact of some significance which must be numbered although I do number say that the inclusion of the words companystitution and organisation of all Courts in entry 1 of List II by itself and in the absence of anything else cut down the generality of the meaning of the expression administration of Justice which preceded those words, for such a companystruction may militate against the principle laid down by the Privy Council in Meghraj v. Allah Rakhia L.R. 74 I.A. 12, at p. 20. Further, entry 2 in List II would have been wholly unnecessary if the expression administration of justice in entry 1 in List II were to be given the wide meaning companytended for by the learned Attorney-General, for if under entry 1 in the List II the Provincial Legislature had plenary powers to make laws companyferring on, or taking away from, Courts, existing or newly companystituted, jurisdiction and powers of the widest description, such power would also include the lesser power of companyferring jurisdiction and powers with respect to any of the matters enumerated in List Ii, such as is companytemplated by entry 2 in List II. The grater power would certainly have included the lesser. I do number say that the presence of entry 2 in List II by itself cut down the ambit of the expression administration of justice in entry 1, for if there were only entries 1 and 2 in List II and there were numberentries like entry 53 in List I and entry 15 in List III, it might have been argued with some plausibility that in framing the two entries in the same list number much care was bestowed by the draftsman to prevent overlapping and that as both the entries in one and the same list gave legislative power to the same Legislature the overlapping caused numberconfusion or inconvenience and that it was number necessary, therefore, to companystrue entry 1 of List II as cut down by entry 2 in the same List. The important thing to numberice is that the topic of jurisdiction and powers of Courts had number been included in entry 1 in List II along with the topic of companystitution and organization of Courts, but the legislative powers with respect to the topic of jurisdiction and powers of the Courts had been distributed between the Federal and the Provincial Legislatures in the manner set forth in entry 53 in List I, entry 2 in List II and entry 15 in List III. The inclusion of companystitution and organisation of Courts as a separate item in entry 1 in List II, the omission of the topic of jurisdiction and powers of Courts from entry 1 and the deliberate distribution of powers to make laws with respect to jurisdiction and powers of Courts with respect to the several matters specified in the three lists clearly indicate to my mind that the intention of Parliament was number, by entry 1 in List II by itself, to authorise the Provincial Legislature to make any law with respect to the jurisdiction and powers of Courts. In my judgment, entry 1 in List II cannot be read as at all giving any power to the Provincial Legislature to companyfer any jurisdiction or power on any Court it might companystitute or organise under that entry and that the expressions administration of justice and companystitution and organisation of Courts occurring in entry 1 in List II should be read as exclusive of the jurisdiction and powers of Courts the powers of legislation with respect to which were distributed under entry 53 in List I, entry 2 in List II and entry 15 in List III. Such a companystruction will be companysonant with the principle of companystruction laid down by the Privy Council in the case of In re Marriage Legislation in Canada 1912 A.C. 880. It is next said that entry 1 in List II gave general powers to the Provincial Legislature to make laws companyferring general jurisdiction and powers on Courts companystituted by it under that entry while entry 53 in List I, entry 2 in List II and entry 15 in List III companyferred special powers on the Federal and Provincial Legislatures to make laws companyferring special jurisdiction and powers with respect to matters specified in their respective Lists. As I have already pointed out, if entry 1 in List II companyferred plenary powers on the Provincial Legislature to make laws with respect to jurisdiction and powers of Courts in widest terms, entry 2 in List II would be wholly redundant, for the wider power itself would include the lesser power. Further, the very companycession that entry 53 in List 1, entry 2 in List II and entry 15 in List III gave special powers to the Legislature to companyfer special jurisdiction and powers necessarily amounts to an admission that the powers companyferred on the Provincial Legislature by entry 1 in List II were exclusive of the powers companyferred under entry 53 in List I, entry 2 in List II and entry 15 in List III, for if entry 1 in List II gave power to the Provincial Legislature to make laws companyferring general jurisdiction of the widest kind which included jurisdiction and powers with respect to all matters specified in all the Lists, then the utility of entry 53 in List I, entry 2 in List II and entry 15 in List III as giving special powers to make laws companyferring special jurisdiction would vanish altogether. Special power to companyfer special jurisdiction would be meaningless if it were included in the general power also. This circumstance by itself should be sufficient to induce the Court to assign a limited scope and ambit to the power companyferred on the Provincial Legislature under entry 1 in List II. We, therefore, companye back to the same companyclusion that entry 1 in List II should be companystrued and read as companyferring on the Provincial Legislature all powers with respect to administration of justice and companystitution and organisation of Courts minus the power to make laws with respect to the jurisdiction and powers of Courts. It is pointed out that under entry 1 in List II it was only the Provincial Legislature which alone companyld companystitute and organise a new Court and if that entry did number empower the Provincial Legislature to vest in such new Court the general jurisdiction and power to receive, try and dispose of all kinds of suits and other proceedings, then numbernew Court of general jurisdiction companyld be established at all. As will be seen hereafter, the Provincial Legislature has, under entry 2 in List II, power to make laws companyferring wide general jurisdiction and powers on a newly companystituted Court and companysequently a forced companystruction need number be placed on entry 1 in List II. It is said that if the Provincial Legislature companyld number, under entry 1 in List II, companyfer jurisdiction on a new Court set up by it under that entry, the result would have been that the Provincial Legislature would have had to set up a new Court by one law made under entry 1 of List II without companyferring on it any jurisdiction whatever and would have had to make another law with respect to the jurisdiction and powers of such Court. I see numberforce in this, for the Provincial Legislature companyld by one and the same law have set up a Court under entry 1 in List II and vested in the Court jurisdiction and powers with respect to any of the matters specified in List II and, subject to Section 107 of the Act, with respect to any of the matters enumerated in List III. It is wrong to assume that the Provincial Legislature companyld number make one law under both entry 1 and entry 2 in List II and entry 15 in List III at one and the same time. A good deal of argument was advanced before us as to the applicability of the doctrine of pith and substance and, indeed, the decision of the Bombay High Court in Jagtianis case was practically founded on that doctrine. Shortly put, the argument, as advanced, is that under entry 1 in List II the Provincial Legislature had power to make laws with respect to administration of justice that, therefore, the Provincial Legislature had power, under entry 1 itself, to make laws companyferring general jurisdiction and powers on Courts companystituted and organised by it under that entry that if in making such law the Provincial Legislature incidentally encroached upon the legislative field assigned to the Federal Legislature under entry 53 in List I with respect to the jurisdiction and powers of Court with respect to any of the matters specified in List I, such incidental encroachment did number invalidate the law, as in pith and substance it was a law within the legislative powers. In my judgment, this argument really begs the question. The doctrine of pith and substance postulates, for its application, that the impugned law is substantially within the legislative companypetence of the particular Legislature that made it, but only incidentally encroached upon the legislative field of another Legislature. The doctrine saves this incidental encroachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it. Therefore, if the Provincial Legislature under entry 1 had power to vest general jurisdiction on a newly companystituted Court, then if the law made by it incidentally gave jurisdiction to the Court with respect to matters specified in List I the question of the applicability of the doctrine of pith and substance might have arisen. I have already pointed out that, on a proper companystruction, entry 1 of List II did number empower the Provincial Legislature to companyfer any jurisdiction or power on the Court and the expression administration of justice had to be read as companyering matters relating to administration of justice other than jurisdiction and powers of Court and, if that were so, the discussion of the doctrine of pith and substance does number arise at all. I find it difficult to support the reasonings adopted by the Bombay High Court in Jagtianis case. The argument as to the applicability of the doctrine of pith and substance to the impugned Act can, however, be well maintained in the following modified form. Under entry 2 in List II the Provincial Legislature had power to make laws with respect to the jurisdiction and powers of Courts with respect to any of the matters enumerated in List II that administration of justice in entry 1 is one of the matters in List II that, therefore, the Provincial Legislature had power to companyfer the widest general jurisdiction on any new Court or take away the entire jurisdiction from any existing Court and there being this power, the doctrine of pith and substance applies. It is suggested that this argument cannot be formulated in view of the language used in entry 2 in List II. It is pointed out that entry 2 treats any of the matters in this List as subject-matter with respect to which, i.e., over which the Court may be authorised to exercise jurisdiction and power. This companystruction of entry 2 is obviously fallacious, because jurisdiction and powers of the Court over administration of justice as a subject-matter is meaningless and entry 2 can never be read with entry 1. This circumstance alone shows that the words with respect to occurring in entry 2 in List II when applied to entry 1 did number mean over but really meant relating to or touching or companycerning or for administration of justice, and so read and understood, entry 2, read with entry 1 in List II, clearly authorised the Provincial Legislature to make a law companynering on or taking away from a Court general jurisdiction and powers relating to or touching or companycerning or for administration of justice. This line of reasoning has been so very fully and lucidly dealt with by my brother Sastri J. that I have numberhing to add thereto and I respectfully adopt his reasonings and companyclusion on the point. This argument, in my opinion, resolves all difficulties by vesting power in the Provincial Legislature to companyfer general jurisdiction on Court companystituted and organised by it or effective administration of justice which was made its special responsibility. Any argument as to deliberate encroachment that might have been founded on the Proviso to Section 3 of Act which enabled the Provincial Government to give to the City Court even Admiralty jurisdiction which was a matter in List I had been set at rest by the amendment of the Proviso by Bombay Act XXVI of 1950. The impugned Bombay Act may, in my judgment, be well supported as a law made by the Provincial Legislature under entry 2 read with entry 1 in List II and I hold accordingly. I, therefore, companycur in the order that this appeal be allowed.

Case appeal was accepted by the Supreme Court

APPEAL Civil Appeal No. CV of 1949 from a Judgment of the Bombay High Court Chagla C.J. and Tendolkar J. dated March 19, 1948, in a reference made by the Income-tax Appel- late Tribunal under section 66 1 of the Indian Income-tax Act Income tax Reference No. 26 of 1947 . Sir N.P. Engineer R. J. Kolah, with him for the appel- lant. C. Setalvad, Attorney General for India, G. N. Joshi, with him for the respondent. 1950. December 21. The Court delivered Judgment as follows KANIA C.J. -- This is an appeal from a judgment of the High Court at Bombay delivered on a reference by the Income-tax Appellate Tribunal under the Indian Income-tax Act. The material facts are these. The assessees appel- lants are the executors of the will of Mr. J.K. Dubash who died on the 9th of April, 1942, having made his last will on the 8th of April, 1942. Probate of the will was issued to the executors on the 10th of August, 1942. During his life- time, the testator carried on the business of shipping agents. Clause 13 of the will companytains directions about carrying on this business of the testator till its disposal. It directs the executors to carry on the business as a going companycern after his death with power to make fresh companytracts and discharge the existing and future liabilities and all other usual-and necessary powers, unless special circum- stances arose which, in the opinion of the executors, made it expedient to sell the business earlier. This business was to be carried on for a period number exceeding twelve months during which time the executors were to ascertain whether or number any of his nephews was willing to purchase the said undertaking. For this purpose and generally for sale pur- poses, he directed that the executors shall, as soon as possible, after his death, have a valuation made of the said undertak- ing. The undertaking was to be sold so as to include all his interest in the premises, the goodwill, the stock-in- trade, plant, furniture etc. but excluding securities for money and cash in the bank to the credit of the account of that undertaking. If the executors were satisfied before the expiration of one year from the testators death that the said undertaking would number be sold to his nephews be- cause numbere was willing or able to purchase it or if it remained unsold, at the end of a year, to any of the nephews then whichever event first happened the executors were directed to sell the undertaking to such third person on such terms and at such price as they thought proper. The clause ended with the following words-.-I expressly de- clare that in carrying on the said undertaking my trustees shall, in addition to all powers, discretion and authorities vested in them by law, have power to carry on or discontinue any part of the said undertaking or to augment or diminish the capital employed and generally to act as absolute owners without being responsible for any loss. The business was, so1d to one of the nephews on the 1st of January, 1943. The appellants companytended that within the meaning of section 25 4 of the Indian Income-tax Act the succession to the business took place on the 1st of January, 1943, while the taxing authorities companytended that the succession was on the 9th of April, 1942, when the testator died. The first question submitted for the High Courts opinion related to this dispute. The second question referred to the High Court for its opinion was in respect of an amount paid by the executors to the widow of the testator. That question was answered against the appellants by the High Court. Learned companynsel appearing for the appellants intiated that he did number want to companytest the High Courts decision on the point. The appeal therefore is limited to the first question only. Section 25 of the Indian Income-tax Act, 1939, gives certain companycessions in respect of a business where tax had been paid by the person carrying the business under the provisions of the Indian Income tax Act, 1918. The material part of sub-clause 4 of section 25 is in these terms -- Where the person who was at the companymencement of the Indian Income-tax Amendment Act, 1939 VII of 1939 , carrying on any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Incometax Act, 1918, is succeeded in such capacity by another person The scheme of section 25 read with the provisions of section 26 2 appears to be to give relief, inter alia, to persons who were carrying on business in 1921 and had been taxed on their income under the Income-tax Act of 1918. By a change effected by the Incometax Amendment Act of 1922 they were subjected to taxation twice on the income of 1921-22. The relief is intended against this levy of tax twice over. The rival companytentions urged on behalf of the parties are these. The assessee companytends that on the death of the testator under clause 13 of the will of the deceased, the executors were carrying on the business of the deceased only for the purpose of winding it up, and there was numbersucces- sion to the business on the death of the deceased within the meaning of section 25 4 of the Income-tax Act. It is argued that the clause provides for numberhing else than a direction to carry on the business with a view either a to sell it within a year to one of the nephews, or b to sell it to someone else at the end of the year as a going company- cern. it was pointed out that all directions in the clause permitting companytracts to be made etc. were for the purpose of keeping the business alive and number allowing it to die so that the business which was a valuable asset of the deceased companyld be sold as a going companycern with its goodwill. It was therefore argued that the succession to the business took place only on the 1st of January, 1943, when the business was sold by the executors to one of the nephews in terms of clause 13 of the will. In actual money, the companytest is whether the executors are entitled to get the benefit of the exemption from in- companye-tax in respect of the profits earned only for the nine days between the 1st of April and the 9th of April, 1942, or between the 1st of April, 1942, and 1st of January, 1943, under section 25 4 of the Indian Income-tax Act. The High Court has answered the question against the assessee. In our opinion, the companyclusion of the High Court is companyrect. It cannot be disputed that in the event of a sale or gift of the business by the original owner the succession within the meaning of section 25 4 will take place only on the date of such sale or gift and the exemption from liabil- ity to tax will be for a period terminating on. that day. It cannot again be seriously disputed that if the testator settled his business on trust under a deed of settlement there will be a succession to the business by another person on the day of the settlement. Similarly in the event of his death intestate his heir-at-law will succeed to the business on the date of his death. The argument advanced on behalf of the appellants that in the present case having regard to the terms of clause 13 of the will there has been numbersuc- cession in such capacity to another person because the executors were carrying on the business only with a view to sell it as a going companycern, cannot be accepted because on the day of the death of the deceased the estate including the business got vested in the executors and the executors carried on the business within the meaning of section 3 read with section 10 of the Act and as such became personally liable as assessee. Thus there came about a change in the assessee and therefore a succession in such capacity took place within the meaning of section 25 4 of the Income-tax Act. It seems clear that if the testator had transferred the business to a trustee, although the trustees will number be the beneficial owners, in law there will be a succession of the business to another person within the meaning of. sec- tion 25 4 of the Indian Income.tax Act. If in such a case that result follows there appears numberreason why when the legal estate is transferred by operation of law to an execu- tor there should number be companysidered a succession to the estate by another person within the meaning of the same section 25 4 . The words in such capacity in that clause further make the position clear. It makes the distinction of legal and beneficial ownership irrelevant. The companytention that the business was to be carried on by the executors as such, as a going companycern or that it was being carried on for the bene- fit or loss of the testators estate is number relevant for the present discussion. The only relevant question under sec- tion 25 4 of the Indian Income-tax Act is whether in respect of the business there is a succession to another person. This is a provision to give relief and the scope of the relief must be governed by the words used in the Act. In our opinion the answer to this question, on the facts of the present case, must be in the affirmative and the. date of such succession must be companysidered to be the death of the testator, which was on the 9th of April, 1942. The result is that the appeal fails and is dismissed with companyts. PATANJALI SASTRI J.--I agree that this appealshould be rejected. The material facts have been set out in the judgment which has just been delivered. The only question number re- maining for decision ison what date was the testator, who was carrying on the business of shipping agent and land companytractor succeeded in such capacity by another person within the meaning of section 25 4 of the Act--on the 9th April, 1942, when the testator died and the appellants as the executors took over the business and carried it on or on the 1st January, 1943, when the business was sold by them as a going companycern ? The business being admittedly one which was charged to tax under the Income-tax Act, 1918, if there was numbersuccession within the meaning of section 25 4 until the sale took place, as the appellants companytend, the profits and gains of the period from 1st April, 1942, to 1st January, 1943, would number be liable to tax, whereas. if the testator companyld be said to have been succeeded by the appellants, the profits of the much shorter period between 1st April, 1942, and 8th April, 1942, alone would be exempt from taxation. The reason for this relief is to be found in the change of the basis of taxation when the Act of 1922 was passed which resulted in the profits of the year 1921-22 being assessed twice over, once in that year as the income thereof on adjustment under the Act of 1918 and once in the next year as the income of the previous year under the Act of 1922 see Commissioner of Income-tax, Bombay P.E. Poison 1 . The relief was, however, companyfined to discontinued businesses, as, in cases of succession till 1938 the successor alone was assessed to tax on the whole of the profits of the previous year including those earned by his predecessor before the succession occurred. But the Indian Income-tax Amendment Act, 1939, hereinafter referred to as the amending Act , having amended section 26 2 so as to provide, in the case of a succession in busi- ness, prolession or vocation, for the assessment of the predecessor and the successor, each in respect of his actual share of the profits of the previous year, the relief was extended, by enacting section 25 4 , to cases of succes- sion occurring after the companymencement of that Act, with the same object as in the case of discontinuance, namely, to redress the hardship of the business having been Charged twice over on the income of 1921-22. In other words, the predecessor is given the same relief as if he had discontin- ued the business on the date of succession. It will thus be seen that the enactment of section 25 4 is companysequential on the amendment of section 26 2 , and the scope and meaning of the expression succeeded in such capacity by another person in section 26 2 must determine also its scope and meaning in section 25 4 . The first question which arises on the language of the amended section 26 2 , which speaks of the person succeed- ed being assessed and of his number being found, is wheth- er the sub-section should be companystrued as applicable only to cases of succession inter vivos. Whatever force there may have been in the suggestion that the sub-section companyld number have companytemplated cases of testamentary or intestate succession if there was numberprovision for the assessment of profits earned by a deceased person in the hands his representatives, there seems to be numbersufficient reason for excluding from the scope of the sub-section cases of succession on death in view of the provision in section 24B. On the other hand, proviso c to section 24 9 , which refers to a person succeeded in such capacity by another person otherwise than by inheritance , would seem to imply that succession, as that term is used in the Act, includes devolution on death. The next question is what is the meaning to be at- tributed to the phrase in such capacity? A Full Bench of the Madras High Court in Jupudi Kesava Rao v. Commissioner of Income tax. Madras 1 , held that the expression meant in the capacity as owner , so that the person who succeeds another must, by such succession, become the owner of the business which his predecessor was carrying on and which he, after the succession, carries on in such capacity, that is. the capacity as owner . Applying that test they held that the sole surviving member of a Hindu undivided family did number succeed to the business of the family within the meaning of section 26 2 , as he was previously a part-owner of the business and there was numbertransfer of ownership. While it is undoubtedly true that a transfer of ownership is ordi- narily involved in cases of succession failing within sec- tion 26 2 or section 25 4 , it cannot, in my opinion, be regarded as an essential element of succession within the meaning of those provisions. The Income-tax Act directs its attention primarily to the person who receives the income, profits or gains rather than to the ownership or enjoyment thereof. The assessee is defined in section 2 2 as the person by whom the income-tax is payable and by section 10 the tax is payable by an assessee who carries on the busi- ness, profession or I.L.R 59 Mad 377 vocation. The statute thus fastens on the person who carries on the business, etc., the liability to pay the tax on the profits earned by him regardless of their destination or enjoyment. It is also worthy of numbere that in serviral in- stances person who have numberproprietory or other right in the income charged to tax are made liable to pay the tax for numberother reason than the companyvenience of assessment and companylection. Such instances are to be found in section 26 2 proviso, section 18 7 , section 23-A 3 , section 25-A and section 42 1 . As observed by Lord Cave in Williams v. Singer Others 1 the fact is that, if the Income-tax Acts are examined, it will be found that the person charged with tax is neither the trustee number the beneficiary as such, but the person in actual receipt and companytrol of the income, which it is sought to reach. There seems to be numberwarrant, therefore, to insist on a transfer of ownership as the decisive test of succession within the meaning of section 26 2 or section 25 4 any more than for insisting on the ownership of the business by the person carrying on a business, for the purposes of section 10. I do number of companyrse wish to be understood to say that a clerk or an agent in management of a business would be an assessee liable to be taxed in respect of its profits and -gains. Some kind of title there must be, though number of a beneficial character. Nor need it be of the same quality in the predecessor and the successor. The question in each case must be Is the person who has companye in carrying on the business as a principal ? If so, the Revenue looks to him and makes him liable for payment of the tax. The words in such capacity in sections 25 4 and 26 2 mean numberhing more than the capacity of a person who carries on the busi- ness as the predecessor was carrying it on that is, with a liability to be taxed on its profits and gains. Applying these principles to the present case, I am clearly of opinion that the testator who was carrying on the business in question was succeeded in such 1 1921 1 A.C. 65 capacity by the appellants when the former died on 9th April, 1942, and his estate vested in them. As already stated, the testator expressly authorised the appellants to carry on the business as a going companycern for one year after his death and gave them power to enter into fresh companytracts and to discharge liabilities past and future. They are thus an association of persons carrying on business, and, being assessable as such in respect of the profits and gains of the business carriedon by them under section 10 read with section 3 of the Act, they are liable to be taxed on the profits earned after the 9th April, 1942. It was objected that the appellants being assessable as the representatives of the testator under section 24-B in respect of the profits earned by him in the accounting year, they companyld number be treated as successors assessable under section 26 2 in respect of the profits earned during the rest of that year, as such apportionment would be meaningless, the same interest, namely, the testators estate, having to bear the incidence of the tax in either case. It was accordingly suggested that unless there was a break in the companytinuity of the interest represented by the executors, there companyld be numberreal apportionment such as is companytemplated by section 26 2 and, therefore, numbersucces- sion within the meaning of that section or of section 25 4 where the same expression is used.

Case appeal was rejected by the Supreme Court

APPELLATE JURIDICTION Civil Appeal No. XXXVIII of 1949. Appeal from a Judgment of the High Court of Judicature at Madras Gentle C.J. and Patanjali Sastri J. dated August 22, 1947, in a reference under section 66 1 of the Indian Income-tax Act made by the Income-tax Appellate Tribunal Re . No. 25 of 1946 . Rajah Aiyar K. Srinivasan, with him for the appel- lant. C. Setalvad G. NJoshi, with him for the respond- ent. 1950. December 21. The Judgment of the Court was delivered by FAzL ALI J.--This is an appeal from a judgment of the High Court of Judicature at Madras on a reference made to it under section 66 1 of the Indian Incometax Act by the Income-tax Appellate Tribunal in companynection with the assess- ment of the appellant to income-tax for the year 1942-43. The question of law referred to the High Court was as fol- lows -- Whether in the circumstances of the case, the assessee a Hindu undivided family is resident in British India under section 4A b of the Income-tax Act. The circumstances of the case may be briefly stated as follows. The appellant is the karta of a joint Hindu family and has been living in Ceylon with his wife, son and three daughters, and they are stated to be domiciled in that companyntry. He carries on business in Colombo under the name and style of the General Trading Corporation, and he owns a house, some immoveable property and investments in British India. He has also shares in two firms situated at Vijayapuram and Nagapatnam in British India. In the year of account, 1941- 42, which is the basis of the present assessment, the appel- lant is said to have visited British India on seven occa- sions and the total period of his stay in British India was 101 days. What he did during this period is summarized in the judgment of one of the learned Judges of the High Court in these words -- During such stays, he personally attended to a litiga- tion relating to the family lands both in the trial Court and in the Court of appeal. He was also attending the in- companye-tax proceedings relating to the assessment of the family income, appearing before the income-tax authorities at Karaikudi and Madras. On one of these occasions, he obtained an extension of time for payment of the tax after interviewing the authority companycerned The other facts relied upon by the income-tax authori- ties were that he did number produce the file of companyrespondence with the business in Colombo so as to help them in determin- ing whether the management and companytrol of.the business was situated in Colombo and he had started two partnership businesses in India on 25th February, 1942, and remained in India for some time after the companymencement of those busi- nesses. Upon the facts so stated, the Income-tax Officer and the Assistant Commissioner of Income-tax held that the appellant was a resident within the meaning of section 4A b of the Income-tax Act, and was therefore liable to be assessed in respect of his foreign income. The Income-tax Appellate Tribunal however came to a different companyclusion and held that in the circumstances of the case it companyld number be held that any act of management or companytrol was exercised by the appellant during his stay in British India and therefore he was number liable to assessment in respect of his income out- side British India. This view was number accepted by a Bench of the Madras High Court companysisting of the learned Chief Jus- tice and Patanjali Sastri J. They held that the Tribunal had misdirected itself in determining the question of the residence of the appellants family and that on the facts proved the companytrol and management of the affairs of the family cannot be held to have been wholly situated outside British India, with the result that the family must be deemed to be resident ,fin British India within the meaning of section 4A b of the Income-tax Act. In this appeal, the appellant has questioned the companyrectness of the High Courts decision - Section 4A b runs thus-- For the purposes of this Act---- A Hindu undivided family, firm or other association of per- sons is resident in British India unless the companytrol and management of its affairs is situated wholly without British India. It will be numbericed that section 4A deals with residence in the taxable territories, of a individuals, b a Hindu undivided family, firm or other association of persons, and c a companypany. In each of these cases, certain tests have been laid down, and the test with which we are companycerned is that laid down in section 4A b . This provi- sion appears to be based very largely on the rule which has been applied in England to cases of companyporations, in regard to which the law was stated thus by Lord Loreburn in De Beers Howe 1 . A companypany cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business The decision of Chief Baron Kelly and Baron Huddleston in The Calcutta Jute Mills v. Nicholson and The Cessna Sulphur Company v. Nichol- son 2 , number thirty years ago, involved the principle that a companypany resides for purposes of income-tax where its real business is carried on. Those decisions have been acted upon ever since. I regard that as the true rule, and the real business is carried on where the central management and companytrol actually abides. It is clear that what is said in section 4A b of the Income-tax Act is what Lord Loreburn intended to 1 5 Tax Cas. 198. 2 1876 1 Ex. D. 428, companyvey by the words where the central management and company- trol actually abides. The principles which are number well-established in Eng- land and which will be found to have been very clearly enunciated in Swedish Central Railway Company Limited v. Thompson 1 , which is one of the leading cases on the subject, are -- 1 that the companyception of residence in the case of a fictitious person , such as a companypany, is as artificial as the companypany itself, and the locality of the residence can only be determined by analogy, by asking where is the head and seat and directing power of the affairs of the companypany. What these words mean have been explained by Patanjali Sastri J. with very great clarity in the following passage where he deals with the meaning of section 4A b of the Income-tax Act -- Control and management signifies, in the present companytext, the companytrolling and directive power, the head and brain as it is sometimes called, and situated implies the functioning of such power at a particular place with some degree of permanence, while wholly would seem to recognize the possibility of the seat of such power being divided between two distinct and separated places. As a general rule, the companytrol and management of a business remains in the hand of a person or a group of persons, and the question to be asked is wherefrom the person or group of persons companytrols or directs the business. Mere activity by the companypany in a place does number create residence, with the result that a companypany may be residing in one place and doing a great deal busi- ness in another. The central management and companytrol of a companypany may be divided, and it may keep house and do business m more than one place, and, if so, it may have more than one resi- dence. In case of dual residence, it is necessary to show that the companypany performs some of the vital organic 1 9 Tax Cas 373 functions incidental to its existence as such in both the places, so that in fact there are two centres of man- agement- It appears to us that these principles have to be kept in view in properly companystruing section 4A b of the Act. The words used in this provision clearly show firstly, that, numbermally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will number apply if the case can be brought under the second part c,f the provision. Secondly, we take it that the word affairs must mean affairs which are relevant for the purpose of the Income-tax Act and which have some-relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and companytrol of the affairs of the family is inside or out- side British India. Lastly, the word wholly suggests that a Hindu undivided family may have more than One resi- dence in the same way as a companyporation may have. The question which number arises is what is the result of the application of these principles to this case, and whether it can be held that the central companytrol and management of the affairs of the assessees family has been shown to be divid- ed in this case. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot companystitute that place the seat of companytrol and management of the affairs of the family. Nor are we inclined in the cir- cumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interest- ed in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely companying out to India to take part in them, he cannot be said to have shifted the seat of management and companytrol of the affairs of his family, or to have started a second centre for such companytrol and management. The same remark must apply to the starting of two partnership businesses, as mere activity cannot be the test of residence. It seems to us that the learned Judges of the High Court have taken rather a narrow view of the meaning of section 4A b , because they seem to have proceeded on the assumption that merely because the assessee, attended to some of the affairs of his family during his visit t.o British India in the particular year, he brought to himself within the ambit of the rule. On the other hand. it seems to us that the more companyrect approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following pas- sage which occurs in his order dated the 24th February, 1944 -- During a major portion of the accounting period year ending 12th April, 1942 the appellant was companytrolling the businesses in Burma and Saigon and there is numberevidence that such companytrol was exercised only from Colombo. No companyre- spondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising companytrol by issuing instruc- tions It has been admitted that there are affairs of the family in British India. Has it been defi- nitely established in this case that the companytrol and manage- ment of such affairs has been only in Colombo ? I have to hold it has number been established for the reasons already stated by me. There can be numberdoubt that the onus of proving facts which would bring his case within the exception, which is provided by the latter part of section 4A b , was on the assessee. The appellant was called upon to adduce evidence to show that the companytrol and management of the affairs of the family was situated wholly outside the taxable territo- ries, but the companyrespondence to which the Assistant Commis- sioner of Income-tax refers and other material evidence which might have shown that numbermally and as a matter of companyrse the affairs in India were also being companytrolled from Colombo were number produced. The position therefore is this. On the one hand, we have the fact that the head and karta of the asses- sees family who companytrols and manages its affairs permanent- ly lives in Colombo and the family is domiciled in Ceylon.

Case appeal was rejected by the Supreme Court

Mukherjea, J. This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated November 27, 1945, reversing the decision of the Subordinate Judge of Mayuram made in Original Suit No. 34 of 1943. There is numberdispute about the material facts of the case which lie within a short companypass and the companytroversy centers round one point only which turns upon the companystruction of a wall left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged. Kothandarama, who was a Hindu inhabitant of the District of Tanjore and owned companysiderable properties, died on 25th April 1905, leaving behind him as his near relations his adoptive mother Valu Ammal, his widow Parbati and two daughters Nagammal and Gnanambal, of whom Nagammal, who became a widow during the testators life time had an infant daughter named Alamelu. Kothandarama executed his last will on 13th March, 1905, and by this will, the genuineness of which is number disputed in the present litigation, he gave an authority to his widow to adopt unto him a son of his second daughter Gnanambal, should she beget one before January, 1908, or in the alternative any of the sons of his two nephews, if the widow so chose. The suit, out of which the appeal arises, was companymenced by Raju Ayyar, who was a son of the testators nephews and was taken in adoption by the widow in terms of the will and it was for recovery of possession of certain properties, known as Kothangudi properties which formed part of the testators estate on the allegation that under the will mentioned above, these properties were given to Nagammal, the widowed daughter of the testator for her life-time, but as there was numberdisposition of the remaining interest after the death of the life tenant, the properties vested in the plaintiff as the adopted son and heir of the deceased on the death of Nagammal which took place on 3rd of January, 1943. Gnanambal, the second daughter of the testator, was the first and main defendant in the suit, and she resisted the plaintiffs claim primarily on the ground that there was numberintestacy as regards the suit properties after the termination of the life interest of Nagammal, and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal, subject to payment of a sum of Rs. 5,000 to Alamelu, the daughter of Nagammal. Alamelu was made the second defendant in the suit and as she died when the suit was pending in the trial companyrt, her heirs were impleaded as defendants 3 to 9. The first companyrt accepted the companytention of the defendant No. 1 and dismissed the plaintiffs suit. On appeal to the High Court, the judgment was reversed and the plaintiffs claim was allowed. The defendant No. 1 has number companye up appeal to this companyrt. To appreciate the companytentions that have been raised by the parties to this appeal, it would be companyvenient first of all to refer briefly to the relevant provision of the will After cancelling his previous wills, the testator in the third paragraph of his will, gave his widow authority to adopt a son. She was to adopt the son of Gnanambal, if the latter got a son previous to January 1908, or she companyld adopt any of the sons of the testators nephews. Paragraph 4 provides that if the first companyrse is followed, that is, if the son of Gnanambal is adopted by the widow, then all the properties, movable and immovable, belonging to the testator excepting the village of Kothangudi, the house of Injigudi and the other properties which were disposed of by the will would go to such adopted son. Paragraph 5, which is material for our present purposes runs as follows - The whole village of Kothangudi and the house at Injigudi, both of Nannilam Taluk, my daughter Nagammal, shall enjoy with life interest and after her the said property shall pass to my daughter Gnanambal and her children on payment by the latter of Rs. 5,000 to Alamelu, Nagammals daughter. By the sixth paragraph the Nallathukudi and Pungavur villages together with certain house property at Mayavaram are given to the testators adoptive mother and wife in equal shares to be enjoyed by both of them during their life-time and after their death they are to pass on to the adopted son. Paragraph 7 gives a small house absolutely to Nagammal for her residence and paragraph 8 makes certain provisions for management of the properties. In paragraph 9 direction is given to companylect the money due on the insurance policy on the life of the testator and to pay off his debts. Paragraph 10 mentions certain charities, the expenses of which are to be defrayed from the income of the Nallathukudi properties. Paragraph 11 then says that in the event of the widow adopting any of the nephews sons of the testator, such son shall inherit the entire property at Kokkur and also the lands of Nalathukudi after the death of the testators wife and mother. By paragraph 12, the village of Maruthanthanallur is given to Gnanambal and paragraph 13 provides that the village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5. By paragraphs 15 and 16 the remainder in the house at Mayavaram situated in the east row of Vellalarkovil Street is given to Gnanambal after the death of the testators wife and mother. Paragraph 18 provides for certain other charities. In paragraph 20 it is stated that if the wife of the testator should die before January, 1908, without making any adoption, then the eldest or any son of Gnanambal would be his adopted son without any formality and inherit all the properties subject to the companyditions mentioned in the will. Paragraph 21, which is the penultimate paragraph in the will, further lays down that if all the three companytingencies fail and numberadoption is taken, the male child or children born to Gnanambal shall inherit as grandsons all the properties of the testator, subject to the companyditions specified in the will. These, in brief, are the dispositions made in the will. The plaintiff founds him claim upon paragraph 13 of the will which, according to him, companytains the entire disposition so far as the Kothangudi property is companycerned. That village is given to Nagammal for her life with numberdisposition of the remaining interest. If the remainder has number been disposed of, there is numberdoubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inheritance. The defendant No. 1, on the other hand, relies on paragraph 5 of the will, which gives the Kothangudi village and the Injigudi house to Nagammal to be enjoyed by her so long as she lives and after her death they are to go to Gnanambal and her children, subject to the payment of a sum of Rs. 5,000 to be paid to Alamelu, the daughter of Nagammal. The High Court on a companystruction of the will has found in favour of the plaintiff primarily on the ground that in the companytingency which happened in the present case, viz., that the widow took in adoption a nephew son of the testator, paragraph 5 of the will did number companye into operation at all. The disposition as regards Kothangudi property is, therefore, to be found exclusively in paragraph 13 of the will and the actual words employed by the testator in that paragraph do number indicate that apart from Nagammals taking a life estate in the Kothangudi village the rest of the provisions in regard to this property as laid down in paragraph 5 would also be incorporated into paragraph 13. An obvious difficulty, according to the learned Judges, in accepting the companystruction sought to be put upon the will by defendant No. 1 is that paragraph 5 speaks both of Kothangudi and Injigudi properties, whereas paragraph 13 does number mention the Injigudi house at all, number does it purport to give a life interest in the same to Nagammal. It companyld number be reasonably held on a companystruction of the will that the intention of the testator was that Gnanambal was to pay Rs. 5,000 to Alamelu for the Kothangudi property alone. The result was that the plaintiffs claim was allowed. It is the propriety of this decision that has been challenged before us in this appeal. In companyrse of the arguments, we have been referred by the learned Counsel on both sides to quite a large number of decided authorities, both English and Indian, in support of their respective companytentions. It is seldom profitable to companypare the words of one will with those of another or to attempt to find out to which of the wills upon which decisions have been given in reported cases, the will before us approximates closely. Cases are helpful only in so far as they purport to lay down certain general principles of companystruction and at the present day these general principles seem to be fairly well settled. The cardinal maxim to be observed by companyrts in companystructing a will is to endeavour to ascertain the intentions of the testator. This intentions has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any companyjecture or speculation as to what the testator would have done if he had been better informed or better advised. In companystructing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarthy 42 I.A. 51 at p. 70, the companyrts are entitled and bound to bear in mind other matters than merely the words used. They must companysider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure The companyrt is entitled to put itself into the testators armchair But all this is solely as an aid to arriving at a right companystruction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the companystruction is settled, the duty of the companyrt is to carry out the intentions as expressed, and numbere other. The companyrt is in numbercase justified in adding to testamentary dispositions In all cases it must loyally carry out the will as properly companystrued, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life. A question is sometimes raised as to whether in companystruing a will the companyrt should lean against intestacy. The desire to avoid intestacy was companysidered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should number necessarily bind an Indian companyrt. It seems that a presumption against intestacy may be raised if it is justified by the companytext of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards Jones v. Jones 1906 1 Ch. 570 at p. 574, it cannot be that merely with a view to avoiding intestacy you are to do otherwise than companystrue plain words according to their plain meaning. It is in the light of the above principles that we should proceed to examine the companytents of the will before us. The present will, which is the last of four testamentary document executed by the testator, appears to have been prepared with a great deal of care and circumspection. The testator had clearly in mind the different situations that might arise in case his widow adopted either Gnanambals son or a son of one of the nephews of the testator. He envisaged also the possibility of the widow dying without making any adoption at all. Besides the son to be adopted, the only other relations who had natural claims upon the affection and bounty of the testator and for whom he desired to make provisions were his wife, his adoptive mother, the two daughters and the infant grand-daughter. The interests given to his wife, the adoptive mother and the eldest daughter, who were all widows, were for their life-time, except a small house property which was given absolutely for the residence of the eldest daughter. On the other hand, the bequests in favour of Gnanambal, who was a married daughter, and the adopted son of the testator, were absolute in their character. Besides these dispositions, there were certain gifts for charity which were to be met out of the income of the properties given to the wife and the adoptive mother for their lives. One singular feature in the will is that the testator took scrupulous care to include in it every item of property that he owned. There are two provisions in the will relating to Kothangudi property to which the dispute in the present suit relates. One is in paragraph 5 which gives this property along with the house at Injigudi to Nagammal. The remainder being given to the appellant subject to the payment of a sum of Rs. 5,000 to Alamelu, the daughter of Nagammal. The other is in paragraph 13 which merely says that Nagammal was to get it for life as stated in paragraph 5. The view taken by the High Court and which had been pressed for our acceptance here by the learned Counsel for the respondents is that paragraph 5 was meant to be operative only if Gnanambals son was adopted by the widow. As that was number done, paragraphs 4 to 8 of the will, it is urged, will go out of the picture altogether and it is number permissible to refer to them except to the extent that they were impliedly incorporated in the subsequent paragraphs of the will. We do number think that this is the companyrect way of reading the document. The testator undoubtedly companytemplated different companytingencies but a reading of the whole will does number show that he wanted to make separate and self-contained provisions with regard to each of the companytingencies that might arise and that each set of provisions were to be read as exclusive of the other set or sets. That does number appear to be the scheme of the will. The testators main desire undoubtedly was that his widow should adopt the son of his daughter Gnanambal, and in the first part of his will after making provisions for his two daughters, his wife and adoptive mother and also for certain charities, he left the rest of his properties to the son of Gnanambal that was to be adopted by his widow. In the second part of the will, which is companyprised in paragraphs 11 to 16, the testator sets out the modifications which he desires to make in the earlier dispositions in case a son of one of his nephews was adopted by the widow. It was number the intention of the testator that on the happening of the second companytingency, all the earlier provisions of the will would stand cancelled and the entire dispositions of the testators property would have to be found within the four companyners of paragraphs 11 to 16 of the will. In our opinion, the provisions made for the two daughters, the widow and the adoptive mother as made in paragraphs 5, 6 and 7 of the will and also the provisions for charities and payment of debts companytained in paragraphs 9 and 10 were meant to be applicable under all the three companytingencies referred to above. This is clear from the fact that provisions of paragraphs 7, 9 and 10 have number been repeated or incorporated in paragraphs 11 to 16, although it cannot be suggested that they were number to take effect on the happening of the second companytingency. Again in the third companytingency companytemplated by the testator, which is described in paragraph 20, it is expressly stated that if numberadoption is made, the eldest or any son of Gnanambal would inherit the properties and he shall take the properties subject to the companyditions mentioned in the will. The companyditions spoken of here undoubtedly refer to the provisions made for the mother, wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in paragraph 10. The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under paragraph 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under paragraph 11, if the adoption of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathukudi village after the death of the testators wife and the mother. The village Maruthanthanallur which would go to the adopted son under paragraph 4 is taken away under paragraph 11 and is given to Gnanambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son under paragraph 6. Subject to the changes thus made the provisions of paragraphs 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No changes is made in paragraphs 11 to 16 with regard to the provision in paragraph 5 of the will. In paragraph 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5. It may be companyceded that this statement by itself does number let in the entire provision of paragraph 5, but that is number material for our present purpose. It is enough that paragraph 5 has number been changed or altered in any way. The statement in paragraph 13 may, after all, be a loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnanambals son was number adopted. This is number by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in paragraph 5, particularly the benefit that was meant to be given to Alamelu, was number repeated in paragraph 13. It may be that the testator did number companysider it necessary or it may be that it was due to inadvertance. It is to be numbered here that the testator did number mention anywhere in paragraphs 11 to 16 the small house that was given absolutely to Nagammal under paragraph 7. It was certainly number the intention of the testator that Nagammal would number have that house on the happening of the second companytingency. If paragraph 5 itself is held to be applicable-and in our opinion it should be so held-there is numberquestion of adding to or altering any of the words made use of by the testator. It is number a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paragraphs 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were number companytingent gifts in the sense of being made dependent upon the adoption of Gnanambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of paragraph 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnanambal in case the person adopted was number her own son. If the whole of paragraph 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000 to Alamelu as has been stated by the High Court in its judgment. Having regard to the meticulous care with which the testator seems to have attempted to provide for the different companytingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties he owned, it is number probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5,000 to Alamelu also cannot be explained on any other hypothesis. It is number necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the companyclusion which we have arrived at. The result is that the appeal is allowed, the judgment and decree of the of the High Court are set aside and those of the Subordinate Judge restored.

Case appeal was accepted by the Supreme Court

APPELLATE JURISDITION Criminal Criminal Miscellaneous Petitions Nos. 71 to 73 of 1950. Petitions under Art. 136 of the Constitution praying for special leave to appeal to the Supreme Court from the orders of the High Court of Judicature at Hydrabad dated 12th, 13th and 14th Dccember, 1949, dismissing the appeals prcferred by the petitioners against orders of the Special Tribunal of Hyderabad companyvicting them of murder and sentencing them to death. The material facts and arguments of the companynsel appear from the judgmcnt. N. Pritt K. B. Asthana, Daniel Latifi, Bhawa Shiv Charan Singh and A.S. R. Chari, with him for the petition- ers. C. Setalvad, Attorney-General for India, and Raja Ram Iyer G. N. Joshi, with them for the respondent. 1950. December 14. The Judgment of the Court was deliv- ered by KANIA C.J.---These are three criminal miscellaneous Kan petitions asking for special leave to appeal to the Supreme Court under article 136 of the Constitution of India. All the accused were charged with being members of the Communist Party wedded to the policy of overthrowing the existing Government at Hyderabad by violence and establish- ing in its place a companymunist regime. It is alleged that they demanded subscriptions towards their companymunist organi- zation and some of the villagers who did number meet their demands were abducted on the 21st of September, 1948, and murdered. They were charged with various offences including murder before a special tribunal established under the regulations promulgated by the Military Governor under the authority of H.E. H. the Nizam and companyvicted and sentenced to death on the 9th, 13th and 14th of August, 1949, by separate judgments. The petitioners appealed from those judgments to the Hyderabad High Court and the High Court,by its judgments dated the 12th, 13th and 14th Decem- ber, 1949, respectively, dismissed the appeals. The peti- tioners applied to the High Court for a certificate to appeal to the Judicial Committee of the Hyderabad State on the 21st of January, 1950. It appears that H.E.H. the Nizam issued a firman on the 23rd of November, 1949, stating that the proposed Constitution of India was suitable for the government of Hyderabad and he accepted it as the Constitu- tion of the Hyderabad State as one of the States of Part B in the First Schedule. On the 26th of January, 1950, the Constitution of India became applicable to the Union of India and the Part B States. the petitions originally filed for a certificate for leave to appeal to the Judicial Com- mittee of the Privy Council of the Hyderabad State were, by leave of the Court, amended, and made into petitions under article 134 of the Constitution of India. A Division Bench of the High Court at Hyderabad companysidered the petitions and dismissed them on the ground that numbersuch petitions lay under article 134 and they also declared that on the merits numbercase was made out for a certificate as asked by the peti- tioners. The petitioners have number filed their petitions to this Court under article 136 of the Constitution of India, for special leave to appeal from the judgments of the High Court dated the 12th, 13th and 14th of December, 1949. Two questions arise for companysideration. The first is, wheth- er any application under article 136, under the circum- stances of the case, can be made to the Supreme Court, and, the second is, whether on a companysideration of the facts, if it has jurisdiction to entertain the petitions, the Court should grant special leave. The first question depends on the companystruction of the relevant articles in the Constitu- tion of India. Under article 374 4 on and from the company- mencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State speci- fied in Part B to the First Schedule to entertain and dis- pose of appeals and petitions from or in respect of any judgment, decree or order of any companyrt within that State ceased, and all appeals and other proceedings pending before the said authority at such companymencement stand transferred to and have to be disposed of by the Supreme Court. This sub- clause thus abolishes the jurisdiction of the Privy Council of the Hyderabad State and after the Constitution of India came into force that body and its jurisdiction altogether ceased. On the facts before us, it is clear that as numberproceeding or appeal in respect of these judgments of the Hyderabad High Court was pending before the Hyderabad Privy Council before its abolition, numberhing got transferred to the Supreme Court by operation of this subclause. It was argued on behalf of the petitioners that on the 25th January, 1950, they had a right to move the High Court at Hyderabad for a certificate granting them leave to appeal to the Privy Council of the Hyderabad State. In fact such petitions were pending on that day. It was therefore argued that a right to appeal which existed on the 25th of January, 1950, cannot be impliedly taken away by the Constitution of India being made applicable to the State of Hyderabad. It was pointed out that in respect of companyvictions all persons who had rights of appeal, or who had time to file their applications for a certificate, as also persons whose petitions were pending before the Hyderabad High Court asking for such certificates and which had number been disposed of because of the companygestion of work in the High Court would lose their right to appeal to the higher companyrt if article 136 is number companystrued so as to give a right of appeal to the Supreme Court of India. It was pointed out by the Attorney General, appearing on behalf of the State, that if a wide companystruction is given to article 136 it will number only permit persons who are stated to be under such hardship to apply for leave under article 136 but several other rights will be created. Such rights will arise number only in criminal cases but in civil cases also and they can be exercised without any limitation as to the period within which the application has to be made, with the result that old judgments may also be called into question. Moreover, on the wider companystruction of article 136, judg- ments which had become final in those States in which there existed numbercourt like the Privy Council to whom appeals companyld lie from the judgments of their High Courts, x,viIi be subject to appeal though numbersuch appeal lay before. It was therefore argued that on the ground of companyvenience the balance if at all. is against the argument advanced by the petitioners. It was strenuously urged that this is a wrong approach to the question altogether. Articles of the Con- stitution have to be companystrued according to their plain natural meaning and cases of hardship should number be brought to bear on the natural companystruction. Hard cases should number be permitted to make bad law. In our opinion, this argument of the Attorney-General is sound. The question of hardship cannot be and should number be allowed to affect the true meaning of the words used in the Constitution. It is there- fore proper to approach the articles irrespective of companysid- erations of hardship. In order to decide whether on the facts of this case, the Supreme Court has jurisdiction to grant special leave, it is necessary only to companysider articles 133, 134, 135 and 136 of the Constitution of India. Article 133, in sub- stance, retains the old provisions of the Civil Procedure Code in respect of appeals to the Privy Council from High Courts in civil matters. Under article 134, it is provided that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceed- ing of a High Court in the territory of India if the High Court then follow three companytingencies under which such appeals can lie , In article 133 also the words in the territory of India are used. Article 135 provides for matters to which the provisions of articles 33 or 134 do number apply. It is there provided that until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or 134 do number apply, if juris- diction and powers in relation to that matter were exercisa- ble by the Federal Court immediately before the companymencement of this Constitution under any existing law. This article was included in the Constitution to enable the Supreme Court to exercise jurisdiction in cases which were number companyered by articles 133 and 134, in respect of matters where the Feder- al Court had jurisdiction to entertain appeals etc. from the High Courts under the previously existing law. This is obviously a provision to vest in the Supreme Court the jurisdiction enjoyed by the Federal Court, under the Aboli- tion of Privy Council Jurisdiction Act, 1949. It may be mentioned that the jurisdiction of the Privy Council to entertain appeals from High Courts, except those which were already pending before it on the 10th October 1949, was taken away by this Act. Provision had therefore to be made in respect of appeals which were already pending or which were number companyered by the provisions of articles 133 and 134. Article 136 of the Constitution of India is in these terms -- 136. 1 Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. 2 The expression territory of India is defined in arti- cle 1 in these terms The territory of India shall companyprise a the territories of the States meaning the States mentioned in Parts A, B and C of the First Schedule , b the territories specified in Part D of the First Schedule, viz., The Andaman and Nicobar Islands and c such other territories as may be acquired. The question for companysideratioh is whether on the facts of the present case the Supreme Court can grant special leave to appeal from a judgment, sentence or order which was passed and made by the Hyderabad High Court before 26th January, 1950. The important fact to be borne in mind is that the Hyderabad companyrts were number companyrts within the. territory of India when they pronounced their judgments on the 12th, 13th and 14th of December, 1949. It is argued on behalf of the petitioners that a narrow companystruction will take away the valuable rights of appeal which had existed in persons in the position of petitioners when the Constitution of India was directed by H.E.H. the Nizam by his firman to be ap- plicable to the Hyderabad State on the 26th of January, 1950, it should be held that as numbersubstantive right was provided in the Constitution separately, the words of arti- cle 135 were wide enough to give such right to the petition- ers. On the other hand, it was then argued by the learned Attorney General that every legislation is primarily prospective and number retrospective. A right of appeal has to be given specifically by a statute and it is number merely a procedural right. If therefore there exists numberright of appeal under the Constitution such right cannot be inferen- tially held to companye into being on the application of the Constitution to the Hyderabad State. For this, reliance was placed on the decision of the Privy Council in Delhi Cloth and General Mills Ltd. v. Income Tax Commissioner, Delhi Another 1 and The Colonial Sugar Refining Co. Ltd. Irving 2 . 1 54 I.A. 421. 2, 1905 A. C. 369. In our opinion, the companytention of the Attorney general on this point is companyrect. There appears numberreason why in the present case the numbermal mode of interpreting a legislation as prospective only should be departed from. It was companytended.by Mr. Pritt that the interpretation sought to be put by the State on article 136 will require the insertion of the word hereafter in the clause, for which there was numberjustification. We are unable to accept this companytention because, prima facie, every legislation is prospective and even without the use of the word hereafter the language of article 136 companyveys the same meaning. It should be numbericed in this case that before the 26th January, 1950, the Government of H.E.H. the Nizam was an independent State in the sense that numbercourt in India or the Judicial Committee of the Privy Council in London had any jurisdiction over the decisions of the Hyderabad State Courts. To give the Supreme Court of India jurisdiction over the decisions of companyrts of such a state, one requires specific provisions or provisions which necessarily companyfer jurisdiction to deal, on appeal, with the decisions of such companyrts. It is companymon ground that there is numberexpress provision of that kind. There appear to us also numbersuch necessary circumstances which on reasonable companystruction should be treated as impliedly giving such right of appeal. Indeed the words territory of India lead to a companytrary companyclusion. Under the words used in article 136 the -courts which passed judgments or sentence must be companyrts within the territory of India. The territory of the Government of H.E.H. the Nizam was never the territory of India before the 26th of January, 1950, and therefore the judgment and sentence passed by the High Court of H.E.H. the Nizam on the 12th, lath and 14th December, 1949, cannot be companysidered as judgments and sentence passed by a companyrt within the territory of India. On that short ground alone it seems that the petitioners companytention must fail. It was argued by Mr. Pritt on behalf of the petitioners that if such companystruction were put, the territory of the Province of Bombay also may be excluded from the operation of article 136. The answer however is that a right to file an appeal from the judgments of the High Court at Bombay in both civil and criminal matters existed under the Civil Procedure Code, Criminal Procedure Code and the Letters Patent of The High Court before the 26th of January, 1950. Such right of appeal to the Judicial Committee of the Privy Council, which previously existed, was transferred to the Federal Court by the appropriate legislation and eventu- ally by article 135 to the Supreme Court. Therefore by the interpretation, which we think is the proper interpretation of article 136 of the Constitution of India, the right of appeal from the judgment of the Bombay High Court is number taken away. It is true that having regard to the words used in article 136 which can bear a wider meaning a right to apply for leave to appeal to the Supreme Court is given in respect of decisions number only of High Courts but of other tribunals also. That larger right, if it did number exist before the 26th January, 1950, can be legitimately companystrued as newly companyferred by article 136 and such companystruction does number give rise to any anomaly. In our opinion, therefore as the judgments were pronounced and sentences passed in all these matters before us by the High Court of Hyderabad, which was in the territory of H.E.H. the Nizam and which territory was number the territory of India before the 26th of January, 1950, and as those judgments were passed before the Constitution came into force they do number fall. within the class of judgments against which special leave to appeal to the Supreme Court can be asked for under article 136.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 272 of 1955. Petition under. Article 32 of the Constitution of India for the enforcement of Fundamental Rights. Purshottam Trikamdas, V. R. Upadhya, J. B. Dadachanji and S. Andley, for the petitioner. C. Setalvad, Attorney-General for India, B. Sen and R. H. Dhebar, for the respondents. 1956. May 8. The Judgment of S. R. Das C.J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha Jagannadhadas J. delivered a separate judgment. SINHA J.-This petition under article 32 of the Constitution challenges the vires of certain provisions of the Bombay Police Act, XXII of 1951, which hereinafter will be referred to as The Act with particular reference to section 57 under which the externment order dated the 8th November 1954 was passed against the petitioner by the first respondent, the Deputy Commissioner of Police, Crime Branch 1 , C.I.D., Greater Bombay. The second respondent is the State of Bombay. The petitioner, who claims to be a citizen of India, was born in Bombay and had been, before the order of externment in question, residing in one of the quarters of the City of Bombay. He keeps bullock carts for carrying on his business of transport and companys for selling milk. The petitioner alleges that the Prohibition Police of the City instituted twelve prohibition cases against him which all ended either in his discharge or acquittal. An externment order was passed against him in August 1950. That order was set aside by the Government in December 1950, on appeal by the petitioner. In December 1953 an order of detention was passed against him under the Preventive Detention Act, 1950, and he was detained in the Thana District prison. He moved the High Court of Bombay under article 226 of the Constitution against the said order of detention.- He was released from detention before the said petition was actually heard by the High Court. Thereafter, the petitioner along with others was charged with possession of liquor. The case went on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24th February 1955 as the prosecution witnesses were number present on the date fixed for hearing of the case. On the night of the 9th October 1954 the petitioner was arrested along with his companypanions a little after midnight by members of the police force designated Ghost Squad, which was a special wing of the Crime Branch of the C.I.D., on the allegation made by the police that they were seen running away on the sight of a police van and that they were chased and arrested and were found in possession of knives and other weapons. In October 1954 the petitioner was served with a numberice under section 57 read with section 59 of the Act. It is companyvenient at this stage to set out the said numberice in extenso, which is Exhibit A to the petition filed in this Court- Notice under section 59 of the Bombay Police Act, 1951. Name, address age Hari alias Dada Khemu Gawali, Hindu aged about 37 years. Occupation Bullock cart owner. Residence Room No. 45, 1st floor, Haji Kassam Chawl, Lamington Road. Under section 59 of the Bombay Police Act, 1951 Bombay Act XXII of 1951 , you are hereby informed that the following allegations are made against you in proceedings against you under section 57 of the said Act. In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 11 a.m. on 25-10-1954 to receive your explanation and to hear you and your witnesses, if any, in regard to the said allegations. I, N. P. Paranjapye, Superintendent, C.B.I., I.D., therefore require you to appear before me at H. P. Annexe I place on the said date viz. 25-10-1954 at 11 a.m. for the said purpose and to pass a bond in the sum of Rs. 500 with one surety in like amount for your attendance during the inquiry of the said proceedings. Should you fail to appear before me and to pass the bond as directed above, I shall proceed with the inquiry in your absence. Take numbere Allegations- That you have been companyvicted of offences as per particulars mentioned below- ------------------------------------------------------------- serial Court date of section sentence police numberDistrict companyvinction of law station case No. ------------------------------------------------------------- H. C. 14-10-1938 304/109 6 yrs. Nagpada Ps Bombay I. P. C. R.I. C. R. No. 324/109 2 yrs. 127/38 P. C. R.I. Con- currently . That you were arrested on 29-3-1948 in companynection with Nagpada P.S.C.R. No. 273 of 1948 u s 143, 147, 148, 149, 353, I.P.C. wherein you along with one Ramchandra Ishwarbhai and others companymitted rioting and criminal assault on a public servant, viz. a police companystable No. 4459/D to deter him from the execution of his lawful duties but you were discharged in the said case due to lack of sufficient evidence. That you were again arrested on 2-5-1948 in companynection with Nagpada P.S.C.R. No. 353 u s 143, 144, 146, 147, 148, 149, 324, I.P.C. wherein you along with one Rajaram Khemu Gawli and 7 others companymitted rioting armed with deadly weapons, viz., lathis, sodawater bottles etc. and caused hurt to one Gopal Khemu Gawli but you were discharged in the said case for want of sufficient evidence. That you were again arrested on 3-6-1949 in companynection with Nagpada P.S.C.R. No. 336 of 1949 u s 143, 147, 149, 225, 225-B, 332, I.P.C. wherein you along with one Shri Vithal Baloo and others companymitted rioting, assaulted a public servant, viz. a police officer Shri S. K. Kothare to deter him from the lawful discharge of his duties and made 3 persons in the lawful custody of the police to escape, but were discharged in the said case for want of sufficient evidence. That number you have been arrested on 9-10-1954 at about 12-50 a.m. in the companypany of 7 others, viz. Amir Masud 2 Francis Sherao China 3 Antoo Narayan Abdul Wahab Abdul Gafoor 5 Laxman Rama 6 Narayan Tukaram and 7 Rajaram Vishnoo out of whom persons mentioned at Nos. I and 6 are, previous companyvicts and that at the time of arrest you and persons mentioned at Nos. 1, 2, 3 and 4 were, armed with deadly weapons to wit, clasp knives, iron bar and a lathi, and thus you were reasonably suspected to be out to companymit an offence either against property or person And that you are likely again to engage yourself in the companymission of a similar offence falling either under Chapter XVI or XVII of the Indian Penal Code. Sd. N. P. Paranjapye Superintendent of Police, Crime Branch I , C.I.D. T.I. of Hari Dada Khemu Gawli. The petitioner appeared before the Superintendent on the 8th November 1954 with his companynsel and filed a long petition companytaining allegations running into 16 paragraphs showing cause against the order of externment proposed to be passed against him. That petition is Ex. B. The petitioner accepted the companyrectness of the allegation companytained in the first paragraph of Ex. A set out above, but denied the truth of the other allegations made therein against him which he characterised as based on old prejudice and sus- picion. As regards his companyviction referred to in the first paragraph aforesaid, he stated- I had unfortunately a companyviction in 1938 when was a mere youth. I have lived a clean and honourable life ever since. Then he goes on to make reference to the other cases charged against him and claimed that he had been discharged in those cases for want of sufficient evidence. The first respondent aforesaid ultimately passed the order of externment which is Exhibit C to the petition, on the 8th November 1954. After reciting the previous companyviction which was for offences under Chapter XVI, Indian Penal Code and that the petitioner was likely again to engage in the companymission of similar offences and saying that he was satisfied about the matters companytained in the previous numberice, the first respondent directed the petitioner under section 57 of the Act to remove himself outside the limits of Greater Bombay within two days from the date of the final order in the case pending against him, as numbered in the order, for a period of two years from the date of the order, and number to enter or return to the said area of Greater Bombay without the permission in writing of the Commissioner of Police, Greater Bombay, or the Government of Bombay. The petitioner preferred an appeal to the Government of Bombay against the said order of externment. But the appeal was dismissed. Substantially on those allegations this Court has been moved under article 32 of the Constitution. The first respondent has sworn to the affidavit filed in this Court to the effect that the petitioner has been fully heard by the authorities before the order impugned in this case was passed. It is further stated in the affidavit that in the previous case in which the petitioner had been companyvicted be bad been found guilty along with his brother Rajaram of having caused the death of a person who had given evidence against them in a previous trial. The first respondent further stated in the affidavit that the material examined by him before passing the order impugned showed that since 1948 the petitioner had been resorting to violence and was companycerned in a number of cases involving acts of violence, namely- In March 1948 a police companystable was assaulted. Though the petitioner was one of the persons companycerned with the crime, he was number charge-sheeted because sufficient evidence was number forthcoming against him. In April 1948 the petitioners brother had charged him and eight others with having thrown sodawater bottles and used lathis. The Presidency Magistrate, 17th Court, Mazgaon, Bombay, had to adjourn the case several times for recording evidence of witnesses who remained absent and ultimately the companyrt refused to grant further adjournment for the production of witnesses and the case ended in a discharge for want of evidence. In May 1949 the police had- arrested three persons including Rajaram aforesaid, the petitioners brother for being companycerned in sale of illicit liquor. While those arrested persons were being taken to the police lorry for being taken to the police station, the petitioner and other persons forcibly rescued those arrested persons from the custody of the police. But the case ultimately failed in August 1950 because the witnesses failed to turn up to give evidence against the accused including the petitioner. At about 12-50 a.m. on 9th October 1954, the Special Squad, Crime Branch, C.I.D., Bombay, while proceeding on their rounds numbericed the petitioner and seven others armed with an iron bar and lathi. On seeing the police van, they started running away and were chased and arrested by the police force. On arrest the petitioner and his other associates were found carrying clasp knives. The petitioner and three of the seven arrested persons were found smelling of alcohol. The -petitioner was placed on his trial for offences under the Bombay Prohibition Act and the Bombay Police Act. He was acquitted by the learned trial Judge because of discrepancies in the evidence of some of the prosecution witnesses. The respondent further averred that after examining all the material against him in the light of his previous companyviction under sections 304/109 and 324/109, Indian Penal Code, he was satisfied that the petitioner. was likely again to engage in the companymission of offences similar to those for which he had been previously companyvicted. Accordingly he passed the order of externment against the petitioner, as set out above. In support of the petition which was heard -along with Petitions Nos. 439 and 440 of 1955 in which the orders impugned had been passed under section 56 of the Act and which are being disposed of by a separate judgment the leading argument by Shri Purshotham raised the companytentions,- 1 that section 57 of the Act companytravened clauses d and e of article 19 1 of the Constitution and that the provisions of that section imposed unreasonable restrictions on the petitioners fundamental rights of free movement and residence and 2 that the order passed under section 57 against the petitioner is illegal inasmuch as it is based on vague allegations and inadmissible material, for example, on orders of discharge or acquittal. Each of the two broad grounds has been elaborated and several points have been sought to be made under each one of those heads. It has been companytended that the police have been vested with un- limited powers in the sense that any person whom they suspect or against whom they have their own reasons to proceed can be asked to remove, number only from any particular area, like Greater Bombay, but from the entire State of Bombay. Even if one order does number ask a person to remove himself out of the entire State, each authority within its respective local jurisdiction can ask a particular person to go out of that area, so that that person may find himself wholly displaced without any place to go to. Unlike the law relating to preventive detention, there is numberprovision for an Advisory Board which companyld examine the reasonableness of the order proposed to be passed or already passed, so that there is numbercheck on the exercise of power by the police authorities under the-Act, however flagrant the abuse of the power may have been. It is also companytended that the provisions as regards hearing by the police authorities and appeal to the State Government are illusory. The police is both the prosecutor and the judge and the remedy provided by the Act is a mere eye-wash. It is also pointed out that all kinds of offences have been clubbed together which have numberrational companynection with one another. Reliance was placed on certain observations made by this Court in a number of decisions,, viz., Chintaman Rao v. The State of Madhya Pradesh 1 The State of Madras V. V. G. Row 2 Thakur Raghubir Singh v. Court of Wards, Ajmer 3 Messrs Dwarka Prasad Laxmi Narain v. State of U. P. 4 and Ebrahim Vazir Mavat v. State of Bombay 5 . 1 19SO S.C.R. 759. 2 1952 S.C 597. 3 1953 C.R. 1049. 4 1954 S. CB. 803. 5 1954 S.C.R. 983. Section 57 of the Act which is particularly impugned in this case is in these terms- Removal of persons companyvicted of certain offences. If a ,person has been companyvicted- a of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or b twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or c thrice of an offence within a period of three years under section 4 or 12-A of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub- Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the companymission of an offence similar to that for which he was companyvicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe, and number to enter or return to the area from which he was directed to remove himself. Explanation-For the purpose of this section Can offence similar to that for which a person was companyvicted shall mean- in the case of a person companyvicted of an offence mentioned in clause a , an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and in the case of a person companyvicted of an offence mentioned in clauses b and c , an offence falling under the provisions of the Acts mentioned respectively in the said clause. In order to attract the provisions of this section, two essential companyditions must be fulfilled, viz. 1 that there should have been a previous companyviction under Chapter XII, XVI or XVII, Indian Penal Code, or two previous companyvictions under the Acts mentioned in clause b , or three previous companyvictions within a period of three years under the Acts mentioned in clause c and 2 that the authority named should have reason to believe that a person companying within the purview of any of the clauses a , b and c is likely again to engage himself in the companymission of an offence similar to that for which he had been previously companyvicted that is to say, for an offence falling under any of the three chapters mentioned in clause a , or if he had been twice companyvicted under the Beggars Act, or the Prevention of Prostitution Act, or thrice companyvicted under the Prevention of Gambling Act or the Prohibition Act so that, a previous companyviction for offences relating to companyn and Government stamps has been equated with one for offences affecting the human body chapter XVI or offences against property chapter XVII of the Indian Penal Code. I Chapter XII companytains sections 230 to 263 A . Chapter XVI companytains section 299 to section 377 and Chapter XVII companytains section 378 to section 462 of the Code. In other words, one companyvicted for companynterfeiting companyn may in terms of the impugned section 57 be said to have engaged himself in the companymission of a similar offence if he is likely to use criminal force or to companymit theft or extortion or robbery or dacoity or criminal misappropriation of property or criminal breach of trust. It has therefore been rightly pointed out on behalf of the petitioner that the range of the offences referred to in clause a of section 57 is very wide indeed and that it is difficult to point out any rational basis for clubbing them together. A person companyvicted under Chapter XII, Indian Penal Code of companynterfeiting Indian Coin or Government stamps may rightly be called the enemy of public finance and revenue, but is far removed from a person who may be companyvicted of murder or other offences against human body or against private property. But the legislature in its wisdom has clubbed all those offences together and it is number for this Court to question that wisdom provided the provisions of the Act do number impose unreasonable restrictions on right to freedom. Conviction under the Bombay Beggars Act and the Bombay Prevention of Prostitution Act have been clubbed together under clause b . and similarly previous companyvictions under the Bombay Prevention of Gambling Act and Bombay Prohibition Act have been clubbed together. So the previous companyvictions under the three clauses aforesaid have been placed in three different categories. Article 19 of the Constitution has guaranteed the several rights enumerated under that article to all citizens of India. After laying down the different rights to freedom in clause 1 , clauses 2 to 6 of that article recognise the right of the State. to make laws putting reasonable restrictions on those rights in the interest of the general public, security of the State, public order, decency or morality and for other reasons set out in those sub-clauses, so that there has to be a balance between individual rights guaranteed under article 19 1 and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and all other public interests which may companypendiously be described as social welfare. For preventing a breach of the public peace or the invasion of private rights the State has sometimes to impose certain restrictions on individual rights. It therefore becomes the duty of the State number only to punish the offenders against the penal laws of the State but also to take preventive action. Prevention,is better than cure applies number only to individuals but also to the activities of the State in relation to the citizens of the State. The impugned section 57 is an instance of the State taking preventive measures in the interest of the public and for safeguarding individuals rights. The section is plainly meant to prevent a person who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities. In doing so the State may have to curb an individuals activities and put fetters on his companyplete freedom of movement and residence in order that the greatest good of the greatest number may be companyserved. The law is based on the principle that it is desirable in- the larger interests of society that the freedom of movement and residence of a companyparatively fewer number of people should be restrained so that the majority of the companymunity may move and live in peace and. harmony and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property. The individuals right to reside in and move freely in any part of the territory of India has to yield to the larger interest of the companymunity. That the Act is based on sound principle cannot be gainsaid. Now the only question is whether the provisions of the impugned section are number justified in the larger interest of the companymunity, or, in other words, whether they impose a larger restriction than is reasonably necessary to meet the situation envisaged by the section. From that point of view we shall number examine the other arguments advanced to show that the provisions of the impugned section are unreasonable restrictions on individual right to reside in and move freely in any part of India. It has been observed by this Court in the case of Gurbachan Singh v. The State of Bombay 1 at p. 742, as per Mukherjea, J. as he then was - It is perfectly true that the determination of the question as -to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in article 19 1 d of the Constitution are reasonable or number within the meaning of clause 5 of the article would depend as much upon procedural part of the law as upon its substantive part and the companyrt has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed. In this case the attack against section 57 of the Act is directed both against the procedural part of the law and the substantive part. It has been companytended that the person dealt with under section 57 may be directed to remove himself altogether outside the limits of the State of Bombay because the Act extends to the whole of the State of Bombay. The provisions of section 57 can be applied either by the Commis- 1 1952 S.C.R. 737. sioner of Police for Greater Bombay and other areas for which a Commissioner may be appointed under section 7 or by the District Magistrate or a Sub-Divisional Magistrate specially empowered by the State Government in that behalf. Any one of the aforesaid authorities. has power to direct an individual dealt with under section 57 to remove himself outside the area within the local limits of his jurisdiction. Hence numbere of those authorities has the power to direct that person to remove himself outside the entire State of Bombay. The situation envisaged by the argument that a person may be called upon to remove himself out of the limits of the entire State of Bombay would number ordinarily arise because the idea underlving the provisions of sections 55 to 57 is the dispersal of gangs and removal of persons companyvicted of certain offences as would appear from the sub-heading II in chapter V, which is headed special measures for maintenance of public order and safety of State. A gang of criminals or potential criminals operates or may intend to operate within certain local limits and the idea behind the provisions of section 57 is to see to it that a person with previous companyviction who may have banded together with other such persons should be disbanded and hounded out of the limits of his ordinary activities, his associates also are to be similarly dealt with, so that the gang is broken up and the different persons companystituting it may be removed to different parts of the State so as to reduce their criminal activities to the minimum. Unless a person makes himself so obnoxious as to render his presence in every part of the Bombay State a menace to public interest including public peace and safety, every Commissioner of Police or district Magistrate or Sub- Divisional. Magistrate would number think of acting in the same way in respect of the same person. Hence, in our opinion, there is numbersubstance in this argument. It may be mentioned in this companynection that previous to the enactment of the impugned Act there was the Bombay District Police Act IV of 1890 which applied to the whole Presidency of Bombay except the Greater Bombay omitting all references to Sind and the City of Bombay Police Act, IV of 1902, applied to the City of Bombay except certain specified sections which applied to the whole of the Presidency of Bombay so that the two Acts aforesaid companyered the whole of the State of Bombay as it was companystituted after Independence. The two Acts aforesaid were repealed by the impugned Act which companysolidated the law for the regulation of the Police Force in , the State of Bombay which appears from the following preamble of the Act-.- Whereas it is expedient to amalgamate the District and Greater Bombay Police Forces in the State of Bombay into one companymon Police Force and to introduce uniform methods regarding the working and companytrol of the said Force throughout the State. Broadly speaking, section 46 of Act IV of 1890 and. section 27 of Act IV of 1902 companyrespond to the provisions of sections 56 and 57 of the Act. It was next companytended that unlike Preventive Detention laws there was numberprovision in the impugned law for an Advisory Board which companyld scrutinise the material on which the officers or authorities companytemplated by section 57 had taken action against a person. It cannot be, and has number been laid down, as a universal rule that unless there is a provision for such an Advisory Board such a legislation would necessarily be companydemned as unconstitutional. The very fact that the Constitution in article 22 4 has made specific provision for an Advisory Board companysisting of persons of stated qualifications with reference to the law for Preventive Detention, but has made numbersuch specific provision in article 19 Would answer this companytention. In this companynection reference may also be made to the decision of this Court in the case of N. B. Khare, v. State, of Delhi 1 which dealt with the companystitutionality of the East Punjab Public Safety Act of 1949 with reference to the provisions of article 19 of the Constitution. In that legislation there was a provision for an Advisory Board whose opinion, however, had numberbinding force. The Act was number struck down by this Court. On the other hand, in the case 1 1950 S.C.R. 519. of State of Madras v. V. G. Row 1 , section 15 2 b of the Indian Criminal Law Amendment Act, 1908, as amended by the Indian Criminal Law Amendment Madras Act, 1950, was held to be unconstitutional as the restrictions imposed on the fundamental right to form associations were number held to be reasonable in spite of the fact that there was a provision for an Advisory Board whose opinion was binding on the Government. Hence it cannot be said that the existence of an Advisory Board is a sine qua number of the companystitutionality of a legislation such as the one before us. It was next companytended that the proceedings are initiated by the police and it is the police which is the judge in the case and that therefore the provisions of the Act militate against one of the accepted principles of natural justice that the prosecutor should number also be the judge. In order to appreciate this argument reference --has to be made to the provisions of section 59 of the Act It provides that before action is taken under sections 55, 56 or 57 of the Act, the authority entrusted with the duty of passing orders under any one of those sections or any officer above the rank of an Inspector authorised by that officer or authority shall inform the person proceeded against in writing of the general nature of the material allegations against him in order to give him a reasonable opportunity of explaining his companyduct. If that person wishes to examine any witnesses, be has to be given an opportunity of adducing evidence. That person has the right to file a written statement and to appear in the proceeding by an advocate or attorney for the purpose of tendering his explanation and adducing evidence. If the person fails to appear or to adduce evidence, the authority or officer has the right to proceed with the enquiry and to pass such order as may appear fit and proper. It is thus clear that the criticism against the procedure laid down in section 59 is number entirely companyrect. The evidence or material on the basis of which a person may be proceeded against under any one of the sections 55, 1 1952 S.C.R. 597. 56 or 57 may have been companylected by police officers of the rank of an Inspector of Police or of lower rank. The proceedings., may be initiated by a police officer above the rank of Inspector who has to inform the person proceeded against of the general nature of the material allegations against him. But the order of externment can be passed only by a Commissioner of Police or a District Magistrate or a Sub-Divisional Magistrate specially empowered by the State Government in that behalf. Hence the satisfaction is number that of the person prosecuting, if that word can at all be used in the companytext of those sections. The person proceeded against is number prosecuted but is put out of the harms way. The legislature has advisedly entrusted officers of companyparatively higher rank in the police or in the magistracy with the responsible duty of examining the material and of being satisfied that such person is likely -again to engage himself in the companymission of an offence similar to that for which he had previously been companyvicted. The proceedings companytemplated by the impugned section 57 or for the matter of that., the other two sections 55 or 56 are number prosecutions for offences or judicial proceedings, though the officer or authority charged with the duty aforesaid has to examine the information laid before him by the police. The police force is charged with the duty number only of detection of offences and of bringing offenders to justice, but also of preventing the companymission of offences by persons with previous records of companyviction or with criminal propensities. As observed by Patanjali Sastri, C. J. in the case of State of Madras V. V. Row 1 , externment of individuals, like preventive detention, is largely precautionary and based on suspicion. To these observations may be added the following words in the judgment of Patanjali Sastri, C. J., supra with reference to the observations of Lord Finlay in Rex Halliday 2 - The companyrt was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. 1 1952 S. C.R, 597, 609. 2 1917 A.G. 260, 269. It is thus clear that in order to take preventive action under section 57 of the Act the legislature has entrusted police officers or magistrates of the higher ranks to examine the facts and circumstances of each case brought before them by the Criminal Investigation Department. But the legislature has provided certain safeguards against tyrannical or wholly unfounded orders being passed by the higher ranks of the police or the magistracy. It was next companytended that the-provisions relating to hearing any evidence that may be adduced by the police or by the person proceeded against and right of appeal to the State Government companyferred by section 60 of the Act are illusory We cannot agree that the right of appeal to the State Government granted to the person proceeded against by an order under section 57 is illusory because it is expected that the State Government which has been charged with the duty of examining the material with a view to being satisfied that circumstances existed justifying a preventive order of that nature, will discharge its functions with due care and caution. Section 61 has provided a further safeguard to a person dealt with under section 57 by providing that though an order passed under section 55, section 56 or section 57, or by the State Government under section 60 on appeal shall number be called in question in any companyrt, he may challenge such an order in a companyrt on the ground 1 that the authority making the order or any officer authorised by it had number followed the procedure laid down in section 57, or 2 that there was numbermaterial before the authority companycerned upon which it companyld have based its order, or 3 that the said authority was hot of opinion that witnesses were unwilling to companye forward to give evidence in public against the person proceeded against. In this companynection it was argued on behalf of the petitioner that section 59 only required the general nature of the material allegations against the person externed to be disclosed and that, as it did number further provide for particulars to be supplied to such a person, it would be very difficult for him to avail of at least the second ground on which section 61 permits him to get the matter judicially examined. But in the very nature of things it companyld number have been otherwise. The grounds available to an externee had necessarily to be very limited in their scope because if evidence were available which companyld be adduced in public, such a person companyld be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under section 107 or section 110. But the special provisions number under examination-proceed on the basis that the person dealt with under any of the sections 55, 56 or 57 is of such a character as number to permit the ordinary laws of the land being put in motion in the ordinary way, namely, of examining witnesses in open companyrt who should be cross- examined by the party against whom they were deposing. The provisions we are number examining are plainly intended to be used in special-, cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure. Reliance was placed on a number of decisions of this Court referred to above on behalf of the petitioner to show that the terms of section 57 impugned in this case companyld number companye within the permissible limits laid down by the Constitution in clause 5 of article 19. But arguments by analogy may be misleading. It has been repeatedly said by this Court that it is number safe to pronounce on the provisions of one Act with reference to decisions dealing with other Acts which may number be in pari materia. The case nearest to the present one is the decision of this Court in Gurbachan Singh v. State of Bombay 1 , where section 27 1 of the City of Bombay Police Act was under challenge and the Court upheld the companystitutionality of that section. If anything, section 57 impugned in this case provides a surer ground for proceeding against a potential criminal in so far as it insists upon a previous companyviction at least. At least in clauses b and c it insists upon more than one previous order of companyviction against the person proceeded against, thus showing that the authority dealing with such a 1 1952 S.C.R. 737. person had some solid ground for suspecting that he may repeat his criminal activities. It has number been companytended before us that the decision of this Court referred to above does number lay down the companyrect law or that it was open to challenge in any way. We do number think it necessary therefore to companysider in detail the other cases relied upon on behalf of the petitioner. It number remains to companysider the legality of the order itself. The bona fides of the order have number been questioned. What has been urged against the legality of the order impugned is that it is based on previous orders of discharge or acquittal. It is said that those orders were passed because there Was number sufficient evidence to bring the charge home to the accused. The insufficiency of the evidence itself may have been due to witnesses number being available to depose in open companyrt or they may have been overawed and their testimony tampered with. These are all matters which cannot be examined by this Court in an objective way, when the legislature has provided for the subjective satisfaction of the authorities or officers who have been entrusted with the duty of enforcing those special provisions of the Act. It cannot be laid down as a general proposition of law that a previous order of discharge or acquittal cannot be taken into account by those authorities when dealing with persons under any one of the provisions we have been examining in this case. it is number for us to examine afresh the materials and to be satisfied that the order impugned is companyrect. But the materials placed on the record of this case in the affidavit sworn to by the officer who was responsible for - the order impugned show at least one thing, namely, that the petitioner has number been a victim of an arbitrary order. For the reasons aforesaid, in our opinion, numbergrounds have been made out for issuing any writ or direction to the authorities companycerned or for quashing the orders impugned. The application is therefore dismissed. JAGANNADHADAS J.-I regret I am unable to persuade myself to agree with the view, which has companymended itself to the majority of the Court, as to the companystitutional validity of section 57 a of the Bombay Police Act, 1951 Bombay Act XXII of 1951 hereinafter referred to as the Act . This is a provision which prima facie infringes the fundamental right of a citizen under article 19 1 d and e of the Constitution. It can be supported only if, having regard to all the circumstances, it is possible to reach a satis- factory companyclusion that the imposition of the restrictions as provided thereunder is in the interests of the general public and reasonable. The fact that our Constitution which declares fundamental rights also permits a law of preventive detention under very limited safeguards and that such laws have taken the pattern of the exercise of power by the Government or by its officers for specified purposes on the basis of their subjective satisfaction, has made -us prone to reconcile ourselves to other kinds of restrictive laws affecting personal liberty though based on the subjective satisfaction of executive officers, if only they provide for certain minimum safeguards such as supply of grounds, right of representation, and the scope for review by a superior authority or by an advisory body. If one is to adopt this standard as furnishing the sine qua number of what is a reason- able law of preventive restriction of personal liberty, it may be possible to say that the provision under question satisfies the test. But the law of preventive detention stands on a very exceptional footing in our Constitution inasmuch as it is specifically provided for in the Constitution. The same Constitution has left the imposition of other restrictions on personal liberty to be judged by the companyrts with reference to the standards of reasonableness, in the interests of the public. While undoubtedly the above three safeguards may be taken as the minimum required to satisfy the standard of reasonableness, I am number prepared to assume that they are sufficient. It appears to me that the companystitutional validity of laws of preventive restriction, as opposed to the laws of preventive detention, have to be judged with reference to standards which this Court has generally accepted as regards the validity of restrictions on the other fundamental rights under article 19 1 of the Constitution. As repeatedly held by this Court, a proper balance must be struck between the fundamental right of the citizen and the social companytrol by the State in order to evolve the permissible restriction of the fundamental right under the Constitution. Now there can be numberdoubt that the ordinary provisions in the Criminal Procedure Code enabling the executive to take preventive measures are often enough felt inadequate, particularly in large cities and towns wherein there are -loose companygregations of population. In a general way therefore it may be said that to arm the executive officers with powers for preventive action against companymission of offences is number in itself unreasonable. Section 57 of the Act appears in Chapter V of the Act beaded Special measures for maintenance of public order and safety of State and is under the sub-head II Dispersal of gangs and removal of persons companyvicted of certain offences. The substantive provisions under head II are sections 55, 56 and 57. Section 55 relates to companytrol and dispersal of gangs. Section 56 relates to removal of persons about to companymit offences and section 57 relates to removal of persons previously companyvicted of certain offences. Sections 56 and 57 of the Act run as follows Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by numberification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf a that the movements of acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or b that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the companymission of an offence involv- ing force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are number willing to companye forward to give evidence in public against such person by reason of, apprehension on their part as regards the safety of their person or property, or c that an outbreak of epidemic disease is likely to result from the companytinued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to companyduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction by such route and within such time as the said officer may prescribe and number to enter or return to the said area from which he was directed to remove himself. If a person has been companyvicted- a of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or b twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or c thrice of an offence within a period of three years under section 4 or 12-4 of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub-Divisional Magistrate specially empowered by the State Government in this behalf, if -be has reason to believe that such person is likely again to engage himself in the companymission of an offence similar to that for which he was companyvicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and number to enter or return to the area from which he was directed to remove himself. Explanation-For the purpose of this section an offence similar to that for which a person was companyvicted shall mean- in the case of a person companyvicted of an offence mentioned in clause a , an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and in the case of a person companyvicted of an offence mentioned in clauses b and c , an offence falling under the provisions of the Acts mentioned respectively in the said clauses. Section 58 of the Act provides that a direction made under sections 56 and 57 number to enter a particular area shall be for such period as may be specified thereunder and shall in numbercase exceed a period of two years from the date on which it is made. This Court has, in Gurbachan Singh v. The State of Bombay 1 pronounced on the companystitutional validity of section 27 1 of the City of Bombay Police Act of 1902 Bombay Act IV of 1902 which, word for word, is almost the same section 56 of the Act above quoted omitting c thereof. As I understand that judgment, the view of the Court as to the reasonableness of that provision is based on the fact that under the said section it is essential for the exercise of the power, that in the opinion of the officer companycerned, witnesses are number willing to companye forward to give evidence in public against the person companycerned by reason of apprehension on their part as regards the safety of their own person or property. This is clear from the following passage at page 743 of the report The law is certainly an extraordinary one and has been made only to meet those, exceptional cases where numberwitnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas companystitutes a menace to the safety of the public residing therein. The provisions of section 57 of the Act are totally diff- erent. This section can be invoked without the requirement of number-availability of witnesses or of any opinion in that behalf being arrived at by the officer companycerned. 1 1952 S.C.R. 737. All that is sufficient for the use of this section is that the person companycerned should have been previously companyvicted of certain specified offences and that the officer companycerned has reason to believe that such person is likely again to engage himself in the companymission of a similar offence. The powers under this section can, therefore, be invoked in every case where there is likelihood of repetition of offence by a person who has been previously companyvicted of a similar offence if the offence is of the specified categories, even though witnesses may be willing to companye forward. I am number prepared to accept the idea that in such a situation it would be right or reasonable to clothe executive officers with the power to take preventive action restraining the liberty of the citizen instead of taking the chance of the offence being companymitted and leaving the deprivation of his liberty to the ordinary channels of criminal prosecution and punishment. It is true that in some matters anticipatory prevention is better than ex post facto punishment. But in a State where personal liberty is a guaranteed fundamental right, the range of such preventive action must be limited to a narrow companypass. What may be called the police power of the State in this behalf must be limited by the companysideration that the offence likely to be companymitted is of a serious nature, that the likelihood of its companymission is very probable, if number imminent, and that the perpetrator of the crime, if left to companymit, it, may go unpunished under the numbermal machinery on account of witnesses number being willing to companye forward. Section 151 of the Criminal Procedure Code authorises a police officer to arrest any person when he knows of his design to companymit any companynizable offence and to send him to the nearest Magistrate for such action which he companysiders fit or as may be feasible under sections 107 to 110 of the Criminal Procedure Code. Section 57 of the Act companystitutes a very wide departure from such a provision and there must be clear justification for so serious an encroachment on personal liberty as is companytemplated therein. A provision of the kind might number only be justified but may be called for, if companyfined to serious offences- serious either because of their -nature or of the attendant circumstances-and if witnesses are likely to be terrorised. I am unable to see why a person who may have previously companymitted any offence of a minor character and in ordinary circumstances, under Chapters XII, XVI or XVII of the Indian Penal Code, should number be left alone to the ordinary channels of prosecution. It appears to me that the proper balance between the fundamental right and social companytrol is number achieved by vesting the power in executive officers in such wide terms as in section 57 of the Act. Such a provision would lead to serious encroachment on the personal liberty of a citizen. While, of companyrse, abuse of power is number to be assumed to test its reasonableness, neither is a power given in wide terms and prima facie unreasonable, to be companysidered reasonable on an assumption of its proper use. I am also unable to see that the fact of previous companymission of any such offence without any limitation as to the period of time that way have elapsed, or the circumstances with reference to -which such an ,offence may have been companymitted, is any relevant companysideration to justify restriction on personal liberty by way of preventive action. I am number aware that, there is any accepted theory of criminology which justifies the view that a person who has companymitted an offence has any inherent tendency to repeat a similar offence-apart from environment, heredity or the like. In a trial for the companymission of an offence prior companyviction is ruled out as inadmissible. On an evaluation of the tendency to repeat a crime, I. do number see how it is permissible material except in cases where repeated previous companymission of offences indicates a habit. It has been said that the power under section 57 of the Act will be exercised only when the officer companycerned has before him number merely the fact of previous companyviction but other material on the basis of which he has reason to believe that the person company- cerned is likely to engage himself in the companymission of the offence. But this ultimately is a question of subjective satisfaction. It is number open to review by a Court It would be difficult to postulate how far such a factor, as previous companyviction, might have prejudiced a fair companysideration of the other material before the officer. To my mind the law -which permits subjective satisfaction to prevail on such material must be companysidered unreasonable. In my view, therefore., though the procedural portion of the law as provided in sections 59 and 61 of the Act may number be open to serious criticism, the substantive portion of the law relating to companytent of the power as provided under section 57 of the Act cannot be held to be in the nature of reasonable restriction of the fundamental right, for three reasons. Clause a of section 57 of the Act number being companyfined to offences serious in their nature or with reference to the attendant circumstances within the Chapters specified therein, prevention of the repetition thereof cannot be companysidered a reasonable restriction. It is in excess of what may be companysidered justifiable. The previous companymission of an offence ,of the category specified, without any reference to the time, environment and other factors has numberrational relation to the criterion of reasonableness in the interest of public. The exercise of the power number being limited by the companysideration of number-availability of witnesses is also number rationally related to the criterion of reasonableness in the interest of the public. For all the above reasons I companysider that section 57 of the Act is companystitutionally invalid. ORDER.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 323 of 1955. Appeal from the judgment and order dated July 2, 1953 of the Bombay High Court in Special Civil Application No. 159 of 1953. J. Kolah and A. C. Dave, for the appellant. R. Gokhale, K. R. Chaudhury and M. R. Rangaswamy, for respondent No. 2. 1956. October 31. The Judgment of the Court was delivered by GOVINDA MENON J.-On July 20, 1954, the High Court of Judicature at Bombay granted a certificate of fitness under Art. 133 1 c of the Constitution that the judgment of that companyrt dated July 2, 1953, passed in Special Civil Application No. 159 of 1953, was a fit one for appeal to the Supreme Court as it involved a substantial question of law, and it is in pursuance of such certification that the above appeal is number before this companyrt. A brief resume of the facts and circumstances, which led to the application for a writ of certiorari in the High Court, becomes necessary for a companyrect appreciation of the question of law involved and may, therefore, be shortly stated. The appellant which may hereafter, for the purpose of companyvenience, be called The Mill, is a limited companypany owning and possessing a Cotton Textile Spinning and Weaving Mill situated in Poona, employing a large number of workmen who have a union of theirs. The first respondent is a workman employed by the Mill and the second respondent is the Poona Girni Kamagar Union of which the first respondent is a member. Respondents 3 to 5 were formally added as parties in the first in-stance, but their names were struck off as unnecessary at the time of the hearing. The appellant was running 580 looms, for working which one weaver had been allotted at the rate of two looms and when things were in that state on August 29, 1951, the Management issued a numberice to the effect that from September 1, 1951, it was desired to carry on an experiment of four looms to a weaver for a period of 2 months, on 16 looms. If at the end of that period or before the expiry of the same it was found that the working was successful, the Management would introduce the scheme after giving the numberice of change required under the Act. The object of this numberice was ostensibly to introduce rationalization or rather efficiency system of work, if and when the suggested experiment proved successful. As a result of this numberice on September 4, 1951, the Secretary of the Union wrote to the Manager of the appellant Mill intimating that under the Bombay Industrial Relations Act the Management companyld number legally introduce any change in the existing system ,of working without first giving numberice of the change in the prescribed form to the representatives of the Union and workers and without going through the other procedure prescribed by the Act and the Management were further informed that if they insisted in carrying on the change illegally, the workmen would be free to move the proper companyrts. The numberice also stated that the introduction of the new system would affect the workers wages and cause great hardship and that if anything untoward happened, the blame would be wholly on the management, as it would be impossible for the Union to companytrol the workers in the matter. Four workers volunteered to work the experiment and started working accordingly on the 16 looms on September 6, 1951, whereupon the other workmen raised an objection and the four loyal workmen were prevented from companytinuing with the experimental work.- But the Management did number withdraw the numberice and numbere except the 4, was required by the Management to take part in the experiment. The second shift among the workmen also refused to work with the result that there was a companyplete strike in the Mills between the 6th and the 26th of September, 1951. On September 10, 1951 the appellant filed an application under sections 78 and 97 of the Bombay Industrial Relations Act, 1946 Bom. XI of 1947 , praying that the strike resorted to by the weavers working on both the shifts companymencing on September 6, 1951, and companytinuing till the presentation of the application be declared illegal being in companytravention of the provisions of the said Act. On September 16, 1951 the Vice-President of the Mill Mazdoor Sabha filed a written statement in answer to the above company- plaint stating that the workers did number strike work in companytravention of the Bombay Industrial Relations Act and that the weavers never refused to do their proper and usual work but refused only to do the illegal work insisted on them by the employers in other words, they were agreeable to have two looms per weaver and number to work the attempted experiment. Within three days of the filing of the above written statement, two of the workers filed an application under sections 78 and 98 of the Bombay Industrial Relations Act before the same Labour Court against the Management praying for a declaration that the action of the Management had resulted in an illegal lockout in companytravention of the Act, and, therefore, the Management should be ordered to withdraw the said illegal change. The appellant filed a written statement companyntering the allegations companytained in the application for the declaration of an illegal lockout and stated that their action was number in companytravention of the Bombay Industrial Relations Act, as it did number companystitute an illegal change. The Labour Court at Bombay heard both the applications together and by a companybined order dated September 26, 1951, held that since the Management had number companypelled any one to accept any work, their action companyld number be-considered an illegal lockout. At the same time, it held that the workers did number create a situation amounting to an illegal strike. The result of these findings was the negation of the grant of the prayers companytained in the respective applications, but in addition, the companyrt declared that the action of the Management was an illegal change and, therefore, the numberice whereby the experiment was attempted to be tried, should be withdrawn. The workers were companytent with the outcome of their application but the Management having been aggrieved by the declaration that their action amounted to an illegal change filed an appeal before the Labour Appellate Tribunal at Bombay Appeal No. 293 of 1951 upon which the learned Judges of the Labour Appellate Tribunal took the view that the strike by the workmen was illegal. They also companycluded that there was numberlockout on the part of the Management. That being the case, the order of the Labour Court declaring that there was an illegal change was set aside with the declaration that the strike in question was illegal with the necessary companysequences. I In order to get the said order of the Labour Appellate Tribunal quashed, an application for a writ of certiorari under Arts. 226 and 227 of the Constitution was filed by the two of the workers before the High Court of Bombay where Chagla C.J. and Dixit J., took the view that since the decision of the Appellate Tribunal was erroneous, the same should be quashed, with the result that the decision of the Labour Court was upheld. It is this judgment that is under appeal before us as a result of the certificate granted by the High Court of Bombay. A reading of the relevant portions of the statute is necessary to find out whether the order appealed against is justified or number. The Bombay Industrial Relations Act, 1946 was enacted to regulate the relations of employer and employees, to make provisions for the settlement of industrial disputes and to provide for certain other purposes. This statute repealed the Bombay Trade Disputes Conciliation Act, 1934 and the Bombay Industrial Disputes Act, 1938. Section 3 8 defines change as meaning an alteration in an industrial matter and sub-s. 15 companytains a definition of illegal change as meaning an illegal change within the meaning of sub-ss. 4 5 of s. 46 which are in the following terms- 1 2 3 Any change made in companytravention of the provisions of sub-sections 1 , 2 and 3 shall be illegal. Failure to carry out the terms of any settlement, award registered agreement or effective order or decision of a Wage Board , a Labour Court or the Industrial Court affecting, industrial matters shall be deemed to be an illegal change. Section 42 which speaks of change may also be quoted so far as it is relevant for our purpose Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give numberice of such -intention in the prescribed form to the representative of employees. He shall send a companyy of such numberice to the Chief Conciliator, the Conciliator for the industry companycerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed He shall also affix a companyy of such numberice at a companyspicuous place on the premises where the employees affected by the change are employed for work and at such other place as way be directed by the Chief Conciliator in any particular case. Industrial matter has also been defined in the Act in s. 3 18 in the following words Industrial matter means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and companyditions of employment, and includes- a all matters pertaining to the relationship between employers and employees, or to the dismissal or number- employment of any person b all matters pertaining to the demarcation of functions of any employees or classes of employees c all matters pertaining to any right or claim under or in respect of or companycerning a registered agreement or a submission, settlement or award made under this Act d all questions of what is fair and right in relation to any- industrial matter having regard to the interest of the person immediately companycerned and of the companymunity as a whole. Schedule II, para 4 mentions rationalization or other efficiency system of work and therefore when any such rationalization is introduced, it is obligatory upon the employer to give numberice of such an intention in the prescribed form to the representatives of the employees. We may also refer to s. 3 35-A defining stoppage in the following terms- Stoppage means a total or partial cessation of work by the employee in an industry acting in companybination or a companycerted refusal or a refusal under a companymon understanding of employees to, companytinue to work or to accept work, whether such cessation or refusal is or is number in companysequence of an industrial dispute. Sub-section 36 defines strike as follows- Strike means a total or partial cessation of work by the employees in an industry acting in companybination or a companycerted refusal or a refusal under a companymon understanding of employees to companytinue to work or to accept work, where such cessation or refusal is in companysequence of an industrial dispute. Chapter XIV of the statute companycerns itself with illegal strikes and lockouts of which s. 97 deals with illegal strikes, whereas s. 98 deals with an illegal lockout. According to s. 97 1 c , a strike shall be illegal if it is companymenced or companytinued only for the reason that the employer has number carried out the provisions of any standing order or made an illegal change. In companysidering whether the strike in question was illegal. the learned Judges of the High Court have expressed the opinion that there is a companymon law right for an employee to stop work and that it is only by statutory prohibition that certain strikes have been made illegal in the interest of labour relations. In the present case since there had been numberillegal change effected by the employer, the High Court took the view that on the very finding of the Appellate Tribunal that the change was a legal change, the strike in question did number companye within the ambit of s. 97. Learned companynsel for the appellant has pressed two arguments before us with regard to the companystruction of s. 97 1 e of the Bombay Industrial Relations Act., 1946. His first argument is that the High Court was in error when it held that there was any such right as a companymon law right of an employee to go on strike and s. 97 companystituted an inroad on that right. Learned companynsel has submitted that under s. 97 f c a strike shall be illegal if it is companymenced or companytinued only for the reason that the employer has number carried out the provisions of any standing order or has made an illegal change if a strike is illegal when it is company- menced or companytinued only for the reason that the employer has made an illegal change, a fortiori it must be illegal when it is companymenced or companytinued for a legal change. The companytention of learned companynsel is that by necessary implication cl. c companydemns a strike which is companymenced or companytinued for a change which is number illegal. The second argument of learned companynsel is that the true scope and effect of cl. c is this the word only -occurring in the clause goes with the word reason and if the strike is companymenced or companytinued for the only reason that the employer has made an illegal change, it shall be illegal. The test is number whether there was a legal or illegal change in fact but what was the reason for which the employees went on strike, and if the employees. companymenced or companytinued a strike only for the reason that the employer had made an illegal change, the strike would be illegal within the express terms of the clause. In our opinion it is unnecessary to decide in this case whether the first argument of learned companynsel for the appellant is companyrect or number because we are I clearly of the opinion that the second argument with regard to the companystruction of s. 97 1 c is companyrect and should prevail In this case the workmen themselves came to companyrt with the plea that the action of the employer amounted to an illegal change. In their application to the Labour Court, they said That for the above-mentioned reasons it is prayed that this Honourable Court be pleased to declare the said lockout by the opponent Mills as illegal being in company- travention of the Bombay Industrial Relations Act, and the opponent be ordered to withdraw the said illegal change. It is obvious, therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer was an illegal change. The action of the workmen, therefore, came within the express terms of s. 97 1 c of the Act. The learned Chief Justice did number companysider this aspect of the case, and reached a companyclusion with regard to the legality of the strike on a reasoning which did number give full effect to the words used in s.97 1 c . In our view,the true test was to find out the reason for which the strike was companymenced or companytinued, and it was unnecessary to companysider or decide whether there was a companymon law right of the workmen to go on strike or whether the work- -men had the right to go on strike as a means of companylective bargaining against a change which they did number like. Mr. Gokhale appearing for the workmen has taken us through the different provisions of the Bombay Industrial Relations Act, 1946, and has companytended that the workmen have the right to go on strike as a means of companylective bargaining against any measure adopted by the employer which the workmen may companysider to be detrimental to their interests, provided the strike does number companye within the prohibited ambit of s. 97. Even assuming that Mr. Gokhale is right in his companytention, it is clear to us that if the workmen companymence or companytinue a strike for the only reason that the employer has made an illegal change, they companye within the express terms of s. 97 1 c . It is immaterial whether the change is subsequently found by the Labour Court to be a legal change. It is worthy of numbere that there is a separate provision for imposing a penalty on an employer who makes an illegal change. The relevant companysideration, however, with regard to s. 97 1 c is the reason for which the strike is companymenced or companytinued. That reason in this particular case is clear enough. The workmen themselves said that they companymenced and companytinued the strike because the employer had made an illegal change. That being the position, the strike was illegal within the express terms of s. 97 1 c of the Act. We are, therefore, of the opinion that, on a proper interpretation of s. 97 1 c of the -Act, the strike which was companymenced and companytinued from September 6, to September 26, 1951, was clearly illegal. The appeal is, accordingly, allowed and the order of the High Court dated July 2, 1953, is set aside. The result, therefore, is that the order of the Labour Appellate Court dated September 4, 1952, stands, with the declaration that the strike in question was illegal with its usual companysequences. In this case, the appellant had agreed, while asking for a certificate from the Bombay High Court for leave to appeal to the Supreme Court, to pay the taxed companyts of the respondents in one set. Learned companynsel for the appellant himself has drawn our attention to the agreement. In view of that it is number necessary for us to decide in this case whether it was open to the Bombay High Court to pass any order about companyts in this Court while granting a certificate of fitness under Art.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 32 of 1955. Appeal from the judgment and decree dated May 5, 1954, of the High Court of Punjab at Chandigarh in Regular First Appeal No. 115 of 1953 arising out of the decree dated -June 6, 1953, of the Court of the Subordinate Judge, 1st Class, Delhi, in suit No. 26 of 1953. Dewan Chaman Lal and Ratan Lal Chawla, for the appellant. C. Setalvad Attorney-General for India, Porus A. Mehta and R. H. Dhebar, for the respondent. 1956. November 6. The Judgment of the Court was delivered by SINHA J.-The main question for determination in this appeal from the companycurrent decisions of the companyrts below is whether the Delhi and Ajmer Rent Control Act, XXXVIII of 1952 which hereinafter will be referred to as the Control Act is applicable to the premises in question. The companyrts below have companye to the companyclusion that in view of the provisions section 3 a of the Control Act the market called the New Fruit and Vegetable Market, Subzimandi, under the adminis- tration the respondent, the Delhi Improvement Trust, which hereinafter will be referred to as the Trust is Government property to which the provisions of the Act are number attracted. This appeal has been brought to this Court on a certificate granted by the High Court of Judicature of the State of Punjab that the case involved a substantial question of law as to the legal status of the respondent vis a vis the Government. The sequence of events leading up to the institution of the suit by the appellant The Fruit and Vegetable Merchants Union, Su bzimandi a registered body under the Indian Trade Unions Act, giving rise to this appeal may shortly be stated as follows By an agreement dated, March 31, 1937, Exhibit D-5 between the Secretary of State for India in Council and the Delhi Improvement Trust, which will have to be set out in detail hereinafter and the companystruction of which is the main point in companytroversy between the parties, a certain area of the land admittedly belonging to Government was placed at the disposal of the Trust for the orderly expansion of Delhi under the supervision of a single authority. The said property was companypendiously called the Nazul Estate. By a letter dated May 1/2, 1939 number exhibited but filed in the High Court at the appellate stage the Chairman of the Trust forwarded a companyy of the resolution No. 551 dated April 24,1939, Exhibit D-15 to the Chief Commissioner of Delhi. The resolution sets out the scheme for the companystruction of the new Subzimandi Fruit Market on a gross area of 10.87 acres including certain lands which till then did number vest in the Trust. The Chairman asked for administrative sanction of the Government of India to place the additional area at the disposal of the Trust on the same terms as those applicable to the Nazul Estate aforesaid held under the agreement, Ex. D-5. The resolution aforesaid sets out the object and history of the scheme. It companytains the categorical statement that Government is the owner of all the land included in the scheme. The position according to the revenue records is given in the statement on the next page. The scheme then sets out in great detail the several structures to be companystructed and the, profit and loss figures. Under the heading Computation of revenue surplus occur the following significant statements very much relied upon by the appellant- The revenue surplus of Rs. 4,530/- is made up as follows and is based on the recommendation that the Trust shall own and maintain the market. Under the heading Future Jurisdiction the following significant passage occurs- At this stage, if the suggestion is accepted that the, Trust should own and run the market at least until it is firmly established, and in view of the fact that Government are -the sole owners of the land, numberdifficulty is anticipated due to divided territorial jurisdiction of the two local authorities and numberchange is proposed. The letter enclosing the resolution of the Trust as aforesaid companytains a summary of the scheme, a portion of which is as follows An estimated capital expenditure of Rs. 4.73 lakhs is involved. On this capital expenditure there will be a capital deficit of Rs. 4.20 lakhs and a recurring revenue surplus of Rs. 4,530. This financial result assumes ownership and management of the market by the Trust, and takes into account all charges on maintenance and day-to-day management which would otherwise fall to a local body. The scheme involves numberacquisition of land, but assumes transfer free of charge of an area of 10.87 acres of Government land, all of which except for 1,510 square yards, falls within the limits of the Civil Lines Notified Area Committee. Underlined by us . In answer to this companymunication from the Trust, the Chief Commissioner sent the letter Ex. D-8 dated May 13, 1939, sanctioning under s. 22-A of the Trust Law the scheme of the New Fruit and Vegetable Market as proposed in the resolution aforesaid at a companyt number exceeding Rs. 4,73,186. The sanction is in terms made subject to the remarks 1 that the whole of the land required for the companystruction of the new market is the property of the Government , and 2 that the trust will administer the new market on its companypletion. It will thus appear that it was clearly understood that the land on which the market was to be companystructed would companytinue to be the property of the Government in modification of the proposal made by the Trust as aforesaid, the Trust only being vested with the power to administer the new market. On receipt of the letter aforesaid of the Chief Com- missioner, the Chairman of the Trust requested the former to obtain the orders of the Government of India to place the additional land required for the market at the disposal of the Trust under s. 54-A of the United Provinces Town Improvement Act, VIII of 1919, which will hereinafter be referred to as the Improvement Act as extended to the Province of Delhi, on the same terms applicable to other Nazul Estate held under the agreement between the Trust and the Government of India Ex. D-7 . By his letter dated August 10, 1939, ExD-6 the Chief Commissioner forwarded the orders dated June 21, 1939, of the Government of India agreeing to the proposal aforesaid of the, Trust placing the additional area at the disposal of the Trust on the original terms aforesaid. This is the genesis of the New Fruit and Vegetable Market, Subzimandi, which hereinafter will be referred to as the Market, for a period of six years with effect from May 25, 1942, at an annual rent- of Rs. 35,000 rising every year by Rs. 2,000 to Rs. 45,000 in respect of the sixth year of the lease. In anticipation of the termi- nation of the lease period aforesaid the Trust advertised the auction of the market for a fresh settlement. That occasioned the suit for an injunction by the plaintiff against the Trust in the Court of the Senior Subordinate Judge of Delhi, instituted on March 18, 1948. The Court granted the plaintiff an interim injunction restraining the defendant from putting the market to auction. The said ex parte order of injunction was companytested by the Trust with the result that the trial Court dissolved that injunction. The plaintiff carried an appeal to the High Court of Punjab at Simla. During the pendency of the appeal a settlement was arrived at between the parties and the plaintiffs offer of Rs. 1,50,000 as annual rent of the market on the expiry of the lease was accepted by the Trust. This settlement is evidenced by the resolution of the Trust dated February 24, 1949 Ex. D-13 . In pursuance of that settlement a fresh lease was executed. By the indenture Ex.D-4 dated April 22, 1949, the plaintiff was granted a fresh lease for the period May 25, 1948, to March 31, 1950, at an annual rent of Rs. 1,50,000. One of the terms of the lease, which is a registered document, was- That the lessee shall on expiry of the lease or on its determination by the lessor, vacate the premises and deliver its peaceful possession to the lessor. If the lessee fails to do so, he shall be liable to pay double the rent as liquidated damages for the unauthorised period of occupation till such time as he vacates it or he is ejected by process of law. Paragraph 22 of the indenture aforesaid companytains the following important aidmission- that both the lessor and lessee agree that the premises in dispute are owned by the Government and the provisions of the Delhi Ajmer Merwara Rent. Control Act 1947 do number apply to the same. The effect of this admission is also one of the companytroversies between the parties and shall have to be adverted to later. It appears that during the pendency of the second lease aforesaid, negotiations had started between the parties for extension of the period of the lease. The plaintiff made an offer of a fresh lease for a further period of five years at an annual rent of rupees two lakhs. But the Trust by its resolution dated May 25, 1950, Ex. D-12 aoreed only to extend the period by two years on the existing companyditions, subject to enhancement of rent to Rs. 2 lakhs per year. The plaintiffs case in the plaint is that these onerous terms successively enhancing the rent to Rs. 2 lakhs per year were agreed to by it as it had numberother alternative in view of the plaintiffs need. The plaintiff has been paying the enhanced rent of Rs. 2 lakhs per year in view of the resolution aforesaid of the Trust but has all the same started proceedings under s. 8. of the Control Act, for fixation of standard rent in respect of the market. The Trust got an advertisement inserted in the Hindustan Times, New Delhi, dated March 5, 1953, inviting tenders for the lease of the market for a period of three years from April 1, 1953. The plaintiffs case in the plaint is that the tenancy in favour of the plaintiff still subsisted and had number been terminated in accordance with law. That was the cause of action for the plaintiff to institute the present suit on March 9, 1953. The plaintiffs prayer in the plaint is that a decree for a permanent injunction may be passed in favour of the plaintiff restraining the defendant from evicting the plaintiff from the market. The suit was companytested by the Trust on the allegations that the market had been companystructed on Nazul land under the authority of the Delhi State Government with Government funds, that the market was Government property and was only being managed by the defendant on behalf of the Government, that the Control Act by virtue of s. 3 a thereof was number applicable to the premises in question and that therefore the plaintiff was liable to be ejected as the term of its lease had expired. Reliance was also placed on behalf of the defendant on the provisions of the Government Premises Eviction Act, XXVII of 1950, read with the Requisitioning and Acquisition of Immovable Property Act, XXX of 1952. On those pleadings a number of issues were joined between the parties of which the most important is issue No. 1- Whether the property in dispute belongs to the Government within the meaning of s. 3 a of the Rent Control Act, 1952 Both the companyrts below have answered that issue in the affirmative, that is to say, in favour of the defendant. The plaintiff prayed for and obtained the necessary certificate from the High Court that the case involved substantial questions of law as to the interpretation of the relevant statute and the agreement Ex. D-5 between the Government of India and the Delhi Improvement Trust. Hence this appeal. It has been companytended on behalf of the appellant that on a true companystruction of the provisions, particularly s. 54A of the Improvement Act as applied to the Province of Delhi and the agreement Ex. D-5 between the Government of India and the Trust, as also of the companyrespondence that passed between the Chief Commissioner of Delhi and the Trust, the land on which the market was companystructed and the structure itself belonged to the Trust and that therefore the provisions of the Control Act were applicable to the tenancy created by the Trust in favour of the plaintiff and that being so, the plaintiff companyld number be ejected by the defendant on the expiry of the term or the extended term of the lease. On the other hand, it has been argued on behalf of the defendant-respondent that the Trust is the statutory agent of the Government and has-to function in accordance with the provisions of the statute aforesaid, namely, the Improvement Act. The agency was created under the provisions of s. 54A 1 of the Improvement Act, the terms of the agreement being incorporated in the indenture, Ex. D-5, dated March 31 1937. The argument further is that in accordance with the scheme as embodied in the agreement the Government was to hand over to its agent, the Trust, Government property which vests in possession of the agent who has to manage and develop the property with funds made available to it by Government. Proper accounts have to be kept by the Trust of the monies thus advanced by Government in a separate account. The Trust has also to pay a certain fixed sum by way of revenue on the property placed at its disposal. The income from the property in the hands of the Trust has to be applied to payment of interest on money advanced by Government at a specified rate, as also to expenses for the management and improvement of the property and any surplus left over out of the income of -the property in the hands of the Trust after meeting all the outgoing has to be placed at the disposal of Government to be spent according to its directions. Thus the case of the respondent is that numberlegal title was created in favour of the Trust and the land, as also the structures companystructed by the Trust with the monies thus advanced by Government are the property of the Government. The Trust as the statutory agent has only to manage and develop the property in accordance with schemes sanctioned by Government. Consequently, it was argued that the market in question belongs to Government and is number governed by the Control Act. The question as to in whom the title to the market in question vests may be discussed in two parts, 1 title to the land on which the market is situate, and 2 title to the buildings admittedly companystructed by the Trust. Adverting first to the question of title in respect of the land, it is companymon ground that before it was placed at the disposal of the Trust it was Government property. The question, therefore, naturally arises whether either by the provisions of section 54A relied upon by both the parties in this companynection, or by virtue of the terms of the indenture aforesaid or by the companybined operation of the two, title to the land has become vested in the Trust. The appellant companytends it is so vested. The respondent companytests this proposition and companytends that there are numberwords in the statute or in the agreement which either separately or together can be said to have transferred the pre-existing title of the Government to the Trust. It is pointed out on behalf of the respondent that section 54A only authorises Government to place the land in question at the disposal of the Trust which has to hold it in accordance with the terms agreed upon between them, as evidenced by the indenture Ex. D-5. Let us examine those terms. The agreement provides, inter alia, that with a view to the orderly expansion of Delhi under the supervision of a single authority the Government agreed to place at its disposal the Nazul Estate described in Schedule 1 , with effect from April 1, 1937. One of the companyditions stipulated was that the Trust shall hold and manage the said Nazul Estate on behalf of the Government. These words cannot be companystrued as transferring title to the Nazul Estate from Government to the Trust. They amount to companystituting the Trust as an agent of the Government to hold possession of the property and to manage the same for the purpose for which the Trust had been created. The Trust is enjoined to use its best endeavours for the improvement and -development of the said Nazul Estate in accordance with the provisions of the Improvement Act, provided that numberexpenditure shall be incurred upon the purchase of land to be added to the said Nazul Estate unless the proposal to make the purchase has been specifically included in an Improvement Scheme sanctioned under section 42 of the said Act. Particular reliance was placed on behalf of the appel- lant on the following terms in the indenture to show that the title to the Nazul Estate vested in the Trust The Trust may sell or lease any land included in the said Nazul Estate in pursuance of the provisions of an Improvement Scheme sanctioned under section 42 of the said Act. The Trust may, otherwise than in pursuance of an Improvement Scheme sanctioned under section 42 of the said Act, sell any land included in the said Nazul Estate. In order to appreciate the true legal position it is necessary here to examine some of the provisions of the Improvement Act bearing on this aspect of the case. Section 22-A occurring in Chap 111-A vests the Trust with the power to undertake any works and incur any expenditure for the improvement or development of the area to which the Act may have been extended. Section 23 in Chap. IV sets out in detail what is meant by An improvement Scheme. It lays down that the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme, the companystruction or reconstruction of buildings. the sale, letting or exchange of any property companyprised in the scheme and doing of all incidental acts necessary for the execution of the scheme may be undertaken by the Trust. Section 24 sets out the different types of improvement schemes including a general improvement scheme, a re-building scheme, a re-housing scheme, a development scheme etc., and the sections following s. 24 lay down in detail the scope of the different types of improvement schemes enumerated in s. 24. Section 42 requires the Chief Commissioner to announce an improvement scheme sanctioned by him by numberification and thereupon the Trust embarks upon the execution of the scheme. Then companyes Chap. V dealing with the powers and duties of the Trust when a scheme has been sanctioned. In this chapter occur ss. 45 to 48 which provide for the vesting of certain properties in the Trust. Section 45 lays down the companyditions and the procedure according to which any building, street, square or other land vested in the Municipality or Notified Area Committee may become vested in a Trust. Similarly, s. 46 deals with the vesting in the Trust of properties like a street or a square as are number vested in a Municipality or Notified Area Committee. These sections, as also ss. 47 and 48 make provision for companypensation and for empowering the Trust to deal with such property vested in it. The vesting of such property is only for the purpose of executing any improvement scheme which it has undertaken and riot with a view to clothing it with companyplete title. As will presently appear, the term vesting has a variety of meaning which has to be gathered from the companytext in which it has been used. It may mean full ownership, or only possession for a particular-purpose, or clothing the authority with power to deal with the property as the agent of another person or authority. Coming back to the terms of the indenture with reference to the power of the Trust to sell or lease any land included in the Nazul Estate, certain companyditions are laid down for the exercise of the aforesaid power to transfer. The Trust is empowered to sell any land included in the Nazul Estate on its own authority only in cases where the sale is for full market value and which does number exceed Rs. 25,000/-. -In other cases the transaction has to be sanctioned either by the Chief Commissioner or by Government and in every case the forms of companyveyances and leases by the Trust have to be approved by Government. It would thus appear that the power to transfer by way of sale, lease or otherwise, vested in the Trust is number an unlimited or an unqualified power but a power circumscribed by such companyditions as the Government or the Chief Commissioner, as the case may be, thought fit to impose. The imposition of those companyditions is number companysistent with the title to the property vesting absolutely in the Trust. On the other hand, the imposition of those companyditions is more companysistent with the proposition companytended for by the learned Attorney-General on behalf of the res- pondent that the Trust was only companystituted a statutory agent on behalf of the Government in accordance with the provisions of the Improvement Act and the terms of the indenture, Ex. D-5. It is numbereworthy that there are numberprovisions either in the Improvement Act or in the indenture, Ex. D-5, to the effect that the title to the Nazul Estate vested in the Trust. It must, therefore, be held that numbergrounds have been made out for holding that title to the land on which the market stands was companyveyed by Government to the Trust. We turn number to the question whether apart from title to the land, title to the building standing upon the land is vested in the Trust. In order to examine the companytentions raised on behalf of the appellant-it is necessary to set out the remaining portion of the terms of the indenture aforesaid. The Trust was to assume full liability for all expenditure to be incurred upon works of improvement and to arrange for the companypletion of those works to the satisfaction of Government. The Trust is also enjoined to maintain in accordance with the statutory rules separate accounts of all revenue realised from, and all expenditure incurred upon, the said Nazul Estate and to pay to Government the sum of Rs. 2 lakhs being the equivalent of the net annual revenue in respect thereof subject to certain companyditions, number material to this case. Then follows the. most important clause in these terms-- Any surplus funds in the Nazul Development Account remaining at the end of each financial year when the said sum has been paid shall be put at the disposal of Government and shall be applied until further orders of Government to the further improvement and development of the said Nazul Estate and or to the repayment of loans made to the Trust as Government may direct. Government on its part undertook to finance either in part or in whole such schemes as may be agreed between the parties and also to advance loans at interest equal to Government rates for the time being for loans to Local Authorities. It was in pursuance of the terms aforesaid that the scheme of the building of the market in question was put through at an estimate. companyt of a little less than five lakhs of rupees. It is clear upon the terms of the agreement shortly set out above that the market was companystructed by the Trust on Government land with Government funds advanced by way of loan at interest. On those facts what is the legal position of the Trust vis-a-vis the Government in respect of the ownership of the property ? It is important, therefore, to determine the true nature of the initial relationship between the Government and the Trust. The learned companynsel for the appellant companyceded that relationship companyld number be described in terms of ordinary legal import, that is to say, in, terms of mortgagor and mortgagee, or lessor and lessee, or licensor and licensee. He companytended that it was a peculiar relationship which companyld number be defined in exact legal phraseology, but all the same, that the Trust was the owner of the market, especially in view of the fact that, as admitted by the defendants companynsel at the trial, the Trust had repaid the entire amount of five lakhs odd advanced by Government for the companystruction of the market. This result, it was further companytended, follows from the terms of s. 54A of the Improvement Act. The Attorney-General appearing on behalf of the respondent also strongly relied upon the terms of that section for his companytention that the relationship between the Trust and the Government was that of agent and principal. It is therefore necessary to examine closely the provisions of that section which is in these terms- The Government may, upon such terms as may be agreed upon between the Government and the Trust, place at the disposal of the Trust any properties, or any funds or dues, of the Government and thereupon the Trust shall hold or realise such properties, funds and dues in accordance with such terms. If any immovable property, held by the Trust under sub- s. 1 is required by the Government for administrative purposes, the Trust shall transfer the same to the Chief Commissioner upon payment of all companyts incurred by the Trust in acquiring, reclaiming or developing the same, together with interest thereon at such rate as may be fixed by the Chief Commissioner calculated from the day on which this Act companyes into force or from the date on which such companyts were incurred, whichever is the later. The transfer of any such immovable property shall be numberified in the gazette and such property shall thereupon vest in the Chief Commissioner from the date of the numberification. The section quoted above finds place in Chap. VA, headed Government Property Held by Trust. It is manifest upon a reading of the entire section that there are numberexpress words of companyveyance whereby title is transferred by Government to the Trust either absolutely or upon certain companyditions. As applied to the present case, sub-s. 1 only provides that the Government would place the property in question at the disposal of the Trust which shall hold the same in accordance with the terms as may be agreed between them, that is to say, in accordance with the terms of the agreement aforesaid, Ex. D-5 . Placing the property at the disposal of the Trust does number signify that Government had divested itself of its title to the property and transferred the same to the Trust. Clause 12 of the agreement Ex. D-5 to the effect that Government may at any time on giving six months numberice terminate this agreement clearly indicates that the Government had created this agency number on a permanent basis. but as a companyvenient mode of having its schemes of improvement implemented by a single agency with wide powers of management and expenditure of funds placed at its disposal, either by way of income from the property or by way of advance from Government funds. Sub-s. 1 . therefore, does number in express terms or by necessary implication companyfer any title on the Trust in respect of the market. The Trust only holds the market and realizes the income therefrom which is disbursed in accordance with the terms of the agreement and the rules framed by the Chief Commissioner in exercise of the powers companyferred on him by cl. e of sub-s. 1 of s. Our attention was called to some of those statutory rules, particularly rules, 21, 36, 38 and 156 read along with the forms and the Appendix. It is number necessary to discuss those rules in detail because on a companysideration of those rules we are satisfied that they are more companysistent with the Trust being a statutory agent of the Government, which has to maintain separate accounts in. respect of nazul property. Any reappropriation from nazul to number-nazul or vice-versa companyld number be made by the Trust without the prior sanction of the Chief Commissioner. The method of keeping accounts in respect of the nazul estate would show that the Trust had to function as the statutory agent of the Government in the matter of the administration of the Trust funds with particular reference to the nazul estate with which we are immediately companycerned. But it has been argued on behalf of the appellant that sub- s. 2 of s. 54A quoted above postulates that the Trust is the owner of the property otherwise the sub-section would number speak of the Trust having to transfer immovable property held by it to the Chief Commissioner in certain companytingen- cies, upon payment of all companyts incurred by the Trust in acquiring, reclaiming or developing that property together with interest calculated in the way set out in that sub- section. It should be numbered in this companynection that what the Government was required to pay was number the market value of the property but only the companyt incurred by the Trust. That provision apparently was made for the purpose of accounting between the different branches of the Trust activities. If title really vested in the Trust, it would be entitled to receive from Government the price of the property and number merely required to be reimbursed in respect of the actual expenditure on the scheme. Particular reliance was placed upon the words and such property shall thereupon vest in the Chief Commissioner. It was argued that unless the property previously vested in the Trust it companyld number upon the transfer companytemplated by sub-s. 2 vest in the Chief Commissioner. This argument assumes that the word vest necessarily signifies that title to the property resides in the Trust. But the word vest has several meanings with reference to the companytext in which it is used. In this companynection reference may be made to the following observations of Lord Cranworth in Richardson v. Robertson 1 The word vest is a word, at least of ambiguous import. Prima facie vesting in possession is the more natural meaning. The, expressions investiture -clothing-and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But 1 1862 6 L.T. 75, at P. 78. I am willing to accede to the argument that was pressed at the bar, that by long usage vesting ordinarily means the having obtained an absolute and indefeasible right, as companytra-distinguished from the number having so obtained it. But it cannot be disputed that the word vesting may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession. Similarly with reference to the provisions of a local Act 5 Geo. 4, c. Ixiv , it was held that the word vest did number companyvey a freehold title but only a right in the nature of an easement. The following words of Willes, J. in Hinde v. Charlton 1 are relevant- words, which in terms vested -the freehold in persons appointed to perform some public duties, such as canal companypanies and boards of health, have been held satisfied by giving to such persons the companytrol over the soil which was necessary to the carrying out the objects of the Act without giving them the freehold In the case of Coverdale v. Charlton 2 , the Court of Appeal on a companysideration of the provisions of the Public Health Act, 1875 38 and 39 Vict. c. 55 with particular reference to s. 149, has made the following observations at p. 116- What then is the meaning of the word vest in this section ? The legislature might have used the expression transferred or companyveyed, but they have used the word vest. The meaning I should like to put upon it is, that the street vests in the local board qua street number that any soil or any right to the soil or surface vests, but that it vests qua street. Referring to the provisions of s. 134 of the Lunacy Act, 1890 53 54 Vict. c. 5 in the case of In re Brown a lunatic 3 it has been laid down by Lindley, L. J., that the word vested in that section included the right to obtain and deal with without being actual owner of the lunatics personal estate. 1 1866-67 C.P. Cases 104 at 116. 2 1878-79 4 Q.B.D. 104. 3 1895 2 Ch. 666. In the case of Finchley Electric Light Company v. Finchley Urban District Council 1 , adverting to the provisions of s. 149 of the Public Health Act, 1875, supra Romer, L.J., has made the following observations at pp. 443 and 444- Now, that section has received by this time an authoritative interpretation by a long series of cases. It was number by that section intended to vest in the urban authority what I may call the full rights in fee over the street, as if that street was owned by an ordinary owner in fee having the fullest rights both as to the soil below and as to the air above. It is settled that the section in question was only intended to vest in the urban authority so much of the actual soil of the street as might be necessary for the companytrol, protection, and maintenance of the street as a highway for public use. For that proposition it is sufficient to refer to what was said by Lord Halsbury, L. C., and by Lord Herschell in Tunbridge Wells Corporation v. Baird 2 I That section has numberhingto do with title it is number companysidering a question of title. No matter what the title is of the person who owns the street, the section is only companysidering how much of the street shall vest in the urban authority That the word vest is a word of variable import is shown by provisions of Indian statutes also. For example, s. 56 of the Provincial Insolvency Act V of 1920 empowers the companyrt at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that such property shall thereupon vest in the receiver. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver number for all purposes but only for the purpose of the Insolvency Act and the receiver has numberinterest of his own in the property. On the other hand, ss. 16 and 17 of the Land Acquisition Act. Act I of 1894 , provide that the property so acquired, upon the happening of 1 1903 1 Ch. 437. 2 1896 A.C. 434. certain events, shall vest absolutely in the Government free from all encumbrances. In the cases companytemplated by ss. 16 and 17 the property acquired becomes. the property of Government without any companyditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is number for any limited purpose or limited duration. It would thus appear that the word vest has number got a fixed companynotation, meaning in all cases that the property is owned by the person or the autho- rity in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the companytext in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly ss. 45 to 49 and 54 and 54A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do number necessarily mean that ownership has passed to any of them. The question of the ownership of the structure built upon Government land by the Trust may be looked at from another point of view. We have already held that the Trust was in the position of a statutory agent of Government and had erected the structure with money belonging to Government but advanced at interest to the Trust. In such a situation the structure also would be the property of Government, though for the time being it may be at the disposal of the Trust for the purpose of managing it efficiently as a statutory body. Simply because the Trust erected the structure in question and later on paid up the amount advanced by Government for the purpose would number necessarily lead to the,legal inference that the structure was the property of the Trust. In this companynection reference may be made to the decision of this Court in Bhatia Co-operative Housing Society Ltd. v. D. C. Patel 1 . The case is number on all fours with the facts of the present case. But the following observations of Das J. as he then was at p. 195 of the report are pertinent- It is true that the lessee erected the building at his own companyt but he did so for the lessor and on the 1 1953 S.C.R. 185. lessors land on agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the companysideration for the lessor granting him a lease, for 999 years number only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor may number have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law. of fixtures under s. 108 of the Transfer of Property Act may be different from the English law, but s. 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became part of the land and the property of the lessor and the lessee took a lease on that footing. In our opinion, therefore, it cannot be said that either under the provisions of the Improvement Act or in accordance with the terms of the agreement Ex. D-5 or the two taken together, the market became the property of the Trust. We have already numbericed the relevant portions of the companyrespondence that passed between Government and the Trust to show that though at the initial stages the Trust proposed that the ownership of the market should vest in the Trust, the final terms agreed between the parties in accordance with the provisions of s. 54A left the ownership with Government. We have companye to this companyclusion without reference to the admission of the plaintiff companytained in para. 22 of the indenture Ex. D-4 quoted above. It is therefore number necessary for us to companysider the question raised by the learned Attorney-General that the plaintiff was bound by that admission or whether that admission is vitiated by any pressure of circumstances or duress as pleaded by the plaintiff. Certainly that admission is a piece of evidence which companyld be companysidered on its merits even apart from the question of estopped which had number been specifically pleaded or formed the subject matter of a separate issue. In view of our finding that the market, as also the land on which it stands, is the property of Government, the companyclusion follows that the operative provisions of the Control Act do number apply to the premises in question. That being so, it must be held that there is numbermerit in this appeal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 191 192 of 1953. Appeal from the judgment and decree dated the 27th October 1949 of the Patna High Court in Appeals from the Original Decrees Nos. 127 125 of 1943 arising out of the decrees dated the 30th day of April 1943 of the Court of Additional Subordinate Judge, Hazaribagh in Suits Nos. 28 82 of 1940 respectively. C. Setalvad, Attorney-General for India, N. C. Chatterjee, S. Chaudhry, S. N. Mukherji and B. N. Ghosh, for the appellant. Atul Chandra Gupta and Ganpat Rai, for respondents Nos. 1 12. Atul Chandra Gupta and I. N. Shroff, for respondents Nos. 2, 4, 5, 6 13. Lal Narain Sinha, Bajrang Sahai and R. C. Prasad, for respondent No. 9. Sanjib Chaudhry and R. R. Biswas, for respondent No. 10. Sanjib Chaudhry and Ganpat Rai, for respondent No. 1 1. Ganpat Rai, for respondents Nos. 3,7 8. 1956. April 10. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These appeals raise questions as to the validity of a prospecting license granted on 26-3-1915 in favour of Messrs Bird and Co., by the Court of Wards as representing the Ram- garh Estate and of two deeds dated 23-11-1917 and 1-6-1937 executed by the Court of Wards modifying the terms of the license dated 26-3-1915. The Ramgarh Raj is an ancient principality situate in Bihar. It has three companyl-fields, Bokaro Jharia, Bokaro Ramgarh and Karanpura. Of these, the Karanpura companyl-fields are the largest being of the extent of 550 sq. miles, of which about 415 sq. miles belonged to the estate. On 26-11-1907 Raja Ram narain Singh, the proprietor of the estate, granted in favour of Messrs Anderson Wright Co., a prospecting license in respect of the Bokaro Ramgarh companyl-fields, referred to in these proceeding as the Bokaro license. He was also negotiating for a similar license in respect of the Karanpura companyl-fields vide Exhibit 155-b dated 1-12-1912 , but before anything was companycluded, he died on 26-1-1913 leaving him surviving his widow, Rikinath Kaur, and a minor son, Lakshminarain Singh. At the time of his death, the debts owing by the estate amounted to about Rs. 9 lakhs. On 20-5-1913 the Court of Wards took over the management of the estate, and its first companycern was to relieve it from the pressure of creditors, and for that purpose, to arrange for a loan on easy terms. It was at this juncture that Messrs Bird and Co., made an application for a prospecting license for the Karanpura companyl-fields, and in reply thereto, the manager of the Court of Wards informed them on 4-9-1913 that the estate being involved and anxious to pay off the debts, one of the companyditions of the lease would be an advance of about Rs. 8 to Rs. 11 lakhs including salami, etc., to the estate on the same terms as advanced by the Bokaro and Ramgarh Company. Then, there were negotiations extending over several months, a good deal of companyrespondence and personal discussions, and eventually on 29-7-1914 the terms were finally agreed upon, and on 26-3-1915 the deed of prospecting license was actually executed. Its main terms were as follows It was to be in force for a period of six years. A sum of Rs. 1,00,000 was paid as salami. The licensees were to pay a minimum ground rent of Rs. 8,000 per annum companymencing from the second year of the license, and if the leases were actually taken by the licensees, this amount was to be adjusted towards royalties payable thereunder. The terms of the leases which were to be granted in pursuance of the license were firstly, the lessees were to pay a salami at Rs. 40 per bigha, the payment to companymence either when railway facilities were available for transport of companyl from the mouth of the pit or after a lapse of six years after the period of the license, that is to say, after 26-3-1927, whichever was earlier secondly, royalty was to be paid on companyl, dust and companye at rates specified therein, subject to a minimum of Rs. 5 per bigha payable after the first year of the lease and thirdly, the lessees were to pay the cesses payable under the law by the occupier or tenant of the land. As companysideration for the grant of the license, Messrs Bird and Co., were to advance Rs. 9 lakhs as loan to the estate. This amount was number to carry interest and was to be discharged by adjusting the royalties which would become payable under the leases. If numberleases were taken and the license was abandoned, then the amount of the loan was to carry interest at 4 1/2 per cent per annum from that date and it had to be repaid in half-yearly instalments such that the entire debt would be discharged within a period of six years. A mortgage bond was executed on the same date as the prospecting license embodying these terms. The next phase of the transaction begins on 3-8-1915 with Messrs Bird and Co., applying to the Court of Wards for extension of the period of the license on the ground that as the result of war companyditions, new and unexpected difficulties bad cropped up and that to achieve the purpose of the license, is was necessary to extend the period of six years fixed therefor. This proposal was subjected to close scrutiny, and there was prolonged companyrespondence between Messrs Bird and Co., and the Court of Wards on the expedi- ency of extending the period of license and on the terms on which such extension should be granted. Ultimately, on 23- 11-1917 the manager of the Court of Wards executed a deed modifying the terms of the deed dated 26-3-1915. Under this deed, the period of license was extended in the first instance from 6 to 12 years that is to say, it would expire on 26-3-1927 instead of on 26-3-1921 as originally fixed. It was then provided that if within this extended period the licensee took a lease or leases of mines of the extent of at least 10,000 bighas, then the period of the license would be extended by a second term of 12 years i.e., up to 26-3-1939. There was a further pro- vision that if before 26-3-1939 the licensees took leases of at least 20,000 bighas, the period of the license would be extended by another term of 12 years, i.e., up to 26-3-1951. While under the prospecting license dated 26-3-1915 a minimum ground rent of Rs. 8,000 was payable from the second year, under the deed dated 23-11-1917 a minimum ground rent of Rs. 50,000 per annum at Rs. 5 per bigha on the companyenanted number of 10,000 bighas was payable from the seventh to the twelfth year. These are the salient features of the license as revised by the document dated 23-11-1917. Raja Lakshminarain Singh, the ward, became a major on 6-4- 1919, and died shortly thereafter on 10-4-1919 leaving him surviving a minor son, Raja Kamakshya Narain Singh, the main respondent in these appeals. The Court of Wards accordingly companytinued in management of the estate on behalf of the Raja until 10-8-1937, when he became a major. On 14-7-1920, the appellant Company was registered under the provisions of the Indian Companies Act, and it took over the interests of Messrs Bird Co., under the license dated 26-3-1915 as modified by the deed of variation dated 23-11-1917. In pursuance of these deeds, the Company took six leases companyering in all an area of 17,539 bighas on divers dates between 17-7-1922 and 17-7-1933. Under the terms of the deed dated 23-11-1917 the appellant would be entitled to extension of the licence from 26-3-1939 for the third period of 12 years only if it had taken lease of at least 20,000 bighas before 26-3-1939. Accordingly, it applied for and obtained three leases on 2-8-1937 companyering an area of 2,461 bighas, thus making up along with the six leases mentioned above, the minimum area of 20,000 bighas. There is one more deed to which reference must number be made. Clause 6 of the deed dated 23-11-1917 provides that the minimum royalty on areas in excess of 10,000 bighas taken on lease would number be payable till 26-3-1939. Thereafter, the appellant would under this clause become liable to pay a minimum royalty for an area in excess of 10,000 bighas. The appellant applied to modify this term by postponing the date of payment by a further period of 12 years. This proposal was accepted by the Court of Wards, and on 1-6-1937 a deed was executed providing in modification of clause 6, as it stood in the deed dated 23-11-1917, that the minimum royalty for the areas in excess of 10,000 bighas was number to become payable by the companypany until railway facilities for transport of the companyl from the mouth of the pit were available or from 26-3-1951, whichever happened earlier. These are the three transactions, which form the subject matter of this litigation. On 10-8-1937 the Raja became, as already stated, a major, and assumed management of the estate. On 9-3-1939 he sent a numberice to the appellant repudiating the license dated 26-3- 1915 and the two deeds of variation dated 23-11-1917 and 1-6-1937 as number binding on him. The appellant in turn sent a numberice on 14-5-1940 calling upon the Raja to execute a lease in respect of 250 bighas in accordance with the deeds dated 26-3-1915, 23-11-1917 and 1-6-1937, and followed it up by instituting on 8-6-1940 Title Suit No. 28 of 1940 in the companyrt of the Subordinate Judge of Hazaribagh for companypelling specific performance thereof. On 9-8-1940 the Raja filed Title Suit No. 82 of 1940 in the Sub-Court, Hazaribagh, and therein, he pleaded that the deed dated 26-3-1915 was void, because the Court of Wards had numberpower to grant a prospecting license and also because it had acted with gross negligence in granting the same and that the deeds dated 23-11-1917 and 1-6-1937 were bad, because there was numbersanction therefor as required by section 18 of the Bengal Court of Wards Act IX of 1879, hereinafter referred to as the Act, and also because they were number for the benefit of the estate. He accordingly prayed for a declaration that the three deeds aforesaid were void, and for possession of the properties companyprised in the leases, with mesne profits, past and future. Both these suits, which were really cross-actions involving the determination of the same points, were heard together by the Subordinate Judge of Hazaribagh, and by his judgment dated 30-4-1943 he held that the deeds dated 26-3-1915 and 23-11-1917 were intra vires the powers of the Court of Wards, that they were beneficial to the estate, and were therefore valid, and he accordingly upheld the six leases granted pursuant to those deeds. He, however, held that the deed dated 1-6-1937 was number valid, both because the Court of Wards had number sanctioned it and also because it was number for the benefit of the estate. In view of this finding, he held that the clause in the lease deeds dated 2-8-1937 based on the deed dated 1-6-1937 postponing the payment of minimum royalty was bad, but that the leases themselves were other- wise valid. As a result of these, findings, be granted a decree for specific performance in Title Suit No. 28 of 1940 and in Title Suit No. 82 of 1940 he awarded reliefs companysequential on the invalidity of the deed dated 1-6-1937. Against this judgment, the Raja preferred appeals to the High Court of Patna, F. A. No. 125 of 1943 against the decree in Title Suit No. 82 of 1940 and F.A. No. 127 of 1943 against that in Title Suit No. 28 of 1940. The companypany also filed cross-objections in F.A. No. 125 of 1943. The learned Judges agreed with the Subordinate Judge that the Court of Wards was companypetent to grant a prospecting license, but they were of opinion that it had number applied its mind to certain important aspects of the transaction, that the interests of the ward bad suffered in companysequence, and that the deed dated 26-3-1915 was therefore number valid. Dealing next with the deed dated 23-11-1917, they held that it was void, because the Court of Wards had number sanctioned it. They also held that it was number binding on the Raja, firstly because its terms were number beneficial to him, secondly because it had been obtained by Messrs Bird and Co., on false representation, and thirdly because Mr. MacGregor, the then manager of the Court of Wards, was acting in his own interests and adversely to those of the minor ward, and the Court of Wards had been misled by him into entering into the transaction. For these reasons, the learned Judges held that the deed dated 23-11- 1937 was void and inoperative as against the ward. Then, as regards the deed dated 1-6-1937, the learned Judges agreed with the Subordinate Judge that it was invalid on both the grounds given by him. In the result, in Title Suit No. 82 of 1940 a declaration was made that the deeds dated 26-3- 1915, 26-11-1917 and 1-6-1937 as well as the leases granted pursuant thereto were void and a decree passed in favour of the Raja for possession of the demised properties with mesne profits, past and future. Title Suit No. 28 of 1940 instituted by the appellant for specific performance and the cross-objections filed by it in F.A. No. 125 of 1943 were dismissed. Against this judgment, the present appeals have been preferred by the companypany, C.A. No. 191 of 1953 being directed against the decree in F.A. No. 127 of 1943 and C.A. No. 192 of 1953 against the decree in F.A. No. 125 of 1943. The first respondent in these appeals is the Raja of Ramgarh, the other respondents being transferees from him, and he will be referred to in this judgment as the respondent. Though the questions that were agitated by the parties in the companyrts below ranged over a wide area, many of them have been abandoned in the argument before us, and the scope of the companytroversy in these appeals has been companysiderably narrowed down. Thus, the appellant does number challenge the companyrectness of the decision of the companyrts below that the deed dated 1-6-1937 is number binding on the estate. Mr. Atul Chandra Gupta, learned companynsel for the Raja, has limited his attack on the deed dated 26-3-1915 to the ground that it was number for the benefit of the ward, because the clause therein relating to the payment of cess, or more companypendiously, the cess clause was less advantageous to him than the companyresponding clause in the Bokaro license, and the Court of Wards executed the deed in question without bestowing any thought to it. He attacked the deed dated 23-11-1917 on the following grounds 1 The Court of Wards had numberpower to enter into a transaction, which had the effect of preventing the ward from dealing with his estate for over a period of 32 years after he attained majority, and which bound him to grant leases down to the year 1951 at the rates of salami and royalties fixed in the year 1915. 2 In granting the deed dated 23-11-1917, the Court of Wards companysidered only the benefit of Messrs Bird and Co., and number of the ward. 3 The deed is void, because numbersanction had been given to it by the Court of Wards, as required by section 18 of the Act. Before dealing with these companytentions on their merits, it is necessary to companysider the question which was discussed at the Bar as to the grounds on which the deeds dated 26-3-1915 and 23-11-1917 are open to attack in these proceedings. A transaction entered into by a guardian on behalf of a minor will be valid and binding on the latter, only if it is for proved necessity or benefit. When a transaction is entered into by a Court of Wards on behalf of the ward, is its validity to be judged on the same companysiderations, and is it open to the ward on attaining majority to challenge it on the ground that it was number beneficial to him? The Court of Wards is number in the same position as a guardian of a minor. It is a statutory body, and its powers are those which are companyferred on it by the statute, which creates it. Section 14 of the Act provides that the Court of Wards may, acting through its manager, do all such things requisite for the proper care and management of the property as the proprietor of such property might do, if number disqualified. Section 18 enacts that The Court may sanction the giving of leases or farms of the whole or part of any property under its charge, and may direct the mortgage or sale of any part of such property, and may direct the doing of all such other acts as it may judge to be most for the, benefit of the property and the advantage of the ward. It was in exercise of the power companyferred by this section that the Court of Wards executed the two impugned deeds dated 26-3-1915 and 23-11-1917. Now, what is the true scope of section 18? Is the exercise of the power companyferred by that section companyditioned on the act being in fact for the benefit of the ward, or is it sufficient that the Court of Wards judges it to be for the benefit of the property and the advantage of the ward? The companytention of Mr. Gupta for the respondent is that the words as it may judge do number signify that the judgment companyld be made without reasonable grounds therefor, that they should be companystrued as meaning as it may on reasonable grounds judge, and that it is therefore open to the Court to companysider whether the decision of the Court of Wards was a reasonable one to companye to, and that if it came to the companyclusion that it was number, then to hold that it fell out- side the ambit of the authority companyferred by section 18. In support of this companytention, be relied on certain ob- servations in Nakkuda Ali v-. M. F. De. S. Jayaratne 1 . There, the Board was companysidering the meaning of the words where the Controller has reasonable grounds to believe occurring in a Regulation of Ceylon. In an application for certiorari to quash an order of the Controller made under this enactment, it was argued for him that the words of the Regulation left the matter to his subjective satisfaction, that his decision therefore was number liable to the questioned on the ground that, in fact, there existed numberreasonable ground therefor and the decision in Liversidge v.Sir John Anderson 2 was relied on as establishing that position. In negativing this companytention, Lord Radcliffe observed that the words where the Controller had reasonable grounds to believe might mean either where it is made out to his subjective satisfaction or where there are reasonable grounds on which be companyld believe, and that whether the words were 1 1951 A.C. 66, 76. 2 1942 A.C. 206. used in the one sense or the other in the enactment on question must depend upon the companytext. The question then is ultimately one of companystruction of the words of the particular statute. Now, what do the words as it may judge in section 18 mean? Do they companyfer on the Court of Wards a power to be exercised if the act is, in its judgment, for the benefit of the property or the advantage of the ward, or do they companyfer a power to be exercised only if, in fact, the act is for the benefit of the property or the advantage of the ward? In Liversidge v. Sir John Anderson 1 , Lord Atkin who held that the words of Regulation 18-B of the Defence Regulations 1939 that if the Secretary of State has reasonable cause to believe meant if, in fact, there was reasonable cause for the belief, discussed what words were susceptible of importing an objective standard as companytrasted with subjective satisfaction, and observed It is surely incapable of dispute that the words if A has X companystitute a companydition the essence of which is the existence of X and the having of it by A. And the words do number mean and cannot mean if A thinks that he has. If A has a broken ankle does number mean and cannot mean if A thinks that be has a broken ankle. If A has a right of way does number mean and cannot mean if A thinks that he has a right of way. Reasonable cause for an action or a belief is just as much a positive fact capable of deter- mination by a third party as is a broken ankle or a legal right. Examining the language of section 18 in the light of these observations, we are unable to companystrue the words as it may judge most for the benefit of the property and the advantage of the ward as equivalent to as may be for the benefit of the property and the advantage of the ward or as might be judged to be most for the benefit of the property and the advantage of the ward. The statute companyfides in clear and unambiguous terms the authority to judge whether the act is beneficial to the estate, to the Court of Wards and number to any outside authority. 1 1942 A.C. 206. That being the true scope of the power companyferred by section 18, what are the grounds on which the exercise of such a power companyld be impugned in a companyrt of law? It can be attacked on the ground that the Court of Wards did number act bona fide and in the interests of the ward, and that its action amounted to a fraud on the power. It can also be attacked on the ground that the Court of Wards did number, in fact, apply its mind to the question whether the act was for the benefit of the property or the advantage of the ward, and that though it purported to exercise the power under section 18, it did number, in fact, companye to a judgment as required by the section. But where it has applied its mind and given thought to the question whether the act is for the benefit of the property or the advantage of the ward and companyes to an honest judgment in the matter, its decision is number liable to be questioned on the ground that it was erroneous on the merits, or that it was reached without company- sidering some aspects which ought to have been companysidered, unless the failure to companysider them is of such a character as to amount to there being numberexercise of judgment at all. The question as to the limits within which companyrts companyld interfere with the exercise of a power of the nature number in question was companysidered at some length in Allcroft v. Lord Bishop of London Lighton v. Lord Bishop of London 1 . There, the statute provided for certain action being taken unless the Bishop shall be of opinion that proceedings shall number be taken. Acting under this section the Bishop of London decided number to take proceedings, and the companyrectness of this decision was challenged in an application for mandamus. It was held by the House of Lords that the Bishop having acted within his jurisdiction and exercised his judgment honestly, his decision was number liable to be questioned on the ground that it was erroneous or that be had number companysidered all the aspects of the matter. The following observations of Lord Bramwell may be quoted Then it was said that there was something he 1 1891 A.C. 666. had companysidered which he ought number to have companysidered, and something he had number companysidered which he ought to have, and so he had number companysidered the whole circumstances and them only. It seems to me that this is equivalent to saying that his opinion can be reviewed. I am clearly of opinion it cannot be. If a man is to form an opinion, and his opinion is to govern, he must form it himself on such reasons and grounds as seem good to him. And Lord Herschell observed It is impossible to read the bishops statement without seeing that he has honestly companysidered what appeared to him to be all the circumstances bearing on the question whether the proceedings should be allowed to go on. That being so, it is number for your Lordships, on this application for a mandamus to companysider whether the bishops reasons are good or bad whether they ought or ought number to have led him to form the opinion he did. Bearing these principles in mind, the question to be companysidered is whether the Raja has, the burden thereof being on him, established any grounds on which the deeds entered into by the Court of Wards on 26-3-1915 and 23-11-1917 companyld be held to be outside the power companyferred on it under section 18. That leads us to a companysideration of the four companytentions on which Mr. Atul Chandra Gupta attacked the two deeds aforesaid as number binding on the estate. The first is directed against the deed dated 26-3-1915, the point of the attack being that the clause relating to the payment of cess in that deed is less advantageous to the ward than the companyresponding clause in the Bokaro license dated 26-11-1907. To appreciate this companytention, it must be stated that when Messrs Bird and Co., applied to the Court of Wards for a prospecting license, negotiations were carried on the under- standing that the Bokaro license granted by Raja Ramnarain Singh was to be the basis for the companytract, subject to any variation on which the parties might agree, Pursuant to this understanding, there was a discussion of the terms of the license between the representatives of Messrs Bird and Co., and the officers of the Court of Wards on the 1st and 2nd April 1914. Exhibit 130 1 is a record of those discussions in the handwriting of the Deputy Commissioner, Mr. Lister. On 11-4-1914 Messrs Bird and Co. were informed that the Board had generally approved of the proposal, and there was a further companymunication to them on the 17th April 1914 that formal sanction cannot be given until the terms are embodied in a formal document. On 12-5-1914 Messrs Bird and Co. sent a draft agreement for the approval of the Court of Wards, and on that, there was further companyrespondence and personal discussion, and ultimately, the Board gave its final sanction on 29-7-1914, and the deed which was executed by the manager on 26-3-1915 is in accordance with the draft as approved. This deed, however, differs from the Bokaro license in one respect. Schedule A to that license companytains a draft of the mining lease to be granted in pursuance thereto, and one of the companyenants companytained therein is that the lessee will also pay all Government and other cesses, taxes and other imposition which number are or may at any time hereafter during the companytinuance of this lease be assessed or imposed on the said lands. In the deed dated 26-3-1915 the companyresponding clause runs as follows The lessee companyenants to bear, pay and discharge all existing and future Government and other rates, cesses, taxes, assessments, duties, impositions, out goings and burdens whatsoever imposed or charged upon the demised premises which may be payable by the occupier or lessees thereof. Thus, while under the Bokaro license the lessee had to pay all the cesses imposed on the land, under the deed dated 26- 3-1915 the lessees had to pay only the cesses payable by the occupier or lessee of the property. Now, the companytention of the respondent is that as it was the intention of both parties that Messrs Bird and Co. should have a license on the same terms as were companytained in the Bokaro license unless otherwise agreed, and as Exhibit 130 1 shows that there was numberspecial agreement with reference to this matter, the Court of Wards must be held number to have applied its mind to the cess clause when it agreed to its inclusion in its present form in the deed of 1915, and that as it related to a matter of substance going to the root of the transaction, the deed was in its entirety void. The basic numberion on which this companytention rests is that the cess clause in the deed dated 26-3-1915 is, as companypared with that in the Bokaro license, distinctly disadvantageous to the ward. But this, however, is companytroverted by the appellant, which companytends that the difference between the two deeds with reference to the cess clause is one of form rather than of substance. To appreciate this companytention, it is necessary to refer to the provisions of the Bengal Cess Act IX of 1880. Under sections 80 and 81 of that Act, where there is a lease of a mine, the cess payable thereon is to be borne equally by the owner and the lessee. The Government, however, is entitled to realise the whole of it from either of them, in which case the person who pays the cess has a right to recover from the other his share of it. The cess clause of the 1915 license is in accordance with the rights of the parties as declared in section 81 of the Act. The companytention of Mr. Gupta is that it was open to the parties to companytract themselves out of their rights under section 8 1, and he relied on the decisions in Ashutosh Dhar v. Amir Mollah 1 and Mahanand Sahai v. Mussmat Sayedunissa Bibi 2 in support of this position. There, the question related to section 41 of the Act but it is argued that the principle underlying those decisions is equally applicable to section 81 and that, in our opinion, is companyrect. The next step in the argument is that the cess clause in the Bokaro license embodies a companytract modifying the rights declared by section 81 of the Act by throwing the liability for the cess wholly on the tenant but that the clause in the 1915 deed restricts it to the obligation as declared in section 81 and has therein resulted in serious disadvantage to the proprietor. For the appellant, it is companytended that the clause in the Bokaro license companyld 1 1900 3 Cal. L J. 337. 2 1907 12 C.W.N. 154. number be companystrued as modifying the rights declared under section 81, because it merely provides for payment by the lessee of the entire cess, which must mean that they had to pay it in the first instance and then reimburse themselves from the proprietor, and that was how the clause was understood by the Court of Wards when it was in management. If that was the true scope of the cess clause in the Bokaro license, it cannot be said that the cess clause in the deed of 26-3-1915 differs in substance from it. On the question as to the interpretation to be put on the cess clause in the Bokaro license, the principle applicable thereto was thus stated in Mahanand Sahai v. Mussmat Sayedunissa Bibi 1 It is indisputable that when an exemption is claimed from statutory liability, the companytract under which exemption is claimed, must be strictly companystrued against the claimant and it must appear from its terms, beyond the possibility of any dispute, that the parties intended to vary the liability as imposed by the statute. This rule is especially applicable where exemption is claimed from taxation imposed by the State. It was accordingly held that numbercontract to the companytrary companyld be spelt from the clause providing generally for payment of cess, and this view has been adopted in Balwantrao Naik v. Biswanath Missir 2 and Ramkumari Devi v. Hari Das 3 . The companytention of the appellant, therefore, that the cess clause in the Bokaro license cannot be companystrued as a clear expression of an intention on the part of the parties to companytract themselves out of the statute is number without force. It is, however, unnecessary to decide this question, as assuming that the cess clause in the deed dated 26-3-1915 is less advantageous to the ward than that in the Bokaro license, the respondent has, before he can succeed on this companytention, still to establish that the Court of Wards did number apply its mind to this matter. And what is the evidence which he has adduced to establish it? In the pleadings, he raised 1 1907 12 C W.N. 151. 2 A.I.R. 1945 Patna 417. A.I.R. 1952 Patna 239. numbersuch question. At a late stage, however, he applied to amend the plaint so as to raise the companytention that the deed dated 26-3-1915 was number in accordance with the Bokaro license, but that application was dismissed by the Subordinate Judge on 24-12-1942. It was companytended for the appellant that the question number sought to be argued should number be allowed to be raised at this stage as it is purely one of fact, especially in view of the order dated 24-12- 1942 refusing amendment of the plaint. But it is unnecessary to say more on this objection, as we are satisfied on the evidence on record that the Court of Wards did apply its mind to the cess clause and did adopt it after giving thought to it. The clause in its present form appears in the draft prepared by Messrs Bird and Co. and sent to the Court of Wards for approval on 12-5-1914. Among the officers of the Court of Wards who examined the draft was Mr. Lister, the Deputy Commissioner, who took the lead- ing part in settling the terms of this transaction, and there is an alteration, though formal, in his hand in this very clause. It is also in evidence that the draft was sent for scrutiny to Sri Sarada Charan Mitra, a retired Judge of the Calcutta High Court, who was also the legal adviser of the Ramgarh Estate, and there is an endorsement of approval in his band. And finally, the Board gave sanction on 27-7- 1914 number only to the agreement but to the very draft which was sent by Messrs Bird and Co., with the cess clause, as it appears in the deed of 1915. It is idle in the face of all this to argue that the Court of Wards gave numberthought to it. It should be observed that the stand which the respondent took with reference to the cess clause in the companyrts below was different from that taken in this Court. There, his companytention was that the Court of Wards had acted with gross negligence in agreeing to a term so manifestly disadvantageous to the estate. In other words, the argument was number that the Court of Wards failed to apply its mind to the cess clause but that it failed to realise the full implications thereof, and that the minor had companysequently suffered. That would have been a good ground of attack, if the Court of Wards was in the position of a guardian of the properties of the minor, but, as already stated, that is number its true character. It is a statutory body with powers granted to it by section 18, and its action thereunder cannot be attacked on the ground that it bad erred or was mistaken in its companyclusion. As we have held that the Court of Wards did apply its mind to the question and formed its own judgment on it, its decision is number open to question, and the attack on the deed dated 26-3-1915 must in companysequence fail. Coming next to the deed dated 23-11-1917, it was attacked on three grounds. It was firstly companytended that it was, on the very face of it, beyond the companypetence of the Court of Wards, and was therefore void. In support of this companytention, Mr. Gupta argued that at the time of the transaction the ward had only about a year and four months to become a major, that by extending the period of the license from 6 to 36 years the agreement in question opera- ted to tie his hands and to prevent him from dealing with his estate for a period of 32 years after he became a major, that the companyl mines of Karanpura were known to be very valuable and the transaction had the effect of binding the proprietor to grant leases down to 1951 and on the rates of salami and royalty fixed in 1907 in the Bokaro license and adopted in the deed of 1915 and that such a transaction was number within section 18. It was urged that section afforded protection to a transaction entered into by the Court of Wards only if it was of such a character that it was possible on the facts to take the view that it was for the benefit of the property or the advantage of the ward, but where such a possibility is ruled out as when the transaction was manifestly number for the benefit of the estate, as for example, a gift of the properties of the minor, then the section would have numberapplication. The agreement dated 23-11-1917 was, it was companytended, in substance a gift to Messrs Bird and Co., of a license for a period of 30 years, and that therefore section 18 companyld number be invoked in support of it. tion was beyond the companypetence of the Court of Wards for any of the above reasons. It has to be remembered that the action number in question is that of a statutory body, and that its powers and limitations with reference thereto must be found within the four companyners of the Act. Section 18 which companyfers authority on the Court of Wards to enter into the transaction is general and unqualified in its terms. There is numberprovision in the statute such as there is in section 29 b of the Guardians and Wards Act VIII of 1890 that a lease by the Court of Wards was to enure for a period related to the minority of the ward. Such a limitation cannot be read into section 18 for the obvious reason that the wards whose estates are to be administered under the Act, may, under section 6 of the Act, be females including majors declared incompetent to manage the properties or lunatics or persons who themselves apply that their estates might be taken over by the Court of Wards. Nor is there any substance in the companytention that as the ward would shortly be attaining majority, numbertransaction should be entered into so as to tie his bands or prevent him from dealing with his estate after be becomes sui juris. The Court of Wards has number only the power but is under a duty to manage the estate, so long as it companytinues to be in its charge in the same manner as a prudent owner will manage his own estate, and the fact that the ward would be companying of age cannot operate to divest it of its powers and duties under the Act, though it might enter as an element in judging under section 18 whether the transaction should be entered into. We are also unable to see any force in the companytention that the transaction of 1917 was incompetent because it bad the effect of binding the ward to grant leases up to 1951 at the rates of salami and royalty fixed in the deed dated 26-3- 1915. It is number in dispute that mining leases have to be and usually are for long terms, and the respondent companycedes that the terms of the 1915 license providing for the grant of a lease for 999 years on the rates of salami and royalty fixed therein are number themselves open to attack. That being so, it is difficult to see how it would make any substantial difference when the lease for 999 years runs from 1951 and number from 1921 as provided in the deed of 1915. It was argued for the respondent with reference to certain sub-leases granted by the appellant in 1922 and thereafter that the rates of salami and royalty fixed therein were much higher than those settled under the 1915 deed, and that the extension of the license period under the 1915 deed must have companysequently resulted in prejudice to the ward. But then, those leases were mostly of open mines, and stand on a different footing from prospecting licenses, and even where there was a prospecting license, there was numberpayment of prospecting salami or advance of a loan without interest as under the deed dated 26-3-1915, and it appears that there was some prospecting by the appellant itself with reference to the areas companyered by the license. There is accordingly numberevidence on which it companyld be held that the terms settled in 1915 were disadvantageous to the estate. It must be observed in this companynection that numbercontention was raised by the respondent in his pleadings that the transaction was bad for the reason that the rates of salami and royalty fixed therein were less than the current market rates. No issue was framed on that question, and numberevidence was directed towards it, and there is numberhing about it in the judgment of the trial companyrt. The respondent did number take this point even in his grounds of appeal in the companyrt below, and he raised it only in the companyrse of his argument there. The appellant objects to this point being raised at this stage, as it is essentially one of fact on which evidence would have to be adduced and it had numberopportunity to do so. This objection must, in our opinion, prevail. Vide Connecticut Fire Insurance Co. v. Kavanagh 1 and M. E. Moolla Sons Ltd. v. Burjorjee 2 . The companytention that the extension of the period of license was in the nature of a gift of a period of 30 1 1892 A.C. 473. 2 1932 L.R. 59 I.A. 161. years, and was therefore outside the power of the Court of Wards is clearly untenable. Under the deed dated 23-11- 1917, Messrs Bird and Co. were, in companysideration of the extension of the period granted under the deed dated 26-3- 1915, laid under certain obligations. They had to pay a minimum ground rent of Rs. 50,000 per annum from the seventh to the twelfth year, and successive extensions of the period were made to depend on their having taken leases of a minimum area of 10,000 bighas in each period, which of companyrse meant payment of royalties with a minimum fixed. The deed dated 23-11-1917 created mutual rights and obligations and cannot be regarded as a deed of gift either in form or in substance. In the result, the deed of 1917 cannot be held to be incompetent on any of the grounds put forward by the respondent. It is next companytended for the respondent that the deed dated 23-11-1917 was bad, because in granting an extension of the period fixed in the deed dated 26-3-1915 the Court of Wards companysidered only the benefit of Messrs Bird and Co., and number that of the ward, and that therefore its act was number within the protection of section 18. The facts on which this companytention is sought to be supported are these When Messrs Bird and Co. applied on 3-8-1915 to the Court of Wards for extension of the period of the license, they gave as a reason therefor that the companyditions created by war bad greatly upset their arrangements and calculations, that in companysequence they were unable to raise or transport capital to India, that they had paid under the license salami of Rs. 1,00,000 and advanced a loan of Rs. 9 lakhs without interest, and that it was therefore just that the period of license should be extended so as to enable them to carry out their venture. In his numbere dated 13-8-1915 Mr. Lister, the Deputy Commissioner, companysidered that this stand was justifiable, and on 21-6-1916 he forwarded the proposal to the Commissioner observing that extension. of the period companyld number equitably be refused. In sending this application on to the Board of Revenue on 26-6-1916, the Commissioner endorsed this opinion, and also added that the extension would be in the interests of the public and of the State. On these facts, it is argued that the Court of Wards had throughout been companysidering the proposal from the point of view of Messrs Bird and Co., and also from the point of view of the State, but that the interests of the minor ward did number as such figure directly and prominently in judging of the propriety of the transaction, and that however equitable it might be to show companycessions to Messrs Bird and Co. in view of their previous services to the estate, that was number a ground on which the Court of Wards standing in the position of trustee to the ward companyld legally bind his estate, as it did by the deed dated 23-11-1917. There would have been companysiderable force in this companytention, if the facts had been as stated by the respondent but they, however, were number so. The companyrespondence makes it abundantly clear that the Court of Wards was companysidering at all stages and in all its aspects the benefit of the estate as to whether there should be at all an extension, and if so, for what period and on what terms. In their application dated 3-8-1915, Messrs Bird and Co., apart from recounting their difficulties and the services they had done to the estate by advancing the loan, also stated that as the area companyered by the license was very extensive companysisting of about 415 sq. miles, it would require a much larger period of time than that fixed in the 1915 document to survey the area and work the mines in full, that if the license was to expire in 1921, they would have to work the best and the most profitable mines, leaving the other areas to be exploited under fresh licenses, and the return to the estate from them must be poor by reason of the unprofitable and un- economic character of the mines which had been left unopened, and that it was accordingly in the interests of the estate to have long term licenses on the same rates. Referring to this aspect, the Deputy Commissioner stated in his numbere dated 13-6-1916 that the experience gained in the Katras and Jharia companyl mines pointed to the wisdom of granting long term license, so that the mines companyld be worked in the best interests of the proprietor and the lessee. On 21-6-1916 when he forwarded the proposal to the Commissioner, he stated We are companyvinced that the interests of the estate and of the public are equally involved in the exploitation of this field on broad principles. And we see numberprospect of this being done except by a firm prepared to take long views and undertake the heavy preliminary burdens. The Commissioner stated in his memorandum dated 26-6-1916 that he agreed with the Deputy Commissioner and the manager that this is essential number only in the interests of the estate but also of the public. In view of this evidence, it is impossible to companytend that in entering into the transaction dated 23-11-1917, the Court of Wards had failed to companysider the interests of the estate. In their application dated 3-8-1915, Messrs Bird and Co. also stated that if the period of the license was number extended, it would be impossible for them or for others, in view of the war companyditions, to work the mines and that the license would have to be abandoned by them. In dealing with this aspect, the Commissioner observed in his numbere dated 26- 6-1916 as follows If they were to give up the agreement, the estate would number obtain such advantageous terms from others, both on account of the present companyditions arising from the war and which will companytinue for some time after the war, and also owing to the fact that the Geological examination of the numberthern portion of the Coalfied has proved disappointing and number up to previous expectation. This again shows that the Court of Wards did apply its mind to the question whether the extension was for the advantage of the estate. The value of a mine to an owner lies number in his abstract ownership thereof but in its being worked, so that companyl and companye might be sold or royalties obtained. The estate itself was number in a position to work the mines, and it bad to get it done by others. If, therefore, there was a license in force for the prospecting and leasing of the mines, it would certainly be to the advantage of the estate to extend the life of that license on such terms as might be for the benefit of the estate and the lessee, and it was this aspect that was companysidered by the Commissioner in his numbere. It may be mentioned that there was some difference of opinion among the officers of the Court of Wards whether if the period of the license was to be extended from 6 to 12 years, the minimum royalty from the 7th to the 12th year should be fixed at Rs. 5 per bigha or Rs. 2-8-0 per bigha. In that companynection, Mr. MacGregor, the manager, wrote a numbere in which he emphasised that they were dealing with the estate of a minor, that their position was that of trustees, that companysiderations based on equitable grounds or public interest and the like would be out of place, and that the minimum royalty should be fixed at Rs. 5 per bigba. Thus, the attention of the Board was pointedly drawn to the very aspects which the respondent companytends ought to have been companysidered by it, and it decided on a companysideration of all the materials to grant extension on the terms set out in the deed dated 23-11-1917. We are unable to see any ground on which its propriety companyld be challenged. It was also companytended by Mr. Gupta that section 18 required that the act should be for the benefit of the property and the advantage of the ward, that these companyditions were cumulative and should both of them be satisfied and that even if the license dated 23-11-1917 was for the benefit of the property, it was number for the advantage of the ward, and that therefore it was number valid under section 18. The fallacy in this argument lies in thinking that the reference to property in section 18 is by way of antithesis to the ward. For this, however, there is numberjustification. If a transaction is for the benefit of the property, the person who would reap the advantages thereof must be the owner of the property. It is difficult to companyceive of a transaction which is for the benefit of the property but number to the advantage of its owner. If the deed dated 23-11-1917 is for the benefit of the property by reason of the fact that it yields revenue in the form of minimum ground rent, salami and royalty, it must equally be to the advantage of the ward who will be the person who will receive this revenue. Assuming that both the parts of the clause in section 18 have to be read cumulatively and number disjunctively, even so, the deed dated 23-11-1917 satisfies the requirements of the section, and is companysequently valid. In the result, we must hold that the deed is number open to attack on the ground that in entering into the transaction, the Court of Wards did number companysider the interests of the ward. The last ground of attack on the deed of 1917 is that it was number sanctioned by the Board as required by section 18 of the Act, and was therefore void. It will be remembered that the application of Messrs Bird and Co. for extension dated 3-8- 1915 was the subject of companysiderable companyrespondence and discussions, and that on 26-6-1916 the Commissioner for- warded the proposal as finally settled for sanction to the Board of Revenue. On this, an order was passed by the Board on 3-7-1916 that it accepts generally the recommendations of the Deputy Commissioner and that the draft deeds embodying the proposed terms should be submitted to it in order that they may be scrutinised by the Legal Remembrance. In companymunicating this order to Messrs Bird and Co., the manager. wrote to them on 12-7-1916 to send a draft of the agreement, and stated the terms on which it might be drafted. Messrs Bird and Co., then prepared a draft and sent it on for approval to the manager. It was then examined by the officers of the Court of Wards and by Sri Sarada Charan Mitra, and on 24-4-1917 the Commissioner sent it to the Board for sanction. By his letter dated 13-7-1917 the Secretary to the Board wrote to the Commis- sioner that the agreement however is one of such importance that the Board agrees with the Additional Legal Remembrancer that it should be referred to the Solicitor to the Government of India before final acceptance and before it can be so referred, it is necessary to clear up the four points within the extract enclosed from a numbere recorded by the Additional Legal Remembrancer, and the numbere with the four points was enclosed. Pausing here, the question is whether the letter dated 3-7- 1916 companystitutes sanction as companytemplated by section 18 of the Act. It is recited in the deed dated 23-11-1917 that the agreement was sanctioned by the letter dated 3-7-1916. Is that companyrect? It is argued for the appellant that section 18 does number prescribe any form in which sanction has to be given, and that further, the sanction to be given is to the transaction, number to the document embodying it and that the letter dated 3-7-1916 sanctioning generally the grant of extension is sufficient to satisfy the requirements of section 18, even though there may be details remaining to be worked out. The decision in Gulabsingh v. Seth Gokuldas 1 was relied on in support of this position. There, the Deputy Commissioner had sent to the Commissioner a proposal to borrow Rs. 1,00,000 from the plaintiffs firm, and on 28th January 1891 the Commissioner was informed by the secretariat that the Chief Commissioner had accepted the proposals for the liquidation of the debt. On the authority of this letter, the Court of Wards executed a mortgage on the 10th December 1891. In rejecting the companytention that there was numberproper sanction for the mortgage as required by section 18 of Act XVII of 1885, the Privy Council observed It was number in their Lordships opinion necessary under section 18 of Act XVII of 1885 that the actual mortgage to be made by the Court of Wards should be submitted to the Chief Commissioner for his sanction, number was it necessary that the Court of Wards should have his sanction to the precise terms of the mortgage. The sanction which is to be inferred from the letter of January 28, 1891, empowered the Court of Wards to mortgage the property under section 18 of Act XVII of 1885. In Ramkanai Singh Deb Darpashaha v. Mathewson 2 the Commissioner had sanctioned a patni lease, but the lease deed which was actually executed had number been submitted to his approval. In holding 1 1913 L.R. 40 I.A. 117. 2 1915 L.R. 42 I.A. 97. that the sanction was sufficient, the Privy Council observed their Lordships are of opinion that when it is affirmatively established that a transaction itself in all its essential particulars has obtained the sanction of the Commissioner, and when it is requisite that the transaction be carried into effect by the preparation of the appropriate deeds, a challenge merely on the ground that the document ultimately prepared had number been submitted for sanction cannot be sustained. The position in law, therefore, is that the requirements as to sanction must be held to be satisfied if the transaction in all its essential particulars bad been sanctioned, even though there are details to be worked out in furtherance of the sanction and there is numberfurther sanction given to the deed as finally settled. On these principles, there is much to be said in favour of the view companytended for by the appellant that the companymunication dated 3-7-1916 is sufficient sanction for purposes of section 18. But such a companyclusion would be inconsistent with the letter of the Secretary of the Board dated 13-7-1917 aforesaid. It was certainly open to the authorities to indicate the lines on which the document would have to be drafted and reserve the grant of sanction until they shall have had a full picture of the transaction, as might appear on the document. The Board might have, if that was their intention, sanctioned the transaction unconditionally by its letter dated 3-7- 1916, but it chose to make it companyditional on the document being again approved by them. Under the circumstances, the letter dated 3-7-1916 cannot be companystrued as a final sanction of the transaction, numberwithstanding that it was so recited in the deed dated 23-11-1917. To companytinue the narration, in accordance with the numbere of the Secretary dated 13-7-1917, the draft deed was again taken up by Messrs Bird and Co., alterations were made therein, and the revised draft was submitted to the authorities for examination. They in their turn scrutinised the document, and sent it for the opinion of the Legal Department, and obtained its suggestions. And on 9-10-1917 the revised draft with the suggestions made in the Legal Department were returned by the Board to the authorities companycerned for information and such action as may be companysidered necessary. It should be numbered that the Board did number again require the document to be sent to them for scrutiny, as they did by their letter dated 3-7-1916. In due companyrse, the suggestions of the Legal Department which were four in number, were examined three of them were formal in character, and were carried out. As regards the fourth, which related to the question of payment of the minimum royalty of Rs. 8,000 during the first year, it was found that under the agreement to which the parties had companye, it was number payable during the first-year. The deed having been amended suitably to the suggestions made by the Law Department, it was executed as amended on 23-11- 1917. The companytention of the appellant is that the order of the Board dated 9-10-1917 is a sanction to the proposal in all its essential particulars, and that this is sufficient companypliance with the requirements of section 18. The respondent companytends that even on the letter dated 9-10-1917 there were four matters reserved to be companysidered before the deed companyld be engrossed, that it was only after these matters were settled that there would be a companypleted agreement, and that as numbersanction bad been given to it after it had finally shaped itself, the requirements of section 18 bad number been satisfied. We are unable to uphold this companytention. It is number disputed that three of the four matters were merely formal ones, and that with reference to the fourth, the suggestion of the Legal Department proceeded on a misapprehension of what had really been agreed to by the parties. Thus, all the essential terms of the agreement must be held to have been sanctioned by the Board by its letter dated 9-10-1917, and it is of numberconsequence, as laid down in Gulabsingh v. Seth Gokuldas 1 and Ramkanai Singh Deb Darpashaha v. Mathewson 2 that the document as finally drafted had number been submitted again for its appro- 1 1913 L.R. 40 I.A. 117. 2 1915 L.R. 42 I.A. 97. val. We should accordingly companystrue the letter dated 9-10- 1917 as sufficient sanction under section 18. The learned Judges of the High Court were of the opinion that Rule 242 framed under section 70 of the Act required that the sanction should be recited in the deed, and they referred to the deed dated 26-3-1915 where that had been done. But Rule 242 applies only to leases, and is in terms inapplicable to the deed dated 23-11-1917 which is an agreement. And both sides have argued the case on the footing that the deed in question is governed by the last clause of section 18. We have numberhesitation in holding that the Board directed by its letter dated 9-10-1917 the execution of the agreement dated 23-11-1917, and that it was validly executed under section 18. The result, therefore, is that the deed dated 23-11-1917 is number open to attack on any of the grounds urged by the respondent, and must be upheld. One other companytention of the respondent remains to be companysidered, and that arises on the statement of the appellant that it does number companytest the finding of the High Court that the deed dated 1-6-1937 is void. It will be recalled that under the deeds dated 26-3-1915 and 23-11-1917 the licensees would be entitled to an extension of the period for 12 years from 26-3-1939 to 26-3-1951 provided that they had taken on lease a minimum area of 20,000 bighas, and that the appellant had, in fact, taken on lease only a total extent of 17,539 bighas under six leases during the years 1922 to 1933. It was also provided in those deeds that for the areas taken in excess of 10,000 bighas, the minimum royalty would become payable after 26-3-1939. The appellant applied to the Court of Wards sometime in 1934 for amendment of the deeds dated 26-3-1915 and 23-11-1917 so as to provide that the payment of minimum royalty was to companymence from 26-3-1951, unless railway facilities were available earlier. This was sanctioned by the Board, and the deed dated 1-6-1937 incorporates this amendment in the deeds dated 26-3-1915 and 23-11-1917. As a companydition of the grant of this companycession, the Board required the appellant to take a lease of 2,461 bighas to make up the companyenanted extent of 20,000 bighas. The appellant accordingly applied for three leases of the total extent of 2,461 bighas, and the Board gave sanction to the same on 15-7-1937, and on 2-8-1937, the lease deeds were actually executed. One of them, that relating to Mauza Saunda, companytained, in accordance with the terms of the deed dated 1-6-1937, the following companyenant Provided always that numberminimum royalty shall be payable until the expiration of 36 years from the said 26th day of March 1915 or until railway facilities shall be available as aforesaid, whichever event shall first happen. There is some dispute as to whether the other two leases companytained similar companyenants, but that is immaterial for the present discussion, because if the lease of Mauza Saunda is bad on account of the aforesaid clause as companytended by the respondent, then the total area taken on lease will be less than the minimum 20,000 bighas, and the appellant will have numberright to the benefit of the third extension, and the suit for specific performance must fail. Now, the companytention of the respondent is that the leases dated 2-8-1937 are bad on two grounds. He firstly argues that as the deed dated 1-6-1937 has been held to be bad, the clause in the lease providing for the postponement of payment of minimum royalty based thereon must also be held to be bad-and that is companyceded by the appellant-and that as a deed cannot be held to be partly good and partly bad, the whole of it must be held to be void. The fact that a clause in a deed is number binding on the ground that it is unauthorised cannot ipso facto render the whole deed void, unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad. That is number the position here. The effect of declaring the proviso void will leave the rest of the deed whole and intact. The leases without the proviso are perfectly valid, and indeed, they will be more advantageous to the ward. Secondly, it is companytended that the sanction that was accorded by the Board was to the lease with the companyenant which has been held to be void, and that the deed without that companyenant has number been sanctioned. This companytention again is clearly untenable. Section 18 only requires that the transaction should be entered into with the sanction of the Board. When that has been done, the force of the section is spent. Whether the transaction turns out to be good or bad on the merits can have numbereffect on the sanction, which had been granted before it was entered into. If the deed is bad on the merits, it will fail on that ground and number on the ground that by reason thereof, the sanction becomes ineffective. And the result is the same whether the deed is bad in part or in toto. The companytention therefore that the lease deeds dated 2-8-1937 are inoperative must be rejected. The result is that the deeds dated 26-3-1915 and 23-11-1917 are valid but number the deed dated 1-6-1937, and that the leases granted to the appellant are valid, but the clause postponing the payment of minimum royalty in the lease deed or deeds of 2-8-1937 is inoperative. The appeals must accordingly be allowed, the decrees of the companyrt below set aside, and these of the trial companyrt restored. In Civil Appeal No. 191 of 1953, the appellant will have its companyts both here and in the companyrts below. In Civil Appeal No. 192 of 1953, the parties will bear their own companyts throughout. It must be mentioned that during the pendency of these appeals, by virtue of numberifications issued under sub-section 1 of section 3 of the Bihar Land Reforms Act XXX of 1950, the Estate of Ramgarh became vested in the State of Bihar, which thereafter intervened in these appeals. At the bearing, the State filed a memo in the following terms State of Bihar recognises and accepts as valid the leases granted to the appellant Company whether granted by the Court of Wards or the Raja under the license of 26th March 1915 as extended by the supplementary documents of 1917 and 1937 . Nothing in this companypromise shall preclude the State of Bihar in future from modifying the terms and companyditions of the leases in accordance with law empowering the State Government to do so. The respondent raised the companytention that the State had numberlocus standi to intervene in these proceedings and at the stage of appeal, but in the view which we have taken of the rights of the parties, a discussion of this point is purely of academic interest.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 250 of 1953, Appeal from the judgment and decree dated July 14, 1948 of the Chief Court of Audh, Lucknow in Second Appeal No. 365 of 1945 arising out of the decree dated May 30, 1945 of the Court of District Judge, Sitapur in Appeal No. 4 of 1945 against the decree dated November 25, 1944 of the Court of Additional Civil Judge, Sitapur in Regular Civil Suit No. 14 of 1944. D. Mathur, for the appellant. Jagdish, Chandra, for respondent No. 1. 1956. October 4. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship. One Sheo Ghulam, a pious Hindu and a resident of the said village, had the Thakurdwara companystructed during the years 1914-1916, and the idol of Shri Radhakrishnaji ceremoniously installed therein. He was himself in management of the temple and its affairs till 1928 when he died without any issue. On March 6, 1919, he had executed a will whereby he bequeathed all his lands to the Thakur. The provisions of the will, in so far as they are material, will presently be referred to. The testator had two wives one of whom Ram Kuar, had predeceased him and the surviving widow, Raj Kuar, succeeded him as Mutawalli in terms of the will and was in management. till her death in 1933. Then the first defendant who is the nephew of Sheo Ghulam, got into posses- sion of the properties as manager of the endowment in accordance with the provisions of the will. The appellant is a distant agnate of Sheo Ghulam, and on the allegation that the first defendant bad been mismanaging the temple and denyinng the rightg of the public therein, he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920, but the companyrt declined to interfere on the ground that the endowment was private. An application to the Advocate-General for sanction to institute a suit under section92 of the Code of Civil Procedure was also refused for the same reason. The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship. The first defendant companytested the suit, and claimed that the Thakurdwara an - d the idols were private, and that the general public had numberright to make any interference. The Additional Civil Judge, Sitapur, who tried the suit was of the opinion that the Thakurdwara had been built by Sheo Ghulam for worship by his family, and that it was a private temple. He accordingly dismissed the suit. This judgment was affirmed on appeal by the District Judge, Sitapur, whose decision again was affirmed by the Chief Court of Oudh in second appeal. The learned Judges, however, granted a certificate under s. 109 c of the Code of Civil Procedure that the question involved was one of great importance, and that is how the appeal companyes before Us. The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact. In Lakshmidhar Misra v. Rang-alal 1 , in which the question was whether certain lands had been dedicated as cremation ground, it was observed by the Privy Council that it was essentially a mixed question of law and fact, and that while the findings of fact of the lower appellate companyrt must be accepted as binding, its actual companyclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself. In the present case, it was admitted that there was a formal dedication and the companytroversy is only as to the scope of- the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal companycepts of a public and a private endowment to the facts found, and that is open to companysideration in this appeal. It will be companyvenient first to companysider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are 1 1949 L.R. 76 I.A. 271. laid down in the Sanskrit Texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sahara Swami has the following Words such as village of the Godsland of the Gods are used in a figurative sense. That is property which can be said to belong to a person, which he can make use of as he desires. God however does number make use of the village or lands, according to its desires. Therefore numberody makes a gift to Gods . Whatever property is abandoned for Gods, brings prosperity to those who serve Gods. Likewise, Medhathithi in companymenting on the expression Devaswam in Manu, Chapter XI, Verse 26 writes Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods. For the Gods do number make use of the property according to their desire number are they seen to act for protecting the same. Thus, according to the texts, the Gods have numberbeneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense Gainartha , and the true purpose of a gift of properties to the idol is number to companyfer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Bhupati Nath Smritititha v. Ram Lal Maitra 1 , it was held on a companysideration of these and other texts that a gift to an idol was number to be judged by the rules applicable to a transfer to a sentient being, and that dedication of properties to an idol companysisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins C. J. at p. 138 that the pious purpose is still the legate, the establishment of the image is merely the mode in which the pious purpose is to be effected and that the dedication to a deity may be a companypendious expression of the pious purposes for which the dedication is designed. Vide also the observations of Sir Ashutosh Mookerjee at p. 155. In Hindu Religious Endowments Board v. Yeeraraghavachariar 2 , Varadachariar J. dealing with this question, referred to the decision in Bhupati Nath Smrititirtha v. Ram Lal Maitra supra and observed As explained in that case, the purpose of making a gift to a temple is number to companyfer a benefit on God but to companyfer a benefit on those who worship in that temple, by making it possible for them to have the worship companyducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust. When once it is understood that the true beneficiaries of religious endowments are number the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents numberdifficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and number a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, 1 1910 I.L.R. 37 Cal. 128. A.I.R. 1937 Macl. 750. and that is an ascertained group of individuals. But where the beneficiaries are number members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers. In the light of these principles, we must examine the facts of this case. The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be companysidered under four heads 1 the will of Sheo Ghulam, Exhibit A-1, 2 user of the temple by the public, 3 ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and Uthsarga, and 4 other facts relating to the character of the temple. The will, Exhibit A-1, is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its provisions, so far as they are material, may number be numbericed. The will begins with the recital that the testator has two wives and numbermale issue, that he has companystructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes. Clause I of Exhibit A-1 provides that after the death of the testator in the absence of male issue, the entire immovable property given below existing at present or which may companye into being hereafter shall stand endowed in the name of Sri Radhakrisbnan, and mutation of names shall be effected in favour of Sri Radhakrishnan in the Government papers and my wives Mst. Raj Kuer and Mst. Ram kuer shall be the Muta- wallis of the waqf. Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime, and the remaining half was to companytinue to be spent for the expenses of the Thakurdwara. It is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the Thakurdwara. Clause 4 provides that if a son is born to the testator, then the properties are to be divided between the son and the Thakurdwara in a specified proportion but as numberson was born, this clause never came into operation. Clause 5 provides that the Mutawallis are to have numberpower to sell or mortgage the property, that they are to maintain accounts, that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit, property should be purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a companymittee of four persons to look after the , management of the temple and its properties, and of these, two are number relations of the testator and belong to a different caste. It is further provided in that clause that after the death of the two wives the companymittee may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion. This Murlidhar is a divided nephew of the testator and he is the first defendant in this action. Clause 3 provides for filling up of vacancies in the companymittee. Then finally there is cl. 6, which runs as follows If any person alleging himself to be my near or remote heir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed. The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment, or that it should be public. The learned Judges of the Chief Court in affirming the decisions of the companyrts below that the temple was built for the benefit of the members of the family, observed that there was numberhing in the will pointing to a companyclusion that the trust was a public one, and that its provisions were number inconsistent with the property being a private endowment. We are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and number merely to the members of his family. The testator begins by stating that he had numbermale issue. In Nabi Shirazi v. Province of Bengal supra , the question was whether a wakf created by a deed of the year 1806 was a public or a private endowment. Referring to a recital in the deed that the settlor had numberchildren, Khundkar J. observed at p. 217 The deed recites that the founder has neither children number grandchildren, a circumstance which in itself suggests that the imambara was number to remain a private or family institution. Vide also the observations of Mitter J. at p. 228. The reasoning on which the above view is based is, obviously, that the word family in its popular sense means children, and when the settlor recites that he has numberchildren, that is an indication that the dedication is number for the benefit of the family but for the public. Then we have clause 2, under which the testator companystitutes a companymittee of management companysisting of four persons, two of whom were wholly unrelated to him. Clause 3 companyfers on the companymittee power to fill up vacancies but there is numberrestriction therein on the persons who companyld be appointed under that clause, and companyceivably, even all the four members might be strangers to the family. It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body companysisting of strangers. Lastly, there is clause 6, which shows that the relationship between Sheo Ghulam and his kinsmen was number particularly companydial, and it is numbereworthy that under clause 2, even the appointment of the first defendant as manager of the endowment is left to the option of the companymittee. It is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefit. And if he did number intend them to be beneficiaries under the endowment, who are the members of the, family who companyld take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator companytemplated the companytinuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the deity, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intention, it is necessary to hold that the Thakurdwara was dedicated for worship by -members of the public, and number merely of his family. In deciding that the endowment was a -private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as companyrect. In the absence of a deed of endowment companystituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was numbertemple in the village. The trial Judge did number discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P.W. 2 was that the public were admitted into the temple number as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and be deposed that while Sheo Ghulams wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does number afford sufficient ground for the companyclusion that the villagers did number worship at the temple as a matter of right. It is numberhing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary companyes for worship, and the act of the pujari in stopping the public is expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be companystrued as a denial of their rights. The learned Judges of the Chief Court also relied on the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroon 1 as an authority for the position that the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private. In that case, certain properties were granted number in favour of an idol or temple but in favour of one Daryao Gir, who was maintaining a temple and to his heirs in perpetuity. The companytention of the public was that subsequent to the grant, the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship, and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication. In repelling this companytention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was number made out merely by showing that the public was allowed to worship at the temple since it would number in general be companysonant with Hindu sentiments or practice that worshippers should be turned away. But, in the present case, the endowment was in favour of the idol itself, and the point for decision is- whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be companyent evidence that the dedication was in favour of the public. In Mundancheri Koman v. Achuthan 2 , which was referred to and followed in Babu Bhagwan Din v Gir Har Saroon 1 , the distinction between user in respect of an institution which is initially proved to have been private and one which is number, is thus expressed Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered companyditions, would affect the private character of the trusts. As it is, they are of 1 1939 L.R. 67 I.A. 1. 2 1984 L.R. 61 I.A. 405. opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temples and their endowment were public religious trusts. We are accordingly of opinion that the user of the temple such as is established by the evidence is more companysistent with its being a public endowment. It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would number be companyclusive against it. In the present case, it is companymon ground that the companysecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras. P. W. 10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies companymencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public. In the companyrt below, the appellant raised the companytention that the performance of Uthsarga ceremony at the time of the companysecration was companyclusive to show that the dedication was to the public, and that as P. W. 10 stated that Prasadothsarga was performed, the endowment must be held to be public. The learned Judges companysidered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under section, 109 c of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the companytention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa, Uthsarga and Pra- thista. Sankalpa means determination, and is really formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. Vide The Hindu Law of Religious and Charitable Trust by B. K. Mukherea, 1952 Edition, p. 36. The formulae to be adopted in Sankalpa and Uthsarga are set out in Kanes History of Dharmasastras, Volume 11, p. 892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public Sarvabhutebyah . It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to P. W.-IO was recited on the occasion of the foundation was number Uthsarga but Prasadoasarga, which is something totally different. Prasada is the mandira, wherein the deity is placed before the final installation or Prathista takes placer and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion, and the text relating to it as given in the Mayukha runs as follows It will be seen that this is merely the Sankalpa without the Uthsarga, and there are numberwords therein showing that the dedication is to the public. Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like companystruction of tanks, rearing of gardens and the like, and number for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part 11, Appendix II, II,p. 339 that there is numberutsarga of a temple except in the case of repair of old temples. In the, History of Dharmasastras, Volume II, Part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and number Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The appellant is companyrect in his companytention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by P.W. 10, is number in dispute. In our opinion, this establishes that the dedication was to the public. We may number refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public. Firstly, there is the fact that the idol was installed number within the precincts of residential quarters but in. a separate building companystructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan 1 , it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more companysistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was numbertemple in the village, and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has number been companysidered by the companyrts below, and if it is true, that will be decisive to prove that the endowment is public. 1 1875 16 Ben. L.R. 167,186. It should be observed in this companynection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public, the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did number aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and for his puja only. The view of the lower companyrt that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is number supported by the evidence in the case. Having companysidered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple. In the result, the appeal is allowed, the decrees of the companyrts below are set aside, and a declaration granted in terms of para 17 a of the plaint. The companyts of -the appellant in all the companyrts will companye out of the trust properties.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petition No. 172 of 1956. Under Article 32 of the Constitution for a writ in the nature of Habeas Corpus. N. Andely, amicus curiae, for the petitioner. Porus A. Mehta, T. M. Sen and R. H. Dhebar, for the respondent. 1956. November 1. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an application under article 32 of the Constitution for the issue of a writ in the nature of habeas companypus against the State of, Jammu and Kashmir by the petitioner who was under detention by virtue of an order dated the 5th September, 1956, issued by the Government of the State of Jammu and Kashmir under sub-section 2 of sec- tion 3 taken with sub-section 1 of section 12 of Jammu and Kashmir Preventive Detention Act, 2011 hereinafter referred to as the Act . The petitioner was first placed under detention by virtue of an order passed by the District Magistrate, Jammu, under subsection 2 of section 3 of the Act on the 1st May, 1956, and that order was companyfirmed and companytinued on the 5th September, 1956, under sub-section 1 of section 12 of the Act by the Government after taking the opinion of the Advisory Board. The two orders of detention, one of the District Magistrate dated the 1st May, 1956, and the other of the Government dated the 5th September, 1956, recited that the petitioner is directed to be detained because it was, necessary to make such an order with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds of detention as companymunicated to the petitioner on the 31st May, 1956, by the District Magistrate, Jammu, are as -follows That you carried on smuggling of essential goods to Pakistan through the Ferozpur and Amritsar border, but since the tightening of said borders you have recently shifted your smuggling activities to Ranbirsinghpura Pakistan borders in the State of Jammu and Kashmir and are carrying on illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through this border thus affecting the economic companydition of the public in Kashmir State adversely . That for the said purpose of smuggling of goods to Pakistan you went to village Darsoopura on 7th April, 1956, and companytacted Ghulam Ahmed son of Suraj bin resident of Darsoopura Tehsil Ranbirsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil Ranbirsinghpura and others who I similarly are addicted to carrying on such a smuggling business and with their aid made arrangements for export of Shaffon cloth worth Rs. 2,500 to Pakistan through Ranbirsinghpura Pakistan border. That on 11-4-1956, you booked 3 bales of silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got these bales on address of yourself, and on the same day you got one package of Tila booked through S. Kanti Lal Zarianwalla of Amritsar and got this package also addressed To self for Jammu Tawi. That after booking these packages as aforesaid you came over to Jammu and waited for their arrival and companytacted Ghulam Ahmed and Ram Lal the above mentioned persons. That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National. Bank but did number succeed in doing so as it was a public holiday. Meanwhile your activities leaked out and the goods were seized by the Central Customs and Excise Department of India. There are other facts also but those cannot be given as I companysider their disclosure would be against the public interest. That by resorting to the above activities you have been and are acting in a manner prejudicial to the maintenance of the supplies and services essential to the companymunity. It will be seen from the above grounds that the reason for the detention is the alleged illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through the border, thereby affecting the economic companydition of the public, in Kashmir State adversely. From the particulars set out in paragraph 2 of the grounds, it appears that the cloth referred to in paragraph I is Shaffon cloth. The High Court of Jammu and Kashmir, to whom a similar application was filed by this petitioner along with a number of others similarly detained for illicit smuggling of goods, has in its judgment dated the 21st June, 1956 held that Shaffon cloth is number within the category of an essential companymodity as defined in the Essential Supplies Temporary Powers Ordinance of Jammu and Kashmir. There is numberindication in the High Court judgment whether zari is or is number an essential companymodity in the same sense. But in answer to a query from this Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu and Kashmir has stated, on instructions, that zari which is obviously a luxury article is number one of the companymodities declared essential under the above Ordinance. The High Court, when it dealt with the batch of applications, of which the application of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to the individuals companycerned in those cases was number of essential goods. So far as this petitioner is companycerned the High Court held as follows The case of Dwarika Das Bhatia stands on s different footing altogether. The allegation against him is that he smuggled into Pakistan some goods such as cloth and zari along with a certain quantity of mercury. Mercury is a number-ferrous metal and according to the definition of an essential companymodity given in the Essential Supplies Temporary Powers Ordinance, mercury is an essential companymodity. This being so, Dwarika Das Bhatias detention cannot be challenged. The point raised before us is that since the detention is based on the assumption that Shaffon cloth and zari as well as mercury are all essential goods and since two out of the three categories of the goods with reference to the smuggling of which the detention has been directed, are found number to be essential goods, the entire order is illegal, although one of the items, viz., mercury is an essential companymodity. In support of this companytention, the cases of this Court in Dr. Ram Krishan Bhardwaj v. The,, State of Delhi 1 , and Shibban Lal Saksena v. The State of P. 2 are relied upon. Learned companynsel for the State of Jammu and Kashmir companytends that the principle of these decisions has numberapplication to the present case, and attempts to distinguish the same. In order to understand the principle underlying these two cases, it is necessary to examine them in some detail. In Dr. Ram Krishan Bhardwajs case supra the two points that were raised were 1 whether an order of detention is invalid if the grounds supplied in support thereof are vague, and 2 whether the vagueness of one or some of the various grounds vitiates the entire order. The argument advanced in that case was based on the view adopted by this Court in the decision in Atma Ram Sridhar Vaidyas case 3 , viz., that the obligation cast on the detaining authority to supply grounds is for the purpose of enabling a detenue to make a fair representation to the authority companycerned and to the Advisory Board, against the order of detention. The argument was that in a 1 1953 S.C.R. 708. 2 1954 S C.R. 418. 3 1951 S C.R. 167. case where one or more of the grounds are vague, the petitioner is handicapped in making an adequate representation as regards that ground and his representation even if effective in respect of the other grounds, may fail to carry companyviction as regards the ground which is vague and that this might result in the detention being companyfirmed. The Court stated that that argument was number without force and held as follows The question however is number whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his companystitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court We are Of opinion that this companystitutional requirement must be satisfied with respect to each of the grounds companymunicated to the person detained, subject of companyrse to a claim of the privilege under clause 6 of article 22. That number having been done in regard to the ground mentioned the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. Shibban Lal Saksena v. The State of U. P. supra is a case where the question arose in a different form. The grounds of detention companymunicated to the detenue were of two-fold character, i.e., fell under two different categories, viz., 1 prejudicial to maintenance of supplies essential to companymunity, and 2 injurious to maintenance of public order. When the matter was referred to the Advisory Board, it held that the first of the above grounds was number made out as a fact but upheld the order on the second ground. The question before the companyrt was whether this companyfirmation of the original order of detention, when one of the two grounds was found to be number-existent by the Advisory Board, companyld be maintained. Their Lordships dealt with the matter as follows It has been repeatedly held by this companyrt that the power to issue a detention order under section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency Of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are number extraneous to the scope or purpose of the legislative provision cannot be challenged in a companyrt of law, except on the ground of mala fides. A Court of law is number even companypetent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the companymunication to the detenue under section 7 of the Act. Posing the situation which arises in such cases where one of the grounds is found to be irrelevant or un.substantiated, the Court stated as follows The question is, whether in such circumstances the original order made under section 3 1 a of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad number can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and companytributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the Federal Court in the case of Keshav Talpade v. The King Emperor 1 , seems to us to be quite sound and applicable to the facts of this case. 1 1943 F.C.R. 88. In Keshav Talpades case 1 the learned Judges stated as follows If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons bad been before them. The principle underlying all these decisions is this power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to- specified matters, if that satisfaction is stated to be based on a Dumber of grounds or for a variety of reasons all taken together, and if some out of them are found to be number- existent or irrelevant, the very exercise of that power is bad. That is so, because the matter being one for subjec- tive satisfaction, it must be properly based. on all the reasons on which it purports to be based. If some ,out of them are found to be number-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the-objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as-, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is number merely because some ground or reason of a companyparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will number lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged. 1 1943 F. C. R. 88. In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three companymodities, cloth, zari and mercury of which two are found number to be essential articles. No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two companymodities was of an inconsequential nature. On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari we understand that tila referred to in paragraph 3 is zari indicates that probably the smuggling of these two items was number of an inconsequential nature. We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil AppEal No.333 of 1956. Appeal by special leave against the judgment and order dated March 23, 1955, of the Election Tribunal, Lucknow, in Election Petition No. 320 of 1952. K. Daphtary, Solicitor General of India, R. C. Gupta, S. Trivedi and S. S. Shukla, for the appellant. S.- Krishnaswamy Iyengar, S. P. Sinha and R. Patnaik, for respondent No. 1. 1956. December 21. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is an appeal by special leave against the order of the Election Tribunal, Faizabad, declaring the election of the appellants to the Legislative Assembly, Uttar Pradesh from the Lucknow Central Constituency, void under s. 100 2 b of the Representation of the People Act No. XLIII of 1951, hereinafter referred to as the Act. The Constituency is a double-member Constituency. one of the seats being reserved for a member of the Scheduled Castes. The -polling, took place on 31-1- 1952, and the two appellants we-re declared elected, they having secured the largest number of votes. On -June 10 1952, the respondent herein filed a petition under S. 81 of the Act alleging that the appellants had companymitted a number of companyrupt practices, and prayed that the election might be declared wholly void. The appellants filed written. statements denying these allegations, and on the pleadings, issues were framed on January 17, 1953. Then followed quite a spate of proceedings, companysisting of applications for framing of fresh issues for better particulars and for amendment of the election petition, to which a more detailed reference will presently be made. As a result of these proceedings, it was number until September, 1954, that the hearing of the petition began On March 23, 1955, the Tribunal delivered its judgment and, by a majority, it set aside the election on two grounds, 1 that the appellants had obtained the assistance of four village officers, Mukhias, in furtherance of. their election prospects and had thereby companytravened s.123 8 of the Act and 2 that the first appellant had employed for payment in companynection with high election two persons in addition to the number permitted by Rule 118 read with Schedule VI, namely, Ganga Prasad and Viswanath Pande, and had there by infringed s. 123 7 of the Act. Before us, the appellants dispute the companyrectness of the companyclusions on both these points. As regards the first point, the main companytention of the appellants that the charge that they had employed four Mukhias in furtherance of their, election prospects was number pleaded in the petition as originally presented and that it came in only by an amendment dated November 28, 1953, that. the Tribunal had numberpower to order that amendment, and that, accordingly, the finding thereon should be disregarded. It is necessary for a companyrect appreciation of the companytentions on either side to state the facts leading to this amendment. The material allegations in the petition as it was presented on June 10, 1952, are companytained in para 7 c , and are as follows That the respondents Nos. 1 and 2 companyld in furtherance of their election enlist the support of certain Government servants. The District Magistrate, Lucknow, organised the opening of eye relief camps, and these functions were utilised for the election propaganda of the respondents Nos. 1 and 2. An eye relief camp was proposed to be opened on December 16, 195 1, at Kakori by Sri C. B. Gupta, Minister, Civil Supplies, U.P., one of the chief organisers of the election of the respondents Nos. 1 and 2. An election meeting was advertised by the workers of the respondents Nos. I and 2 to be held within a short distance of the proposed eye relief camp on the same day. This meeting was amongst others addressed by Sri G. B. Pant, Chief Minister, P., Sri C. B. Gupta and the respondent No. 1. It was also attended by the Patwaris and Qanungo of the, Kakori Circle including the Tahsildar, Lucknow and the Duty Superintendent of Police, Lucknow. On December 27, 1951, an eye relief camp was similarly. organised and opened at Kakori. The ceremony this time was performed by Mrs. Vijay Lakshmi Pandit and immediately thereafter from the same platform and at the same place election speeches were made and the audience exhorted to vote for Mrs. Vijay Lakahmi Pandit, a candidate for the House of the People from that area and respondents Nos. 1 and 2. This meeting was attended -by, the District Magistrate. Lucknow, Sub Divisional Magistrate, Lucknow, Deputy Superintendent of Police, Lucknow, Tahsildar, Lucknow and Patwaris and Qanungo of Kakori Circle. The respondents Nos. I and 2 by this device succeeded in creating an impression on the voters that they had the support of the district officials. There was numberlist of particulars attached to the petition as provided in s. 83 2 of the Act. On December 15, 1952, the first appellant filed his written statement, and therein he stated with reference to para 7 c that it was wrong and denied that the answering respondent in furtherance of his election enlisted the support of any government servant. He also stated that the allegations were number accompanied by a list, and were vague and lacking in particulars and were liable to be struck off. The written statement of the second appellant filed on December 20, 1952, was also on the same lines as those of the first appellant. Respondent No. 4, who was a defeated candidate and supported the respondent herein, filed a written statement on December 3, 1952, wherein he alleged that the appellants had obtained services of village officers, such as Lambardars and Sarpanches in furtherance of their election prospects. Respondent No. 9 who was another defeated candidate also filed a written statement on the same day, adopting the allegations in the statement of the fourth respondent adding Mukhias to the list of village officials whose assistance was procured by the Appellants. On January 10, 1953, the respondent filed a replication to the written statements of the appellants, wherein he stated as follows As stated in the petition, the denial of the respondents Nos. 1 and 2 is absolutely wrong, inasmuch as many Government servants worked for, issued appeals and became polling agents for respondents I and 2. In these meetings at Kakori many government servants took part and some worked for furtherance of the election of respondents Nos. I and 2 and issued appeals to the public to vote for respondents Nos. I and 2 and also became their polling agents. On January 24, 1953, the appellants filed a written statement objecting to the reception of the replication on the ground that the petitioner respondent had numberright to file it and that it was a mere device to add to the original petition. They also filed an application on the same date for a preliminary hearing of certain issues relating to the companytentions raised by them in their written statements that the allegations in the petition were vague and should be struck off for want of particulars, and the same was posted for hearing on February 25, 1953. Arguments were heard on these issues on that day and again on August 25, 1953, and the following days, and on October 31, 1953, the Tribunal passed an order striking off some of the allegations in the petition and calling upon the petitioner to give particulars in respect of others. Dealing with para 7 c of the petition, the order stated Paragraph 7 C is number vague. It shall remain as it is. Corresponding paragraph of the replication introduces some new matters. Therefore, the same shall be disregarded. The Petitioner has number named ,the Government servants. He shall supply the names of the officials including those of the Patwaris and Qanungoes. Meantime, after the preliminary argument aforesaid had companymenced and before it was companycluded, the respondent filed on February 27, 1953, an application for amendment of his petition, the order on which is the main target of attack in this appeal. It was presented under s. 83 3 of the Act, and prayed that the petitioner be allowed to amend the details of para 7 c by adding the words Village Headmen with their names and the fact that they worked and issued appeal and subsequently they became the -polling agents of respondents Nos. 1 and 2. It mentioned for the first time the names of the Mukhias whose assistance the appellants have been held to have obtained. This application was opposed by -the appellants on the ground that the amendment did number fall within s. 83 3 ,that, the matters sought to be introduced thereby were new charges, and if admitted, they would alter the very character of the petition, and that it should number be granted, as a fresh petition on those allegations would be barred on that date. It should be mentioned that oh January 22, 1953, respondent No. 4 had filed an application to raise additional issues on his averments that the appellants had obtained assistance from the village officers. That application was also companytested by the appellants. It would appear that this application and the amendment petition were heard together. On November 10, 1953, the Tribunal by a majority passed an order dismissing the application of the fourth respondent for additional issues. On November 28, 1953, it allowed, again by a majority, the application of the respondent for amendment observing that the matters sought to be introduced were merely particular in respect of the charge set out in par 7 c of the petition, that the respondents I and 2 companyld in furtherance of their election enlist the support of certain Government servants, and further that 0. VI, r. 17 of the Civil Procedure Code was applicable to proceedings before the Election Tribunal. The appellants attack the companyrectness of this companyclusion, and companytend that the Tribunal had numberpower either under s. 83 3 or under 0. VI, r. 171 to order the amendment in question.- They also companytend that even if the Tribunal had the power to order Amendment, the order in question is number justified on the merits, and is erroneous. It is necessary to set out the statutory provisions bearing on the question S.81 1 . An election petition calling in question any election may be presented on one or more grounds specified in sub-ss. 1 and 2 of s. 100 and S. 101 to the Election Commission by any candidate at such election or any elector in such form and within such time but number earlier than the date of publication of the name or names of the returned candidate or candidates at such I election under s. 67, as may prescribed. S.83 1 . An election petition shall companytain a companycise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 Act V of 1908 , for the verification of pleadings. The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any companyrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have companymitted such companyrupt or illegal practice and the date and place of companymission of each such practice. The Tribunal may, upon such terms as to companyts and otherwise as it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein-to be furnished as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition. If the provisions of s. 81, s. 83 or s. 117 are number companyplied with, the Election Commission shall dismiss the petition. 90 2 . Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 Act V of 1908 , to the trial of suits. 90 4 . Notwithstanding anything companytained in s. 85, the Tribunal may dismiss an election petition which does number companyply with the provisions of s. 81,a. 83 or s. 117. The Tribunal shall have the powers, which are vested in a companyrt under the Code of Civil Procedure, 1908 Act V of 1908 , when trying a suit in respect of, the following matters a discovery and inspection b enforcing the attendance of witnesses and requiring the depositor their expenses c companypeting the production of documents d examining witnesses on oath e granting adjournments f reception of evidence taken on affidavit and g issuing companymissions for the examination of witnesses, -and may summon and examine suo motu any person whose evidence appears to it to be material and shall be deemed to be a civil companyrt within the meaning of ss. 480 and 482 of the Code of Criminal Procedure, 1898 Act V of 1898 . Now, we start with this that s. 83 3 grants a power to the Tribunal to amend particulars in a list. What is its scope? Is it open to the Tribunal acting under this provision to direct new instances of the companyrupt practices to be added to the list? And if it is, is that what it did in the present case? It is companytended by the learned Solicitor-General on behalf of the appellants that s. 83 3 does number authorize the inclusion of new instances of companyrupt practices, and that all that companyld be ordered under that provision was giving of fuller particulars in respect of instances given in the petition. The argument in, support of this companytention might thus be stated Section 81 requires that the election petition should state the grounds on which it is founded. Section 83 1 enacts that it should companytain -a companycise statement of the material facts on which the petitioner relies, and s. 83 2 provides that the petition should be accompanied by a list companytaining full particulars of the companyrupt or illegal practices. When the three provisions are read together, it is clear that the legislature has made a distinction between grounds in s. 81 1 , facts ins. 83 1 and full particulars in s. 83 2 and in this companytext, facts in s. 83 1 must mean instances of the charge on which the petition is grounded and the particulars referred to in s. 83 3 can only mean particulars in respect of the instances set out in the petition in accordance with s. 83 1 . The companysequence is that an instance of a companyrupt practice number given in the petition, cannot be brought in under section 83 3 . On this reasoning, it is companytended that the order of the Tribunal dated November 28, 1953, permitting the respondent to allege that the appellants obtained the assistance of four Mukhias, whose names were mentioned for the first time in the amendment petition, is outside the ambit of the power companyferred by s. 83 3 . We are unable to agree with this companytention. In I our opinion, s. 81 1 and s. 83, sub-ss. 1 and 2 , when companyrectly understood, support the companytention of the respondent that the Tribunal has authority to allow an amendment even when that involves inclusion of new instances, provided they relate to a charge companytained in the petition. Taking first s. 81 1 , it enacts that a petition may be presented calling an election in question on one of the grounds specified in a. 100, sub-ss. 1 and 2 and section 101. These sections enumerate a number of grounds on which the election may be set aside, including the companymission of the companyrupt practices mentioned in s. 123 of the Act, and quite clearly it is the different categories of Objections mentioned in s. 100, sub-ss. 1 and 2 , S. 101 and s. 123 that companystitute the grounds mentioned in s. 81 1 . Then we companye to s. 83 1 . It says that the petition should companytain a companycise statement of the material facts, and that would include facts relating to the holding of the election, the result thereof the grounds on which it is sought to be set aside, the right of the petitioner to present the petition and the like. Then s. 83 2 enacts that when there is an allegation of companyrupt or illegal practice, particulars thereof should be given in a separate list. If the grounds on which an election is sought to be set aside are something other than the companymission of companyrupt or illegal practices, as for example, when it is stated that the numberination had been wrongly accepted or that the returned candidate was number entitled to stand for election, then s. 83 2 has numberapplication, and the requirements of s. 83 1 are satisfied when the facts relating to those objections are stated. The facts to be stated under a. 83 1 . are thus different from the particulars -which have to be given -under a. 83 2 . When therefore, an election is challenged on the ground that the candidate hag companymitted the companyrupt practices mentioned in section 123, instances companystituteing particulars thereof will properly fall within s. 83 2 and number a. 83 1 . The result is that the power under a. 83 3 to allow further and better particulars will include a power to allow fresh instances of the charges,which form the grounds on which the election is Questioned. We are fortified in this companyclusion by decisions of English Courts, on statutory provisions which are in pari materia with our enactment. Section 20 of the Parliamentary Elections Act, 1868 enacts that an election petition shall be in such form and state such matters as may be prescribed, that is, by the rules. Rule 2 of the Parliamentary Election Rules provides that the election petition shall state the holding and result of the election and shall briefly state the facts and grounds relied on to sustain the prayer . Rule 5 gives the form of an election petition and the third paragraph therein is as follows. And your petitioners say here state the facts and grounds on which the petitioners rely . The true scope of these Provisions came up for companysideration in Beal v. Smith 1 . There, the election petition merely stated that the respondent by himself and other. person. on his behalf, was guilty if bribery, treating and undue influence. The respondent took out an application for an order that the petition be taken off the file on the ground that it merely stated the grounds but number the facts companystituting the particulars as required by Rule 2. In the alternative, it was prayed that the petitioners should be directed to give particulars relating to the several companyrupt practices. In rejecting the former prayer, Bovill C. J. observed Now, with regard to the form of the petition, it seems to me that it sufficiently follows the spirit and intention of the rules and numberinjustice can be done by its generality, because ample provision is made by the rules to prevent the respondent being surprised or deprived of an opportunity of a fair trial, by an order for such particulars as the judge may deem reasonable. I think, therefore, it would be quite useless to require anything further to be stated in the petition than appears here. With reference to the alternative prayer, it was held that an order that the particulars be furnished three days prior to the trial was a proper one to be passed. A similar decision was given in the Greenoch Election Case, a report of which is given in a footnote at page 150 of Beal v. Smith 1 1869 L. R. 4 C- P.145. These decisions establish that the requirement as to statement of grounds and facts is satisfied when the charge on which the election is sought to be set aside is set out in the petition, that the fare to give therein particulars of companyrupt and illegal practices on which it is founded is number fatal to its maintainability, and that it is sufficient if the particulars are ordered to be furnished within a reasonable time before the companymencement of the trial. On the same reasoning, the companyclusion should follow that s. 81 1 and a. 83 1 are companyplied with, when the grounds on which the election is sought to be set aside, are stated in the petition, those grounds being, as already stated, the matters mentioned in s. 100, sub-ss. 1 and 2 , s. 101 and s. 123, which is attracted by s. 100 2 b , and that the particulars in respect of those grounds, when they are charges of companyrupt or illegal practices, fall within s. 83 2 . There is, it should be observed, numberhing in the Election law of England companyresponding to s. 83 2 , the question of particulars being left there to be dealt with under the Rules applicable to the trial of causes. The companysequence is that while under the English practice, the petitioners are number obliged to state particulars of companyrupt practices in their petition, under s. 83 2 a statement of those particulars must be made in the petition in a separate list annexed thereto. But this difference is more a matter of form than of substance, as s. 83 3 provides for particulars being called for and furnished in the companyrse of the proceedings, and does number affect the companyclusion as to the power of the Tribunal to allow new instances to be pleaded. Section 83 3 provides, it should also be numbered, for the list of particulars being amended or enlarged. It is number, however, to be inferred from this that when the particulars are mentioned in the body of the petition, they companyld number be amended. The reference to the list, in a. 83 3 must be taken along with the provision in s. 83 2 that particulars are to be set out in a list to be attached to the petition. The substance of the matter, therefore, is that under s. 83 3 particulars can be amended and supplemented, and the reason of it requires that the power companyld be exercised even when the particulars are companytained in the body of the petition. And even when there is numberlist filed, as in the present case, it would be companypetent to the Tribunal to allow an amendment giving for the first time instances of companyrupt practice, provided such companyrupt practice has been made a ground of attack in the petition. One other argument urged by the appellants against this companyclusion must number be companysidered. It is based on the language of s. 83 3 . That section, it is urged, allows firstly by an amendment of the particulars. included in the list, and secondly further and better particulars in regard to any matters referred to therein and that, according to the appellants, means the particulars already given in the list. it is accordingly companytended that the power to allow further and better particulars can be exercised only in respect of particulars already furnished, whether they be companytained in the body of the petition or in the list, and that, therefore, an order permitting inclusion of new instances is outside the purview of s. 83 3 . The assumption underlying this companytention is that the word matter in s. 83 3 means the same thing as particulars. We see numberreason why we should put this narrow companystruction on the word matter. That word is, in our opinion, of wider import than particulars, and would also companyprehend the grounds on which the election is sought to be set aside. If the companystruction companytended for by the appellant is companyrect, the relevant portion of s. 83 3 will read as further and better particulars in regard to any particulars referred to therein, and that does number appear to us to be either a natural or a reasonable reading of the enactment. Having regard to the scheme of the Act stated above, we think that s. 83 3 is intended to clothe the Tribunal with a general power to allow number merely an amendment of particulars already given but also inclusion of fresh particulars, pleading new instances, subject to the companydition that they are in respect of a ground set out in the petition. This is in accordance with the law and practice obtaining in the Election Courts in England. Thus,in the Carrickfergus Case 1 , in ordering 1 1869 1 OM. H. 264, 265. an application for amending particulars, so as to include matters which had only then companye to the knowledge of the petitioner, OBrien, J., observed In some respects the Petitioner came down here manifestly ignorant of the exact grounds upon which several of the charges of the Petition were founded. I therefore thought it reasonable upon a proper case being made out to allow the Petitioner to amend his bill of particulars by adding such facts as only -recently came to his knowledge. I companysider that in the trial of these petitions, where the purity of the election is questioned, the most searching enquiry should be instituted, and it is the duty of the Judge to afford every facility in his power to that investigation. In the Dublin Case 1 , the order was one directing a list. of particulars to be amended, the Court observing I shall allow the utmost latitude to amend, unless it is a case in which I see that the party kept back information at the time the list was furnished. In this view, the order of amendment in question is number open to attack on the ground that it has permitted new instances to be raised. What has to be seen is whether those instances are, in fact, particulars in respect of a ground put forward in the petition, or whether they are, in substance, new grounds of attack. Before dealing with this question, it will be companyvenient to companysider the alternative companytention raised for the respondent -that even if the Tribunal had numberpower to order the amendment in question under s. 83 3 of the Act, it was companypetent to do so under o. VI, r. 17, Civil Procedure Code, and that this Court should number in special appeal interfere with the discretion exercised by it in making the order. That raises the question which has been very much debated both in the Election Tribunals and in the High Courts of the States as to whether 0. VI, r. 17 applies to proceedings before Election Tribunals. Mr. K. S. Krish- naswami Ayyangar, learned companynsel for the respondent, companytends that it does, by force of s. 90 2 of the Act, under which the Tribunal is to try a petition as 1 1869 1 OM. H. 270, 272. nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Now, in A. G. v. Sillem 1 it was stated by Lord Westbury that the word practiceand it means, as observed in Poyser V. Mixors 2 the same - thing as procedure- denotes the rules that make or guide the Curcus cirise, and regulate the proceedings ina cause within the walls or limits of the Court itself . And these proceedings include all ,steps, which might be taken in the prosecution or defence thereof, including an application for amendment. In Maude v. Lowley 3 , the point arose for decision whether the power companyferred on the Election Court by s. 21 5 of the Corrupt Practices Municipal Elections Act, 1872, to try the petition, subject to the provisions of the Act, as if it were a cause within its jurisdiction, carried with it a power to order amendment of the petition. It was held that it did. That precisely is the point here. But it is companytended for the appellants that 0. VI, r. 17 cannot be held to apply to proceedings before the Tribunal by reason of s. 90 2 , because 1 under that section, it is only the trial of the election petition that has to be in accordance with the provisions of the Civil Procedure Code, and the question of amendment of the petition relates to a stage anterior to the trial 2 s. 92 enumerates certain matters in respect of which the Tribunal is to have the powers of a companyrt under the Civil Procedure Code, and as amendment of pleadings is number one of them, 0. VI, r. 17 must be held to have been excluded from its jurisdiction 3 the Act makes a distinction between procedure and powers, s. 90 2 extends the provisions of the Civil Procedure Code to proceedings before Tribunals only in respect of procedure, and power to order amendment under 0. VI, r. 17 is number within the extension and 4 s. 90 2 is, in any event, subject to the provisions of the Act and the rules made thereunder, and the power of amendment under s. 83 3 being limited to particulars, the 1 1864 10 H.L.C. 704,723 II E.R. 1200, 12O9. 2 18817 Q.B.D. 329,333. 3 1874 L.R. 9 CP. 165. 172. general power of amendment under 0. VI, r. 17 must be held to have been excluded. The companyrectness of these companytentions must number be examined. Taking the first companytention, the point for decision is as to what the word trial in s. 90 2 means. According to the appellants, it must be understood in a limited sense, as meaning the final hearing of the petition, companysisting of examination of witnesses, filing documents and addressing arguments. According to the respondent, it companynotes the entire proceedings before the Tribunal from the time that the petition is transferred to it under s. 86 of the Act until the pronouncement of the award. While the word trial standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in s. 90 2 , and to decide that we must have regard to the companytext and the setting of the enactment. Now, the provisions of the Act leave us in numberdoubt as to in what sense the word is used in s. 90 2 . It occurs in Chapter III which is headed Trial of election petitions . Section 86 4 provides that if during the companyrse of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another member, and thereupon the trial is to be companytinued. This provision must apply to retirement or relinquishment by a member, even before the hearing companymences, and the expression during the companyrse of the trial must therefore include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing directions and the like. After the petition is transferred to the Election Tribunal under s. 86,, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement issues have to be settled. If trial for the purpose of s. 90 2 is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunal is to call for written statements and settle issues ? Section 90 4 enacts that when an election petition does number companyply with the provisions of s. 81, s. 83 or s. 117, the Tribunal may dismiss it. But if it does number dismiss it, it must necessarily have the powers to order rectification of the defecte arising by reason of number-compliance with the requirements of s. 81, s. 83 or section 117. That number being a power expressly companyferred on it under s. 92 can only be sought under Is. 90 2 , and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in a companyrt under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and companypelling the production of documents, which clearly do number form part of the hearing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that trial is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under s. 86 until the pronouncement of the award. The second companytention urged on behalf of the appellants is that if the provisions of the Civil Procedure Code are held to be applicable in their entirety to the trial of election petitions, then there was numberneed to provide under s. 92 that the Tribunal was to have the powers of companyrts under the Code of Civil Procedure in respect of the matters mentioned therein, as those powers would pass to it under s. 90 2 . But this argument overlooks that the scope of s. 90 2 is in a material particular different from that of s. While under s. 90 2 the provisions of the Civil Procedure Code are applicable only subject to the provisions of the Act and the rules made thereunder, there is numbersuch limitation as regards the powers companyferred by s. 92. It was obviously the intention of the legislature to put the powers of the Tribunal in respect of the matters mentioned in s. 92 as distinguished from the other provisions of the Code on a higher pedestal, and as observed in Sitaram v. Yoqrajising 1 , they are A.I.R. 1953 BOM. 293. the irreducible minimum which the Tribunal is to possess. It is then argued that s. 92 companyfers powers on the Tribunal in respect of certain matters, while s. 90 2 applies the Civil Procedure Code in respect of matters relating to procedure, that there is a distinction between power and procedure, and that the granting of amendment being a power and number a matter of procedure, it can be claimed only under s. 92 and number under a. 90 2 . We do number see any antithesis between procedure in s. 90 2 and powers under s. 92. When the respondent applied to the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under s. 90 2 . The question of power arises only with reference to the order to be passed on the petition by the Tribunal. Is it to be held that the presentation of a petition is companypetent, but the passing of any order thereon is number? We are of opinion that there is numbersubstance in this companytention either. The last companytention is based on the provision in s. 90 2 that the procedure prescribed in the Code of Civil Procedure is to apply subject to the provisions of the Act and the Rules. It is argued that s. 83 3 is a special provision relating to amendments, -and that it must be companystrued as excluding 0. VI, r. 17. The result, according to the appellants, is that if an amendment companyld number be ordered under s. 83 3 , it companyld number be ordered under 0. VI, r. 17. This companytention appears to us to be wholly untenable. The true scope of the limitation enacted in s. 90 2 on the application of the procedure under the Civil Procedure Code is that when the same subject-matter is companyered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a companyflict between them, the former is to prevail over the latter. This limitation cannot operate, when the subject-matter of the two provisions is number the same. Section 83 3 relates only to amendment of particulars, and when the amendment sought is one of particulars, that section will apply to the exclusion of any rule of the Civil Procedure Code which might companyflict with it, though it does number appear that there is any such rule. But where the amendment relatesnot to particulars but to other matters, that is a field number occupied by s. 83 3 , and 0. VI, r. 17 will apply.The fallacy in the argument of the appellants lies in the assumption that s. 83 3 is a companyprehensive enactment on the whole subject of amendment, which it clearly is number. In this view, there is numberscope for the application of the maxim, expressio unius exclusio alterius, on which the appellants rely. It should be mentioned that the provision in s. 83 2 for stating the particulars separately in a list attached to the petition is one peculiar to the Indian Statute, and the legislature might have companysidered it desirable ex abundanti cautela to provide for a power of amendment in respect thereto. To such a situation, the maxim quoted above has numberapplication. In Maxwell on Interpretation of Statutes, Tenth Edition, pages 316-317, the position is thus stated Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the companytention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius, exclusio alterius. But that maxim is inapplicable in such cases. The only inference which a companyrt can draw from such superfluous provisions which generally find a place in Acts to meet unfounded objections and idle doubts , is that the legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. Vide also Halsburys Laws of England, Hailshams Edition, Volume 31, page 506, para 651. We are accordingly of opinion that the application of 0. VI, r. 17, Civil Procdure Code to the -proceedings before the Tribunal is number excluded by a. 83 3 . Turning next to the authorities, the decision of this Court in Jagan Nath v. Jaswant Singh 1 goes far to companyclude the question in favour of the respondent. In that case, a petition to set aside an election was filed without impleading one of the candidates, Baijnath, 1 1954 S.C.R. 892, who had been numberinated but had withdrawn -from the companytest. That was against s. 82 of the Act. The respondent then applied for an order dismissing the petition on the ground that it companyld number go on in the absence of Baijnath. The Tribunal held on this petition that the number-joinder of Baijnath was number fatal to the maintainability of the petition, and passed an order directing him to be impleaded. This order was challenged on the ground that there was numberpower in the Tribunal to order a new party to be impleaded. But this Court repelled this companytention, and held on a review of the provisions of the Act including s. 90 2 that the Tribunal had the power to pass the order in question under 0. 1, rr. 9, 10 and 13. This is direct authority for the position that trial for purposes of s. 90 2 includes the stages prior to the hearing of the petition, and the word I procedure therein includes power to pass orders in respect of matters number enumerated in s. 92. In Sitaram v. Yograjsingh 1 it was held that Procedure in s. 90 2 and I powers in s. 92 were interchangeable terms, that the procedure applicable under s. 90 2 was wider than what would be applicable to the hearing of a. suit, and that the Tribunal had power in a proper case to order amendment of a petition. In Sheo Mahadeo Prasad v. Deva Sharan 2 , it was held that the application of 0. VI, r. 17 to proceedings before the Tribunal was excluded by section 83 3 of the Act. For the reasons already given, we are unable to agree with this view. We are of opinion that the law was companyrectly laid down in Sitaram v. Yograjsingh 1 , and in agreement with it, we hold that the Tribunal has power in appropriate cases to direct amendment of the petition under, VI, r. 17. It is next companytended for the appellants that even if s.83 3 does number exclude the application of 0. VI, r. 17 to the proceedings before the Tribunal, the exercise of the power under that rule must, nevertheless, be subject to the companyditions prescribed by a. 81 for presentation of an election petition, that one of those companyditions was that it should be presented within the A.I.R. 1953 Bom. 293. A.I.R. 1955 Patna 81. time allowed therefor, and that accordingly numberamendment should be allowed which would have the effect of defeating that provision. The decisions in Maude v. Lowley 1 and Birkbeck and others v. Bullard 1 are relied on in support of this companytention. In Maude v. Lowley 1 , the facts were that an election petition was filed alleging that the successful candidate had employed as paid canvassers residents of the ward, and that the election was, in companysequence, void. Then an application was filed for amending the petition by alleging that residents of other wards were also similarly employed, and that was ordered by Baron Pollock. The companyrectness of this order was questioned on the ground that on the date of the application for amendment a fresh petition on those allegations would be barred, and that therefore the Court had numberjurisdiction to pass the order which it did. In upholding this companytention, Lord Coleridge C. J. observed that section 21 5 gave power to the Court to amend the petition, that that power was subject to the provisions of the Act, that one of those provisions was s. 13 2 , which prescribed- the period within which an election petition companyld be filed, that the power of amendment companyld be exercised only subject to this provision, and that accordingly an amendment which raised a new charge should be rejected if a fresh petition on that charge would be barred on that date. He also observed that the matter was number one of discretion but of jurisdiction. This was followed in Clark v. Wallond 3 . In Birbeck and others v. Bullard 2 the application was to amend the petition by adding a new charge, and it was held tha that companyld number be done after the expiry -of the period of limitation fixed in the Act for filing an election petition, and the decision was put on the ground that the power to grant amendment was subject to the provisions of the Act. On these authorities, it is companytended for the appellants that even if the Tribunal is held to possess a power to order amendments generally under 0. VI, 1 1874 L.R. 9 C.P. 165. 3 1883 52 L.J.Q.B. 321. 2 1885-86 2 Times Law Reports 273. r. 17, an order under that Rule cannot be made when a new ground or charge is raised, if the application is made beyond the period of limitation prescribed for filing election petitions. The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under 0. VI, r. 17 that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or number but would number affect the jurisdiction of the companyrt to grant it in exceptional circumstances as laid down in Charan Das v. Amir Khan 1 . But this is to ignore the restriction imposed by s. 90 2 that the procedure of the Court under the Code of Civil Procedure in which 0. VI, r. 17 is companyprised, is to apply subject to the provisions of the Act, and the rules, and there being numberpower companyferred on the Tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited by s. 81 and r. 119 must companytravene those provisions and is, in companysequence, beyond the ambit of authority companyferred by s. 90 2 . We are accordingly of opinion that the companytention of the appellants on this point is well-founded, and must be accepted as companyrect. The result of the foregoing discussion may thus be summed up Under s. 83 3 the Tribunal has power to allow particulars in respect of illegal or companyrupt practices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given. The Tribunal has power under 0. VI, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred. We have number to decide whether on the principles stated above, the order of amendment dated November 28, 1953, was right and within the companypetence of 1 1920 L.R. 47 I.A. 255. the Tribunal. To decide that, we must examine whether what the respondent sought to raise by way of amendment was only particulars in respect of a charge laid in the petition, or whether it was a new charge. The paragraph in the petition relevant to the present question is 7 c , and that has been already set out in extenso. Leaving out the allegations relating to the meetings held at Kakori, what remain of it is only the allegation that respondents I and 2 companyld in furtherance of their election enlist the support of Government servants. The word companyld can only mean that the respondents were in a position to enlist the support of Government servants. It does number amount to an averment that, in fact, they so enlisted their support. It is argued for the respondent that the allegation in para 7 c really -means that the appellants had, in fact, enlisted the support of Government servants, and that that amounts to a charge under s. 123 8 of the Act of procuring the assistance of Government- servants for furtherance of their election prospects. Why then does the petition number state it in plain terms ? The difference between companyld and did is too elementary to be mistaken. The respondent has in other paragraphs relating to other charges clearly and categorically asserted what the appellants did and what their agents did. And why was a different phraseology adopted in para 7 c 9 It is to be numbered that apart from this allegation, the rest of the paragraph is taken up with details of the two meetings at Kakori, and it winds up with the following allegation The respondents 1 and 2 by this device succeeded in creating an impression on the voters that they had the support of the District officials. This suggests that the charge which the respondent sought to level against the appellants was that they moved in public so closely with high dignitaries as to create in the minds of the voters the impression that they were favoured by them. We are unable to read into the allegations in para 7 c as originally framed any clear and categorical statement of a charge under s. 123 8 , or indeed under any of the provisions of the Election law. The respondent does number dispute that the language in which the allegation in para 7 c is companyched does number import that any companyrupt practice had, in fact, been companymitted, but he companytends that this defect is merely one of expression, and that the appellants had understood it companyrectly as meaning companymission of companyrupt practices by them, which is what the respondent meant to assert. It is numberdoubt true that plead- ings should number be too strictly companystrued, and that regard should be had to the substance of the matter and number the form. Even so, what, in substance, is the charge which companyld be gathered from a general and vague allegation that the appellants companyld enlist the support of Government officials ? It should number be forgotten that charges of companyrupt practices are quasi-criminal in character, and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates and judged by that standard, the allegation in para 7 c is thoroughly worthless. The companytention of the respondent that the appellants understood the allegation as meaning that they had companymitted companyrupt practices, is number borne out by the record. In the application which the appellants filed on January 24, 1953, for trial of certain questions as preliminary issues, they stated in para 7 as follows Para 7 c . The allegation companytained in this para is vague and indefinite. It numberhere alleges that the respondent number. 1 and 2 obtained or procured or abetted, or attempted to obtain or procure the assistance of any government servants. No list given. And again, in the objection filed by the appellants to the application of the respondent for amendment, they stated that it was doubtful whether even the original allegation in para 7 c amounted to a major companyrupt practice within s. 123 8 of the Act. The Tribunal does number deal with this aspect of the matter and simply assumes that the petition as presented did raise a charge under s. 123 8 . We are of opinion that this assumption is erroneous and that its finding is vitiated thereby. But even if we are to read companyld in para 7 c as meaning did , it is difficult to extract out of it a charge under s. 123 8 . The allegation is number clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is numberallegation at all that the Government servants did, in fact, assist the appellants in the election. On these allegations, it is difficult to hold that the petition in fact raised a charge under s. 123 8 . It is a long jump from the petition as originally laid to the present amendment, wherein for the first time it is asserted that certain Mukhias numberMukhias are mentioned in the petition assisted the appellants in furtherance of their election prospects, and that thereby the companyrupt practice mentioned in s. 123 8 had been companymitted. The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was number within the power of the Tribunal to allow an amendment of that kind. Counsel for the appellants also companytended that even if the Tribunal had the power under 0. VI, r. 17 to permit an amendment raising a new charge, it did number under the circumstances exercise a sound and judicial discretion in permitting the amendment in question. There is companysiderable force in this companytention. The election petition was filed on June 10, 1952, which was the last date allowed under a. 81 and r. 119. It companytained in para 7 c only the bare bones of a charge under a. 123 8 , assuming that it companyld be spelt out of it. Nothing further is heard of this charge, until we companye to December, 1952, when respondents 4 and 9 who sailed with the petitioner, -filed statements alleging that the appellants had obtained the assistance from Government servants including Mukhias in furtherance of their election prospects. On January 16, 1953, the respondent herein filed a replication in which he sought to weave the above allegations into the fabric of his petition, but the result was a mere patchwork. It should be mentioned that there is numberprovision of law under which a replication companyld be filed as a matter of right, number was there an order of the Tribunal allowing it. On February 25, 1953, the appellants opened their arguments at the hearing of the preliminary issue, and thereafter, with a view to remedy the defects which must have been then pointed out, the respondent filed his present application for amendment. Even that was defective, and had to be again amended. And what is remarkable about this application is that numberat tempt was made to explain why it was made after such long delay and why the new allegations were number made in the original petition. The position taken up by the respondents was that the amendment only made express what was implicit in para 7 c . The Tribunal was of opinion that numberwithstanding all these features, the amendment should be allowed as it was in the interests of the public that purity of elections should be maintained. But then, public interests equally demand that election disputes should be determined with despatch. That is the reason why a special jurisdiction is created and Tribunals are companystituted for the trial of election petitions. Vide the observations of Lord Simonds L.C. in Senanayake v. Navaratne 1 . In the present case, having regard to the circumstances stated above, the order of amendment would be open to grave criticism even if it had been made in an ordinary litigation, and in an election matter, it is indefensible. The strongest point in favour of the respondent is that we should number in special appeal interfere with what is a matter of discretion with the Tribunal. It is number necessary to pursue this matter further, as we are of opinion that the order of amendment dated November 28, 1953, is, for the reasons already stated. beyond the powers of the Tribunal, and therefore must be set aside and the finding based on that amendment that the appellants had companymitted the companyrupt practice mentioned in s. 123 8 of the Act must be reversed. In this view, it becomes unnecessary 1 1954 A.C. 640. to deal with the further companytention of the appellants that there is numberlegal evidence in support of the finding of the Tribunal that they had obtained the assistance of four Mukhias in furtherance of their election prospects. Then there is the question whether the first -appellant has, as held by the Tribunal, again by a majority, companytravened s. 123 7 of the Act. The facts found are that one Ganga Prasad was engaged by the first appellant to prepare three carbon companyies of the Electoral Rolls and was paid Rs. 550/- at the rate of Re. 0-8-0 per hundred voters and likwise, one Viswanath Pande was engaged to enter the names of the voters in printed cards and was paid Rs. 275/- at Re. 0-4-0 per hundred cards. Both these are undoubtedly expenses incurred in companynection with the election and have, in fact, been shown by the first appellant in the return of election expenses against companyumn K. Now the companytention of the respondent which has found favour with the Tribunal is that both Ganga Prasad and Viswanath Pande must be held to have been employed for payment in companynection with the election, and as with their addition, the, number of persons allowed to be employed under Schedule VI has been exceeded, the companyrupt practice mentioned in s. 123 7 of the Act has been companymitted. It is companytended by the Solicitor-General that on the facts found Ganga Prasad and Viswanath Pande cannot be said to have been employed by the first appellant,and that the companyclusion of the Tribunal to the companytrary is based on a misconception of law. Now whether a person is an employee or number is a question of fact, and if there had been any evidence in support of it, this Court would number interfere with the finding in special appeal. But the respondent, on whom the burden lies of establishing companytravention of r. 118, has adduced numberevidence whatsoever, and all that is on record is what the first appellant deposed while he was in the box. He merely stated that Ganga Prasad and Viswanath Pande were asked to do the work on, companytract basis. That is wholly insufficient to establish that there was a companytract of employment of those persons by him. It was argued for the respondent that there companyld be a companytract of employment in respect of piece-work as of time-work, and that the evidence of the first appellant was material on which the Tribunal companyld companye to the companyclusion to which it did. It may be companyceded that a companytract of employment may be in respect of either piece-work or time-work but it does number follow from the fact that the companytract is for piece-work that it must be a companytract of employment. There is in law a well- established distinction between a companytract for services, and a companytract of service, and it was thus stated in Collins v. Hertfordshire Central Council 1 In the one case the master can order or require what is to be done while in the other case he can number only order or require what is to be done but how it shall be done. This Court had occasion to go into this question somewhat fully in Dharangadhara Chemical Works Ltd. v. State of Saurashtra 2 , and it was there held that the real test for deciding whether the companytract was one of employment was to find out whether the agreement was for the personal labour of the person engaged, and that if that was so, the companytract was one of employment, whether the work was time- work or piece-work or whether the employee did the whole of the work himself or whether he obtained the assistance of other persons also for the work.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 6 of 1954. Appeal from the judgment -and order dated the 8th day of June 1951 of Calcutta High Court in Income-tax Reference No. 1 of 1951. J. Kolah and P. K. Ghosh, for the appellant. N. Joshi, Porus A. Mehta and R. H. Dhebar, for the respondent. 1956. May 8. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal with certificate under section 66-A 2 of the Indian Income-tax Act, 1922 from the judgment and order passed by the High Court of Judicature at Calcutta on a reference under section 66 1 of the Act, whereby the High Court answered the referred question in the negative. The appellant is a timber merchant. On 5th February 1930. he obtained a loan of Rs. 1 lakh from the Bank of India on the joint security of himself and one Mamraj Rambhagat. On the same day Mamrai Rambhagat obtained -a loan of Rs. 1 lakh from the Imperial Bank of India., Bombay on the joint security of himself and the appellant. The appellant paid off his loan of Rs. I lakh to the Bank of India but Mamraj Rambhagat failed to make good the amount of his loan to the Imperial Bank of India, Bombay. This sum of Rs. 1 lakh was realised by the Imperial Bank of India from the appellant with interest thereon of Rs. 626 on 24th March 1930. Mamraj Rambhagat failed in his business and his estate went into the hands of the receivers on 25th April 1930. The appellant opened a ledger account in the name of Mamraj Rambhagat and the total amount of Rs. 1,00,626, was debited to this account. The appellant received the dividends from the receivers Rs.31,446 on 30th October 1930, Rs. 9,434 on 25th April 1934 and Rs. 4,716 on 17th May 1938, aggregating to Rs. 45 596 leaving a balance of Rs. 55,030 unpaid, which sum he wrote off as bad debt in the assessment year 1941-42 the account year being 1997 Ramnavmi and claimed as an allowable deduction under section 10 of the Act. The Income-tax Officer disallowed the claim holding that the said loss was a capital loss, and so did the Appellate Assistant Commissioner. It was argued on behalf of the appellant before the Appellate Assis- tant Commissioner that it was the usual custom in Bombay to secure loans on joint security from Banks by persons carrying on business. It was stated that this manner of securing loans on joint security was preferred by the Banks and it was also in the interest of the traders as lower rate of interest was charged, if the loan was on joint security. It was also stated that the appellant used to borrow money on joint security frequently and certain old pro-notes jointly executed were submitted before the Appellate Assis- tant Commissioner. Reference was made to the case of Commissioner of Income-tax, Madras v. S. A. S. Ramaswamy Chettiar 1 , where it was held that it was a custom amongst Nattukottai Chettiars to stand surety-for one another for borrowing from Banks for the purpose of lending out at higher rates of interest and that the loss incurred under the agreement of guarantee by the Chettiar firm should be allowed as a deduction. The Appellate Assistant Commissioner, however, distinguished the case on facts and held that even though the appellant stood surety for Mamraj Rambhagat in companyrse of securing finance for his business of timber, it was the loss of a sum borrowed by another, the sum borrowed was capital in its nature and the loss suffered by the appellant on account of Mamraj Rambhagats failure to pay was a capital loss. On appeal taken by the appellant before the Income Tax Appellate Tribunal, the Tribunal was of the opinion that the Appellate Assistant Commissioner had number expressed any opinion in his order as to whether there was such custom or number number had he asked the appellant to establish the custom. The Tribunal in these circumstances held that -the custom was accepted by the Department. The Tribunal did number see any distinction between the money lending business and timber business which were both financed by this type of borrowing and differing from the Appellate Assistant Commissioner followed the decision in Commissioner of Income-tax, Madras V. S. A. S. Ramaswamy Chettiar supra ., and came to 1 1946 14 I.T.R. 236. the companyclusion that the loss suffered by standing surety was an allowable loss and upheld the companytention of the appellant. At the instance of the respondent the Tribunal stated a case to the High Court under section 66 1 of the Act and referred the following question for its decision- Whether on the facts found the sum of Rs. 55,030 is allowable as a bad debt under the provisions of section 10 2 xi of the Indian Income-tax Act. The said reference was heard by the High Court and in its judgment the High Court held that the Tribunal had proceeded on an erroneous assumption as to the facts of the case and the application of the money. Since numberpart of the loan, which had been taken from the Imperial Bank of India by Mamraj Rambhagat on the joint security of himself and the appellant, was applied to the appellants own business, there was numberquestion of an allowable deduction in relation to the business of the appellant. The High Court held that the Tribunal was in error even in law inasmuch as under section 10 2 xi it is only a trading. or business debt of the trade or business of the appellant, which companyld be claimed as a loss and as the debt claimed was number in respect of the business of the appellant, which -was the business of trading in timber and number of a person carrying on the business of standing surety for other persons, the loss suffered by the appellant was a capital loss and number a business loss at all. Regarding the decision relied upon by the Tribunal, the High Court referred to a later decision in Commissioner of Income-tax, Madras v. S. R. Subramanya Pillai 1 , which held that the earlier decision must be read as companyfined to its peculiar facts and number applicable to business other than money lending business of Nattukottai Chettiars. The High Court, therefore, answered the referred question in the negative. Hence this appeal. The sole question for our determination in this appeal is whether the loss of Rs. 55,030 suffered by the appellant in this transaction was a capital loss or 1 1950 18 I.T R. 85. was a trading loss or a bad debt incurred by the appellant in the companyrse of carrying on his business of timber. It is clear that numberpart of the monies borrowed on the joint security of the appellant and Mamraj Rambhagat from the Imperial Bank of India, Bombay went to finance the timber business of the appellant, but they were all utilised by Mamraj Rambhagat in his own business. These monies were number required to finance the timber business of the appellant, number was the debt due by Mamraj Rambhagat and in respect of which the account was opened by the appellant in his ledger in the name of Mamraj Rambhagat a debt due by Mamraj. Rambhagat to the timber business of the appellant. If any monies had been borrowed by the appellant in his timber business, they would certainly have been his capital and whatever loss he incurred therein would have been his capital loss. The manner in which these monies were sought to be companynected with the timber business and treated as a trading loss or bad debt of the timber business was by showing that it was the custom amongst the persons carrying business in Bombay to borrow monies from Banks on joint security and if A wanted monies for financing his business, he companyld do so by asking B to join him as surety, but he companyld number ask B to join him as such unless he stood surety for B in the loans which B borrowed in his turn from the Bank. A s joining B as surety was thus a companysideration for Bs joining A as surety in his transaction with the Bank and, therefore, although numberpart of the monies borrowed by B came into the business of A, A joined B as surety for the purpose of financing his own business, which he companyld number do without B joining him as surety in the loan which he himself obtained from the Bank for the purpose of financing his own business. The transaction of As joining B as surety in the matter of Bs procuring a loan for the financing of his business was thus an essential operation of the financing of As business and was, therefore, an incident of As business and any loss incurred by A in the transaction companyld thus be treated as a trading loss in the - companyrse of carrying on of As business. The loss incurred by the appellant in the transaction of his joining Mamraj Rambhagat as surety in the loan which Mamraj Rambhagat procured from the Imperial Bank of India companyld, it was urged, thus be treated as a trading loss or bad debt of the appellants timber business. It is necessary, therefore, to see what is the exact nature and scope of the custom said to have been accepted by the Department. The custom stated before the Appellate Assistant Commissioner was that persons carrying on business in Bombay used to borrow monies on joint security from the Banks in order to facilitate getting financial assistance from the Banks and that too at lower rates of interest. A businessman companyld procure financial assistance from the Banks on his own, but he would in that case have to pay a higher rate of interest. He would have to pay a lower rate of interest if he companyld procure as surety another businessman, who would be approved by the Bank. -This, however, did number mean that mutual accommodation by businessmen was necessarily an ingredient part of that custom. A companyld procure B, C or D to join him as surety in order to achieve this objective, but it did number necessarily follow that if A wanted to procure B, C or D to thus join him as surety, he companyld only do so if he in his own turn joined B, C or D as surety in the loans, which B, C of D procured in their turns from the Banks for financing their respective businesses. Unless that factor was established, the mere procurement by A of B, C or D as surety would number be sufficient to establish the custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mamraj Rambhagat as surety in the loan procured by Mamraj Rambhagat from Imperial Bank of India, a transaction in the companyrse of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant. The old pronotes jointly executed by the appellant and others, which were submitted before the Appellate Assistant Commissioner did number carry the case of the appellant far enough and stopped short of proving the custom alleged by the appellant in, its entirety. The transaction in question companyld number, therefore, be. deemed to be one entered into by the appellant in the companyrse of or in carrying on his timber business. Procuring finances for his timber business would numberdoubt be an essential operation in the companyrse of his carrying. on -his business, but the same thing companyld number be predicated of this transaction of his joining Mamraj Rambhagat as surety for procuring Rs. 1 lakh from the Imperia Bank of India, which was wholly to finance Mamraj Rambhagats business and number the timber business of the appellant. Learned companynsel for the appellant laid particular emphasis on the finding by the Appellate Assistant Commissioner that it was in the companyrse of securing finance for the business of timber that he stood surety with Mamraj Rambhagat. This finding merely records the statement of fact, but does number go so far as to establish the custom sought to be relied upon by the appellant. The old pronotes submitted by the appellant before the, Appellate Assistant Commissioner merely related to his own transactions, where he had been joined by others as surety and did number -establish that the others had been similarly accommodated by him in the matters of loans which they had in their turn procured from the Banks. The solitary instance of the appellants having joined Mamraj Rambhagat in the transaction in question companyld number be sufficient to establish the custom sought to be relied upon by him and we do number see any reason to enlarge the scope of the so-called custom beyond what is warranted by the facts as set out in the order passed by the Appellate Assistant Commissioner. The custom among the Nattukottai Chettiars held proved in Commissioner of Income-tax, Madras v. S. A. S. Ramaswamy Chettiar supra was that they stood surety for one another, when they borrowed from Banks for the purpose of lending out at higher rates of interest. It was, moreover, an essential element in the carrying on of a money lenders business that money, which Was thus lent out should be procured and that companyld number be done unless it was borrowed on the joint security of Nattukottai Chettiars, who stood surety for one another. Unless that type of suretyship was resorted to, a Nattukottai Chettiar by himself companyld never procure any monies which he companyld invest in his money lending business. The following passage from the judgment at page 238 is every apposite--------------- It is their custom to borrow from banks for the purpose of lending out the sums so obtained at higher rates of interest. The banks require such overdrafts to be guaranteed by other Chettiars. The Chettiars stand surety for one another in these borrowings. If a Chettiar refused to accommodate another moneylender in this way, he would number be able to obtain a guarantor for his own essential borrowings. The assessee in this case borrowed money on the guarantee of others and in turn stood surety for other Chettiars. There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom proved in that case, both of which are wanting in the present case before us. It is significant to numbere that this case was distinguished by the learned Judges of the Madras High Court in Commissioner of Income-tax, Madras V. S. B. Subramanya Pillai supra , where it was held that that decision must be companyfined to its own peculiar facts and does number apply to businesses other than Nattukottai Chetty money lending business. In that case the assessee was a bookseller, who borrowed from time to time jointly with one L a sum of Rs. 16,200 out of which the assessee took a sum of Rs. 10,450 for his business needs and L took the balance. The joint borrowing was necessitated by the business needs of both the borrowers and by the insistence of money lenders, who required the joint security of the two persons. L failed in his business and the assessee had to repay the creditors the whole of the joint borrowing. The assessee had also to spend a sum of Rs. 658 in an unsuccessful attempt to recover the amount due from L. The assessee Claimed to deduct the sum of Rs. 658 and also the sum of Rs. 520495 which he had to pay the creditors on account of Ls share of the joint loan in the companyputation of his business profits. It was held that the assessee was number entitled to deduct these sums in the companyputation of his business profit either under sec- tion 10 2 xi or section 10 2 xv or as business loss. This case furnishes the proper analogy to the present case and points to the right companyclusion in regard to the claim of the appellant. The following passage from the judgment of the learned C. J. under appeal companyrectly sums up, in our opinion, the whole position- The debt must therefore be one which can properly be called a trading debt and a debt of the trade, the profits of which are being companyputed. Judged by that test, it is difficult to see how The debt in the present case can be said to be a debt in respect of the business of the assessee. The assessee is number a person carrying on a business of standing surety for other persons. Nor is he a money-lender. He is simply a timber-merchant. There seems to have been some evidence before the Appellate Assistant Commissioner that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person. But it is number established, number does it seem to have been alleged, that he in his turn was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit. Even if such, had been the case, any loss suffered by reason of having to pay a debt borrowed for the benefit of another, would have been a capital loss to him and number a business loss at all.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 196 to 201 of 1953. Appeals from the judgment and decrees of the Punjab High Court dated December 30, 1949, in Civil Regular Appeals Nos. 1567, 1568, 1569, 1570, 1573 an 1574 of 1942 arising out of the decrees dated July 31, 1942, of the Court of the District Judge, Hoshiarpur in Appeals Nos. 104/35 of 1941- 42,101/32 of 1941, 103/34 -of 1941/42 15/73 of 1941, 102/33 of 1941/42 and 120 of 1941 arising out of the decrees dated July 24, 1941, of the Court of Subordinate Judge, 4th Class, Kangra in Suits Nos. 544, 548, 545, 547, 546 and 549 of 1940. Bang Beharilal and K. R. Chaudhury, for the appellant. Ganpat Rai, for the respondent. M. Sikri, Advocate-General for Punjab, Jindra Lal and R. Dhebar, for the Intervener State of Punjab . 1956. October 23. The Judgment of the Court was delivered by K. DAS J.-These are six appeals by the plaintiff Raja Rajinder Chand, the superior landlord alamalik of Nadaun Jagir in the district of Kangra. He brought six suits in the Court of the Subordinate Judge of Kangra for a declaration that he was the owner of all pine chil-pinus longifolia trees standing on the lands of the defendants within the said Jagir and for a permanent injunction restraining the latter from interfering with his rights of ownership and extraction of resin from the said trees. He also claimed specified sums as damages for the loss caused to him from the tapping of pine trees by different defendants from March 24, 1940, up to the date when the suits were brought. The defendants, who are the adnamaliks inferior landlords , pleaded that they were the owners in possession of the lands on which the trees stood, that the trees were their property, and that the plaintiff had numberright to the trees number had he ever exercised any right of possession over them. Three questions arose for decision on the pleadings of the parties. The first question was-whether all pine trees standing on the lands in suit were the property of the plaintiff, i.e., the present appellant. The second question was one of limitation, and the third question related to the quantum of damages claimed by the appellant. The learned Subordinate Judge, who dealt with the suits in the first instance, held that the present appellant had failed to prove his ownership of the trees. He further held that the suits were barred by time. On the question of damages, he held that if the appellants claim to ownership of the trees were established, some of the defendants in four of the suits would be liable for small amounts of damages. In view, how- ever, of his findings on the questions of ownership and limitation, lie dismissed the suits. Raja Rajinder Chand then preferred appeals from the judgment and decrees of the learned Subordinate Judge, and the appeals were heard by the learned District Judge of Hoshiarpur. The latter reversed the finding of the ,learned Subordinate Judge on the question of ownership and held that the present appellant had established his right to the trees in question. He also reversed the finding of the learned Subordinate Judge on the question of limitation, but accepted his finding as to damages. Accordingly, he allowed the appeals, set aside the judgment and decrees of the learned Subordinate Judge, and gave the appellant the declaration and order of injunction he had asked for, as also damages in four of the suits as assessed by the learned Subordinate Judge. The defendants then preferred second appeals to the Punjab High Court. On the main question as to whether the present appellant had been able to establish his right to the trees, the learned Judges of the High Court differed from the learned District Judge and, agreeing with the learned Subordinate Judge, held that the present appellant bad number been able to establish his right to the trees. On the question of limitation, however, they agreed with the learned District Judge. In view of their finding that the appellant bad failed to establish his right to the trees, the appeals were allowed and the suits brought by the appellant were dismissed. The High Court gave a certificate that the cases fulfilled the requirements of sections 109 c and 110 of the Code of Civil Procedure. These six appeals have companye to this Court on that certificate. We have heard these appeals together, as the questions which arise are the same. The present judgment will govern all the six appeals. The short but important question which arises in these appeals is whether the present appellant has been able to establish his right to all pine chil trees standing on the suit lands of the defendants. The question is of some importance, as it affects the rights of ala and adna maliks in Nadaun Jagir. The res- pondents have number companytested before us the companyrectness of the finding of two of the Courts below that the suits were number barred by time therefore, the question of limitation is numberlonger a live question and need number be further referred to in this judgment. Though the main question which arises in these six appeals is a short one, a satisfactory answer thereto requires an examination of the history of the creation of Nadaun Jagir, of the land revenue and revisional settlements made of the said Jagir from time to time, and of the various entries made in the record-of-rights prepared in the companyrse of those settlements. Before we advert to that history, it is necessary to indicate here the nature of the claim made by the present appellant. The plaints of the six suits were very brief and did number give sufficient particulars of the claim made by the appellant. We may take the plaint in Suit No. 544 of 1940 by way of an example in para 1 it was stated that the land in question in that suit was in tappa Badhog and the appellant was the superior landlord thereof then came para 2 which. said- The land is situate in Nadaun Jagir. All the pine trees standing on the aforesaid land belong to the plaintiff. He alone enjoys benefit of those trees. This has always been the practice throughout. In a later statement of replication. dated October 26, 1940, the plaintiff-appellant gave some more particulars of his claim. The learned Subordinate Judge, who tried the suits in the first instance, observed that the present appellant based his claim to ownership of the trees on three main grounds first, on the ground that the land itself on which the trees stood belonged formerly to the ancestors of the present appellant namely, the independent rulers of Kangra and they gave the land to the ancestors of the adna maliks but retained their right of ownership in all pine trees secondly, after the companyquest of Kangra by the British, the rights of ownership in the pine trees belonged to the British Government and the rights were assigned to Raja Jodhbir Chand, the first grantee of Nadaun Jagir and thirdly, the right of the appellant in the trees had been vouchsafed by the entries made in the Wajib-ul-arz and recognised in several judicial decisions. The Courts below companysidered the claim of the appellant on the aforesaid three grounds, and we propose to companysider these grounds in the order in which we have stated them. It is number necessary to advert to the history of the creation of Nadaun Jagir so far as it is relevant for companysidering the claim of the appellant on the first two grounds. Admittedly, the suit lands lie in Badhog and Jasai tappas companyprised within the Jagir of Nadaun in the district of Kangra. The last independent ruler of Kangra was Raja Sansar Chand who died in the year 1824. Raja Sansar Chand was a Katoch Rajput and had children from two women one of them, who was a Katoch lady, was his properly married wife and Raja Sansar Chand bad a son by her, named Raja Anirudh Chand. The other woman was of the Gaddi tribe and by her Raja Sansar Chand had a son, named Raja Jodhbir Chand. The great antiquity of the Katoch royal line is undoubted, and the history of the Kangra State from the earliest times right up to its companyquest by the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District Gazetteer 1924-25 at pp. 52 to 76. We are number companycerned with that history prior to the time of Raja Sansar Chand. The Gazetteer states p. 75 that Raja Sansar Chand was for 20 years the lord paramount of the hills and even a formidable rival to Ranjit Singh himself but his aggressive nature led him on in his bold designs and be fell at last a victim to his own violence. With him the glory of the Katoch line passed away and what remained to his son Anirudh Chand was little more than a name. Anirudh Chand was summoned several times to the Sikh camp and on the third occasion of his visit to that- camp, be was met by a very unacceptable dein and Raja Sansar Chand had left two daughters, and Raja Dhian Singh of Jamun, one of the principal officers of Maharaja Ranjit Singh, asked one of the daughters to be given in marriage to his son, Hira Singh. Anirudh Chand was afraid to refuse, though in reality he regarded the alliance as an insult to his family honour because by immemorial custom a Katoch Rajas daughter may number marry any one of lower rank than her father, i.e., a Raja or an heirapparent. Anirudh Chand was a Raja in his own right and the descendant of a long line of kings, while Dhian Singh was a Raja only by favour of his master. Anirudh Chand prevaricated for some time but he was determined to sacrifice everything rather than companypromise the honour of his ancient line. He secretly sent away his family and property across the Sutlej and on hearing that Maharaja Ranjit Singh had started from Lahore for Nadaun, he fled into British territory. Maharaja Ranjit Singh came to Nadaun, and Jodhbir Chand gave his two sisters to the Maharaja. Jodhbir Chand was then created a Raja, with Nadaun and the surrounding companyntry as his Jagir. Mian Fateh Chand, younger brother of Raja Sansar Chand, offered his granddaughter to Raja Hira Singh. He was also rewarded with the gift of a Jagir known as the Rajgiri Jagir and received the rest of the State on lease on favourable terms. His son, however, failed to pay the amount agreed upon. The State was then annexed to the Sikh kingdom, and only the Rajgiri Jagir was reserved for the royal family. Thus by 1827-28 Kangra had ceased to be an independent principality and was to all intents and purposes annexed to the Sikh kingdom, the son of Mian Fateh Chand and Raja Jodhbir Chand occupying merely the position of Jagirdars tinder the Sikhs, The present appellant, Raja Rajinder Chand, is a direct lineal descendant of Raja Jodhbir Chand, being fourth in the line of descent. Then followed the Sikh wars and the establishment of British rule in Kangra. The first Sikh war ended in March 1846, in the occupation of Lahore and the cession to the British Government of the Jullunder Doaba and the hills between the Sutlej and the Ravi. In 1848, the second Sikh war began and Raja Parmudh Chand, one of the sons of Raja Anirudh Chand, raised the standard of rebellion in Kangra. The rebellion however failed. Meanwhile, Jodhbir Chand remained companyspicuous for his fidelity to the British Government both in the Sikh war and in the Katoch insurrection he did good service to the British. He obtained a Sanad from the British Government in 1846 A companyy of that Sanad was number available, but a companyy of a Sanad granted on October 11, 1848, which renewed and clarified the earlier Sanad, was produced and exhibited on behalf of the present appellant. We shall have occasion to refer to this Sanad in detail at a later stage. Having thus indicated in brief the earlier history with regard to the creation of Nadaun Jagir in favour of Raja Jodhbir Chand, we number proceed to companysider the first two grounds of the claim of the appellant. The learned Judges of the High Court held, in agreement with the learned Subordinate Judge, that the present appellant companyld number claim the sovereign rights of Raja Sansar Chand who was an independent ruler of Kangra. For this finding they gave two reasons firstly, Raja Jodhbir Chand was an illegitimate son of Raja Sansar Chand and companyld number succeed to the rights of the Raja secondly, whatever rights Raja Sansar Chand had as an independent ruler of Kangra came to an end so far as his descendants were companycerned with the annexation of his territory by the Sikhs, and Raja Jodhbir Chand merely got an assignment of land revenue to the tune of Rs. 30,000 by the grant. of Nadaun Jagir by Maharaja Ranjit Singh. We accept these as good and companyvincing reasons for discountenancing the claim of the appellant that the sovereign rights of the independent rulers of Kangra in respect of all royal trees including pine trees within Nadaun Jagir had companye down to him. For the purposes of these cases we may accept the position, in support of which there is some historical material, that Raja Sansar Chand had a right to all royal trees including pine trees within his territory but it is clear to us that neither Raja Jodhbir Chand number the present appellant succeeded to the rights of the independent rulers of Kangra. Raja Jodhbir Chand was a grantee under a grant first made by Maharaja Ranjit Singh and then by the British Gov- ernment. The precise terms of the grant made by Maharaja Ranjit Singh are number known. The terms of the grant made by the Governor-General on October 11, 1848, are to be found in the Sanad of that date. Therefore,, the position of the appellant cannot be any higher in law than that of Raja Jodhbir Chand and the claim of the appellant that he bad succeeded, to the rights of the independent rulers of Kangra is clearly unfounded. Dealing with this part of the appellants claim, the learned District Judge, who found in favour of the appellant, relied on certain observations quoted at p. 365, and again at p. 378, of the Kangra District Gazetteer 1924-25 , observations on which learned companynsel for the appellant has also relied. The observations are taken from Mr. Lyalls Settlement Report. Mr. Lyall said Under the Rajas meaning the old Katoch rulers the theory of property in land was that each Raja was the landlord of the whole of his raj or principality, number merely in the degree in which everywhere in India the State is, in one sense, the landlord, but in a clearer and stronger degree Each principality was a single estate, divided for management into a certain number of circuits. The waste lands, great or small, were the Rajas waste, the arable lands were made up of the separate holdings of his tenants. The rent due from the holder of each field was payable direct to the Raja, unless he remitted it as an act of favour to the holder, or assigned it in Jagir to a third party in lieu of pay, or as a subsistence allowance Every several interest in land, whether the right to cultivate certain fields, to graze exclusively certain plots of waste, work a water-mill, set a net to catch game or hawks on a mountain, or put a fish-weir in a stream, was held direct of the Raja as a separate holding or tenancy. The incumbent or tenant at the most called his interest a warisi or inheritance number maliki or lordship. Mr. Lyall further observed that all rights were supposed to companye from the Raja several rights, such as holdings of land, etc., from his grant others, such as rights of companymon, from his sufferance. At p. 377 of the Gazetteer a summary is given of the companyditions of land tenure under the rule of the Katoch Rajas. It is stated that there were two rights in the soil recognised under the Rajas rule-the paramount right of property which was vested in the Raja and the right of cultivation derived by grant from the Raja, which was vested in the cultivators. The first right extended to the whole of the principality the second primarily extended only to the plot specified in the grant, but carried with it further rights of companymon in adjacent waste. It is then observed that this system of land tenure came down practically unchanged until the introduction of British rule, and though the period of Sikh dominion intervened, the Sikhs did number appear to have altered the system. The learned District Judge relied on the aforesaid observations for his finding that the appellant had the ownership of all royal trees in accordance with the system of land tenure which prevailed during the time of the old Rajas. In our view, the learned District Judge was in error with regard to this part of the claim of the appellant. Mr. Lyall began his settlement work in 1865 and his report was dated July 30, 1872. He companytinued and revised the earlier settlement work of Mr. Barnes. It is worthy of numbere that neither Mr. Barnes number Mr. Lyall undertook any actual settlement operations in Nadaun, though Mr. Lyall gathered very valuable historical data regarding the companyditions of land tenure which prevailed in the district of Kangra under the old Katoch Rajas. It is one thing to say that the system of land tenure prevailing under the old Katoch rulers companytinued in spite of the Sikh interregnums, but it is quite a different thing to say that Raja Jodhbir Chand, the grantee of a Jagir, succeeded to the rights of the in- dependent Katoch rulers. The rights of the last independent Katoch ruler, under the system of land tenure which prevailed at the time, passed first to the Sikhs who became the rulers of Kangra and then to the British after the Sikh wars. The learned District Judge failed to appreciate the distinction between the sovereign rights of an independent ruler and the rights of a grantee under a grant made by the sovereign ruler. It is pertinent to quote here the following observations of Lord Dunedin in Vajesingji Joravarsingji v. Secretary of State for India 1 When a territory is acquired by a sovereign State for the first time that is an act of State. It matters number how the acquisition has been brought about. It may be by companyquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal companyrts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him numberhing. Mr. Douie in his Punjab Settlement Manual 1899 said P. 69 The Sikhs drove the hill Rajas of Kangra into exile or degraded them into mere Jagirdars, and the British Government when it took over the companyntry did number restore them to their old position. The question as to whether the sovereign ruler having a right in all royal trees made a grant of that right to Raja Jodhbir Chand or surrendered that right in favour of Raja Jodhbir Chand or any of his successors-in-interest is a different question which will depend on the terms of the grant or on other evidence showing that the right had been surrendered in favour of the appellant or his predecessors- in-interest. That is a question which we shall presently discuss. The learned District Judge was however wrong in thinking that, according to the system of land tenure which prevailed under the old Rajas or, under the Sikhs, Raja Jodhbir Chand got any right to all pine trees within Nadaun Jagir. 1 1924 L.R. 51. I.A. 357, 360. That brings us to the second ground and to a companysideration of the terms of the Sanad dated October 11, 1848, on which also the appellant based his claim. The Sanad was in these terms Fresh Sanad re Settlement upon Raja Jodhbir Chand Katoch of the villages named hereinafter, situate in Taalluqa Nadaun, possessed by him. Whereas the mountainous companyntry together with the Doaba tract had companye under the occupation of the British Company in pursuance of the treaty which took place between the British Government and the Sirkar of Lahore on March 9, 1846 The Jagir of Choru, Bara, etc., situate in the Ilaqa of Nadaun the name of each Tappa whereof together with the number of its villages and its Jama is given herein below and the total Jama whereof was Rs. 26,270/10/3 per annum approximately, i.e., as much of the Ilaqa of Nadaun as was in the possession of the said Raja at the time of the companymencement of tumult of battle whether less or more than the present one, has been granted in perpetuity, generation after generation, to Raja Jodhbir Chand and his male legitimate, descendants who are number from the womb of a slave girl under the orders of the Most Generous Gracious, Exalted and Excellent Nawab Sir Henry Hardinge G.C.B. Governor- General, ruler of the territory of India, companymunicated in writing in English bearing the signature of Mr. Edward, Deputy Chief Secretary to His Excellency, in reply to the Commissioners report No. 147, dated July 24, 1847, and also as companytemplated in the previous order of the Nawab Governor- General, dated August 7, 1846, subject to the following companyditions- In numberway shall criminal jurisdiction in respect of the said Ilaqa vest in the Raja Sahib. The entire administration and power of hearing every sort of companyplaint between the Riaya subjects and the said Raja shall remain in the hands of the British Governments officers. The Raja Sahib shall number be at liberty to receive on any pretext Mahsul for any companymodity from any I Mahajan and trader or from the Riaya subjects by way of Zakat octroi , or anything on account of excise and intoxicants. He shall receive only revenue from the Riaya living in the villages of his Jagir according to the British Governments rules of practice. In case of companytravention of the said rules of practice cash shall be fixed by the Government for the said Raja Sahib or his descendants. After the death of the said Raja Sahib this Jagir shall be divided among his real sons according to the practice followed by Hindus. It shall number devolve on his descendants from a slave girl. It shall be essential for the Raja Sahib to companystruct at his own expense public roads, eleven cubits in width, in his Ilaqa. It is proper for the Raja Sahib to be always ready to serve the Government wholeheartedly and to bear good moral character. Hence it is obligatory on the said Raja Sahib number to set his foot on the borders of others beyond his own. He should treat this Sanad as a Sanad absolute. Previously on September 22, 1846, a Sanad was issued by the Exalted Henry Montgomery Colonel Lawrence from Simla without thorough enquiry and without the name of each village being entered therein. In that Sanad the entire Jama is shown to be Rs. 32,000 approximately. According to the statements of officials of the Raja Sahib the said Jama includes amounts on account of excise, Bhum Chari cattle grazing etc. That was found to be wrong. Now the present Sanad with the name of each Tappa and the number of villages and Jama thereof being entered in it is issued by this Court subject to the above mentioned companyditions after an enquiry having been made and a report having been submitted to the Nawab Governor- General. Appended to the Sanad was a list of tappas and villages companyprised within the Jagir of Nadaun. The list also mentioned in the third companyumn the amount of Jama for each tappa. The question number is whether the aforesaid Sanad was a grant primarily of land revenue or it made a grant of other royal rights including the right to all pine trees which is the particular right under companysideration in the six suits brought by the appellant. It is, we think, well settled that the ordinary rule applicable to grants made by a subject does number apply to grants made by the sovereign authority and grants made by the Sovereign are to be companystrued most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the company- struction of the document before us thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect and the operative part, if plainly expressed, may take effect numberwithstanding qualifications in the recitals. In cases where the grant is for valuable companysideration, it is companystrued in favour of the grantee, for the honour of the Sovereign and where two companystructions are possible, one valid and the other void that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereigns profit see para 670 at p. 315 of Halsburys Laws of England, Vol. VII, s. 12, Simonds Ed. . It is worthy of numbere that so far as the lands in possession of tenants or subjects were companycerned, the Sanad did number grant any right other than the right to receive revenue companydition No., 2 of the Sanad made it quite clear that the grantee would receive only revenue from the subjects living in the villages of his Jagir according to the British Governments rules of practice, and that the grantee was number at liberty to receive on any pretext mahsul for any companymodity from any Mahajan or trader or any octroi, etc. from any of the subjects. If the intention was to grant the right to pine tree standing on the lands of the subjects, one would expect it to be mentioned in companydition No. 2. The mention of the Jama in the Sanad is also significant. In the earlier Sanad the entire Jama was shown to be Rs. 32,000, because according to the statements of the officials of the Raja Sahib, the said Jama included amounts received on account of cattle grazing, etc. that was found to be wrong and the companyrect Jama was found to be Rs. 26,270-10-3. The Sanad companycluded with these words Now the present Sanad with the name of each tappa and the number of villages and Jama thereof being entered in it is issued subject to the above mentioned. companyditions, etc. In the recital portion of the Sanad also it was stated that the Jagir of certain tappas, together with the number of villages companyprised within the tappas and the Jama mentioned in the list, the total Jama being Rs. 26,270-10-3, was granted to Raja Jodhbir Chand. The other-conditions subject to which the grant was made showed that numbersovereign rights were granted to the Jagirdar. In para 69 at p. 96 of his report MrLyall gave a list of the principal Jagirs of Kangra and stated that Raja Jodhbir Chand had a Jama or revenue demand of Rs. 36,079 in perpetuity he saidOut of the total jama, Rs. 6,079 are the assessment of assigned Khalsa lands which the Raja pays to Government as nazarana Rs. 33,000 is the value of the grant, but the Raja puts his companylection at Rs. 30,000 only, exclusive of Khalsa tikas. The aforesaid remarks, made number very long after the grant, also support the view that the grant was primarily an assignment of land revenue and whatever other rights might have been included, the right to all pine trees on cultivated lands of the subjects was number within the grant. We agree therefore with the High Court that on a true and proper companystruction of the Sanad, it is impossible to spell out of its terms a grant in favour of Raja Jodhbir Chand of the right to all pine trees on cultivated and proprietary lands. We proceed number to examine the third ground of the claim of the appellant, viz., that part of his claim which is based on the entries in the Wajib-ul-arz of 1892-93 Ex. P-5 , 1899-1900 Ex. P-6 and 1910-1915 Ex. P-4 and other companynected documents. This part of the claim of the appellant has been the most companytroversial and difficult to determine. The learned Subordinate Judge expressed the view that the aforesaid entries did number help the appellant, because they related to pine trees standing either on uncultivated waste lands or nautor recently reclaimed lands and number to such trees on proprietary and cultivated lands. The learned District Judge held on appeal that in the Wajib-ul-arz of 1892-93 Ex. P-5 all pine chil trees were held to be the property of Government this led to a dispute between the Raja and Government, and in the Wajib-ul-arz of 1899-1900 Ex. P-6 and subsequent documents, an entry was made in favour of the Raja showing that Government had relinquished or surrendered their right to the Raja. He did number agree with the learned Subordinate Judge that the entries related to pine trees standing on waste or reclaimed lands only. The learned Judge who delivered the leading judgment of the High Court gave and companysidered a long string Of quotations from many documents and then came to the companyclusion that the authority of the Wajib-ul-arz entries was open to doubt and the Raja had failed to make out his claim the learned Judge did number clearly find however if the entries related to waste and re- claimed lands only. Learned companynsel for the appellant has very strongly submitted before its that the view of the learned District Judge was companyrect and should have been accepted by the High Court learned companynsel for the respondents has argued, on the companytrary, that the trial Judge and the learned Judges of the High Court came to a definite finding, which he has characterised as a finding of fact, with regard. to the Wajib-ul-arz entries and this Court should number go behind that finding. We do number think that these appeals can be disposed of on the short ground that this Court does number numbermally go behind a companycurrent finding of fact. Indeed, in respect of the Wajib-ul-arze entries, there is numberconcurrent finding in these cases the trial Judge thought that the entries related to waste and recently reclaimed lands, whereas the High Court doubted the very authority of the entries. Moreover, the question whether from the Wajib-ul- arz entries an inference of surrender or relinquishment of a sovereign right by Government can be properly drawn is number a pure question of fact, depending as it does on the true scope and legal effect of those entries. We cannot, by resorting to a short cut as it were, relieve ourselves of the task of examining the Wajib-ul-arz entries and companysidering their true scope and legal effect. We have already referred to Mr. Barnes Settlement 1850-52 and pointed out that he did number undertake any actual settlement operations in Nadaun. The next person who dealt with the settlement of Kangra was Mr. Lyall, afterwards Sir James Lyall, Lt. Governor of the Punjab. He began his work in 1865 and wrote his report in 1872. He also did number undertake any settlement of Nadaun. Alex. Anderson was the next person who dealt with the settlement of Kangra. By Notification No. 25 dated January 26 1888 a general re- assessment of the land revenue of Kangra district was ordered and by Notification No. 26 of the same date a preparation of the record-of-rights in the Jagirs of Guler, Siba and Nadaun was undertaken. Mr. OBrien undertook the settlement, but died on November 28, 1893 and it was left to Mr. Anderson to write the report. It may be stated here that Mr. Anderson wrote two reports one was the Forest Settlement Report of 1887 and the other was the Revised Settlement Report of Kangra of 1897. On April 27, 1910 two other numberifications were published, directing a revision of the existing record-of-rights in Dera and Hamirpur Tehsils Nadaun being within Hamirpur Tehsil . As a result, Messrs Middleton and Shuttleworth undertook a revisional settlement, which was the Settlement of 1910-15. We have in these cases to deal with the entries made in OBriens Settlement 1892-93 , Andersons Settlement 18991900 , and the Settlement of Messrs Middleton and Shuttleworth 1910- 15 . Before dealing with the actual entries made, it is necessary to refer to a few more matters arising out of the settlement operations of Messrs Barnes and Lyall. The expressions ala-malik and adna-malik have been used often in the companyrse of this litigation. What do those expressions mean? In Mr. Douies Punjab Settlement Manual 1930 edition it is stated in para 143 Where the proprietary right is divided the superior owner is known in settlement literature as ala malik or talukdar, and the inferior owner as adna- malik In cases of divided ownership the proprietary profits are shared between the two classes who have an interest in the soil. How this distinction arose, so far as the record-of-rights in the Jagirs are companycerned, appears from para 105 at p. 60 of Mr. Andersons report. Mr. Anderson said The first great question for decision was the status of the Raja and of the people with respect to the land, which was actually in the occupancy of the people, and next with respect to the land number in their actual occupancy, but over which they were accustomed to graze and to do certain other acts. Mr. OBrien decided that the Raja was superior proprietor or Talukdar of all lands in his Jagir, and the occupants were companystituted inferior proprietors of their own holdings and of the waste land companyprised within their holdings as will be shown hereafter be never fully companysidered the rights in waste outside holdings. The general grounds fir the decision may be gathered from Mr. Lyalls Settlement Report and from the orders on the Siba Summary Settlement Report, but I quote at length the principles on which Mr. OBrien determined the status of occupants of land, number merely because it is necessary to explain here the action that he took, but also in order that the Civil Courts which have to decide questions as to proprietary rights may know on what grounds the present record was based. Mr. Anderson then quoted the following extract from Mr. OBriens assessment report to explain the position In places where the possession of the original occupants of land was undisturbed, they were classed as inferior proprietors but where they had acquired their first possession on land already cultivated at a recent date, or where the cultivators had admitted the Rajas title to proprietorship during the preparation and attestation of the Jamabandis, they were recorded as tenants with or without right of occupancy as the circumstances of the case suggested In deciding the question old possession was respected. Where the ryots had been proved to be in undisturbed pos- session of the soil they have been recorded as inferior proprietors. The same principles were followed in Nadaun long possession with or without a patta or lease from the Raja was the test for recording the ryot as an inferior proprietor adna- malik . Bearing in mind the aforesaid distinction between ala-malik and adna-malik, we proceed number to examine the actual entries made in the Wajib-ul-arz of 1892-93 Ex. P-5 , of 1899-1900 Ex. P-6 and of 1910-15 Ex. P-4 . In Ex. P-5 the relevant entry in para 11 was The owners shall, however, have numberright to pine trees. They can neither cut them number get the same without permission, for it has been laid down in the Forest Settlement Reports that the Raja Sahib gave leases to reclaim such lands whereon the Government jungles, i.e., the Government pine trees exist. For this reason, the Government maintained their right to the pine trees. see para. 78 of the English report regarding jungles,. . In Ex. P-6 the relevant entry was- Except the chil pine trees all the trees situated in the Khata of any person in the Tikas of the Jagir are the property of the owner of the Khata. The chil trees growing in such Khatas in the Tikas of the Jagir are the property of Raja Sahib. In Ex. P-4 the entry was- Excepting the pine trees all the trees standing in the Khata of any person in the Tikas of the Jagir save those proprietary lands the trees whereof have been held belonging to the Government during the recent Settlement and which have been mentioned above are the property of the owner of the Khata. In the Tikas of Jagir. all the- pine trees of such Khatas excepting those standing on such proprietary lands, and which have been held to be the property of the Government during the recent settlement and mention whereof has been made above are the property of Raja Sahib. The question-before us is as to the true scope and legal effect of these entries. Do they establish a grant of the right to chil trees or, what is the same thing, a surrender of that right, in favour of the Raja by Government? In these cases we are number companycerned with trees on public waste lands, number with forest trees and as the High Court has pointed out, we do number know if the lands in suit were initially private waste or recently reclaimed lands. The Jamabandis show that they are proprietary and cultivated lands of adna maliks. Therefore, the question before us is the right to chil trees on proprietary and cultivated lands in possession of adna maliks. It is number disputed that under s. 31 of the Punjab Land- Revenue Act, 1887, Wajib-ul-arz is a part of the record-of- rights, and entries made therein in accordance with law and the provisions of Ch. IV of the Act and the rules thereunder, shall be presumed to be true vide s. 44 . The Wajib-ul-arz or village administration paper is a record of existing customs regarding rights and liabilities in the estate it is number to be used for the creation of new rights or liabilities. see para 295 of the Punjab Settlement Manual, pp. 146-147,1930 ed. . In appendix VIII of the Settlement Manual, Section E, are companytained instructions with regard to the Wajib-ul-arz and instruction No. 2 states The statement shall number companytain entries relating to matters regulated by law, number shall customs companytrary to justice, equity or good companyscience, or which have been declared to be void by any companypetent authority, be entered in it. Subject to these restrictions, the statement should companytain information on so many of the following matters as are pertinent to the estate The rights of cultivators of all classes number expressly provided for by law for instance, rights to trees or manure, and the right to plant trees and their customary liabilities other than rent. The rights of Government to any nazul property,, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products, and other accessory interest in land included within the boundaries of the estate. Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, number being a usage relating to succession and transfer of landed property. In the cases before us, the appellant did number base his claim on custom, though referring to his right be said in his plaint-this has been the practice throughout. What he really meant by practice was the land system prevailing under the old independent Katoch rulers. We have already held that the appellant did number get the sovereign right of the independent Katoch rulers number did the grant made in 1848 give him any right to the royal trees. The entry in the Wajib-ul-arz of 1892-93 Ex. P-5 is number really in his favour it states that trees of every kind shall be companysidered to be the property of the owners adna-maliks , but the owners shall have numberright to pine trees for this last part of the entry which is somewhat companytradictory of- the earlier part, a reference is made to para 78 of Andersons Forest Settlement Report as authority for it. That paragraph, however, stated in clear terms-No orders have been passed by main regard to trees on fields, as the present enquiry extended only to the waste land. It is obvious that the entry in the Wajib-ul-arz of 1892-93 went much beyond what was stated in para 78 of Mr. Andersons report, and so far as the right to pine trees on proprietary and cultivated lands was companycerned, the statement made a companyfusion between Government jungles, recently reclaimed land and proprietary land, On its own showing, the entry was number the statement of an existing custom, because it referred to para 78 of the Forest Settlement Report far less did it show any surrender or relinquishment of a sovereign right by Government in favour of the Raja. Indeed, it is difficult to understand how the surrender or relinquishment of such -a right can be the subject of a village custom or can be within the scope of an entry in the Wajib-ul-arz. The original grant in favour of Raja Jodhbir Chand was by means of a Sanad, and one would expect any additional grant or surrender to be embodied in a similar document. At any rate, if the intention of Government was to surrender a sovereign right in favour of the Raja, one would expect such intention to be expressed in unambiguous language. In Khalsa villages, Government did surrender their right to trees on Shamilat lands of adna-maliks on the authority of letter No. 347 of January 6, 1867. Taking the most favourable view for the appellant, the entries in the Wajib- ul-arz in these cases can be said to express the views of certain revenue authorities as to the rights of the Raja or the intention of Government but the views of the revenue authorities as to the effect or companystruction of a grant or the intention of Government in respect of a grant, do number companyclude the matter or bind the civil Courts. See Rajah Venkata Narasimha Appa Row Bahadur v. Rajah Narayya Appa Row Bahadur 1 . The same companyments apply to the Wajib-ul-arz of 1899-1900 Ex. P-6 and of 1910-15 Ex. P-4 . They numberdoubt say that the pine trees on the lands companyprised within the Khatas of adna-maliks are the property of the Raja Sahib. None of them indicate, however, on what basis the right to chil trees on proprietary and cultivated lands of the adna-maliks is to be held the property of the Raja Sahib. If the revenue authorities made the entries on the basis of the land system of the old Katoch rulers or on the basis of the Sanad of 1848, they were clearly wrong. -If, however, there was a surrender by Government of the right in favour of the Raja, one would expect it to be mentioned unambiguously in the entries one 1 1879 L.R. 7 I.A. 38, 48. would further expect the same to be mentioned in the Jamabandis Exs. D-7 and D-8 of the adna-maliks. The Jamabandis do number, however, show any restriction on the rights of adna-maliks with regard to the trees on their lands. A reference may be made here to another document Ex. D-2 which is an extract of the Wajib-ul-arz para 12 of 1892-93, dealing with the rights of ala-maliks and adna- maliks. The entry shows that the Raja Sahib was to get 15 per cent. on the net revenue in respect of the entire land owned by the adna-maliks as talukdari dues which had been fixed the talukdari dues were fixed to companypensate the Raja Sahib for all sorts of dues, such as banwaziri, domiana, etc. It is improbable that after the fixation of such talukdari dues, a grant of a further right in respect of chil trees on the lands of adna-maliks will be made but will number be specifically mentioned in para 12 of the Wajib- ul-arz, which dealt particularly with the rights of ala and adna maliks. Learned companynsel for the appellant drew our attention to Ex. D-6, an extract of para 11 of the Wajib-ul-arz, of 1914-15, at the bottom of which there is a numbere that the Zamindars adna-maliks were present and every paragraph had been read out to them and the same were companyrect. The argument before us is that the adna-maliks ad- mitted the Wajib-ul-arz of 1914-15 to be companyrect. We cannot accept that argument firstly, we do number think that the endorsement at the bottom of Ex. D-6 is an admission by adna-maliks of the companyrectness of the entries made in other paragraphs of the Wajib-ul-arz, as for example, para 10 Ex. P-4 which related to the rights of Government in respect of the nazul lands, etc. Secondly, even if the endorsement amounts to such an admission as is companytended for by learned companynsel for the appellant, we do number think that it is companyclusive or decisive of the right which the appellant is claiming. Ex. P-2 dated May 27,1886, showed that even so far back as at that date, sonic of the adnamaliks had companyplained that the Rajas men had cut and taken away some chil trees on their lands. It is quite improbable that after such a companyplaint the adna-maliks would admit the right of the ala-malik to chil trees on their lands. In para. 296 of the Punjab Settlement Manual, Mr. Douie observed that the Wajib-ul-arz in the first regular settlements was sometimes a formidable document, but its real value as evidence of village custom was number always proportionate to its length. He A quoted with approval the observations of Sir Arthur Brandreth to the following effect Some -few points have been ascertained in each case, but in general the villagers did number know their customs very well, and when they put their seals to the paper, numberdoubt they thought it very grand, though they did number know what it was about, as they companyld little understand the language. The rules are of two sorts one, the rules laid down by Government, or points on which the whole pargana have the same custom, and, secondly, the special customs of the particular manor these together take up a great number of pages, and the villagers are companyfused by the long companye of rules, and merely say yes, yes and put their seals to. the paper, hoping it is numberhing very dreadful. A large number of decisions in which entries of the Wajib-ul-arz or the Riwaji-i-am and the value to be given to them were companysidered, have been cited before us. In some of them, entries in the Wajib-ul-arz were accepted as companyrect and in others they were number so accepted, numberwithstanding the statutory presumption attaching to the entries under s. 44 of the Punjab Land-Revenue Act, 1887. We do number think that any useful purpose will be served by examining those decisions in detail. The legal position is clear enough. As was observed by the Privy Council in Dakas Khan v. Ghulam Kasim Khan 1 , the Wajib-ul-arz, though it does number create a title, gives rise to a presumption in its support which prevails unless the presumption is property displaced It is also true that the Wajib ul-arz being part of a revenue record is of greater authority than a Riwaji-i-am which is of general application and which is number drawn up in respect of individual villages Gurbakhsh Singh v. Mst. Partapo 1 . Whether the statutory presumption A.I.R. 1918 P.C. 4. 2 1921 I L.R. 2 Lah. 346. attaching to an entry in the Wajib-ul-arz has been properly displaced or number must depend on the facts of each case. In the cases under our companysideration, we hold, for the reasons already given by us, that the entries in the Wajib-ul-arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna-maliks, do number and cannot show any existing custom of the village, the right being a sovereign right number do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja. In our view, it would be an unwarranted stretching of the presumption to hold that-the entries in the Wajib-ul-arz make out a grant of a sovereign right in favour of the Raja to do so would be to hold that the Wajib-ul-arz creates a title in favour of the Raja which it obviously cannot. It is necessary to state here that in the Wajib-ul-arz of 1899-1900 Ex. P-6 there was a reference to certain orders companytained in letter No. 1353 dated March 11, 1897, from the Senior Secretary of the Financial Commissioner. This Wajib- ul-arz also showed that certain amendments were made on May -26, 1914, by an order of Mr. Shuttleworth, the then Settlement Officer. There is a further numbere that the amendment was cancelled on January 23, 1917. In the High Court judgment there is a reference to the numberes mentioned above and the learned Judge who gave the leading judgment observed that the aforesaid numberes showed that the state of affairs prevailing at that time was some what companyfused and fluid. It is probable that each revenue officer was expressing his own opinion about the matter. An attempt was made in the High Court to get some of the unpublished original documents of Government to clarify the entries in the Wajib-ul-arz. The Government of the Punjab, however, claimed privilege in respect of those documents, which claim was upheld in the High Court. We have re-examined that claim, and though the State was number a party to this litigation, we heard the learned Advocate-General for the State We found the claim to be valid under the law as it stands at present. We have assumed that the entries in the Wajib-ul-arz of 1899-1900 and of 1910-15 related to cultivated and proprietary lands of adna-maliks, though they were entered in a paragraph which dealt with the rights of Government in respect of ownership of the nazul lands, jungles, unclaimed property, etc. Even on that assumption, we have companye to the companyclusion that the entries in the Wajib-ul-arz do number establish the claim of the appellant that there was a surrender or relinquishment of a sovereign right in favour of his predecessor. It remains number to numberice some other evidence on the record. Learned companynsel for the appellant has referred us to several judgments, Exs. P-9, P-7, P-8 and P-4 wrongly- marked as Ex. P-6 . Referring to these judgments, the learned trial Judge said that it was number clear whether those judgments related to lands which were private waste or nautor reclaimed lands. Apart, however, from that difficulty, we are of the view that, the judgments do number advance the case of the appellant any further. They -proceeded primarily on the entries in the Wajib-ul-arz, the effect of which entries we have already companysidered at great length. Admittedly, numberplea of res judicata arose on these judgments, and they were merely evidence of an assertion and determination of a similar claim made by the Raja in respect of other lands within the Jagir. As to the oral evidence in the case, numbere of the Courts below placed any great reliance on it. The learned Subordinate Judge did number accept the oral evidence given on behalf of the appellant the learned District Judge, referring to the oral evidence of the respondents, said that he companyld number accept that evidence in preference to the overwhelming historical and documentary evidence led by the appellant. With regard to the appellants witnesses he seemed to think that some of them at least were reliable. The learned Judges of the High Court did number refer to the oral evidence except for a slight reference to the state- ment of Salig Ram, the Rajas attorney, who appears to have stated that the Raja got his rights in 1893-94 how the Raja got his rights then was number explained. Learned companynsel for the appellant has referred us to the evidence of one Babu Kailash Chander witness No. 2 for the appellant , who was a Forest Range Officer. This gentleman said that the trees standing on the land belonging to the landlords were exclu- sively owned by the Raja Sahib. In cross-examination he admitted that he had numberknowledge of the trees in suit number did he know on which lands the trees were standing. He admitted that he knew numberhing about the rights of the Jagirdar and the landlords inter se with regard to the lands in dispute. It is obvious that such evidence does number prove the case of the appellant. Had the Raja been in possession of the pine trees for such a long time as he number claims, one would expect him to produce some documents showing his -income, etc. from the trees. No such documents were produced. For these reasons, we hold that the appellant has failed to establish his claim to the pine trees, and the decision of the High Court is companyrect. The appeals fail and are dismissed. In the circumstances of these cases, where much of the doubt as respects the right claimed arose out of the entries made in the Wajibul-arz, the High Court properly directed that there would be numberorder for companyts either in the High Court or in the Courts below.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 181 of 1956. Appeal by special leave from the judgment and order dated September 5,1955, of the Judicial Commissioners Court, Ajmer, in Civil Writ Petition No. 108 of 1955. M. Kaul and R. H. Dhebar, for the appellants. The respondent did number appear. 1956. November 15. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal with special leave from the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. The respondent claimed to be a voter of the Ajmer Municipality. By an order dated March 12, 1953, the Ajmer Municipal Committee had been suspended and that suspension was to companytinue till September 11, 1955. In view of the impending elections after the period of suspension was over, the Chief Commissioner, Ajmer, the appellant before us, framed the Ajmer State Municipalities Election Rules, 1955, in exercise of the powers companyferred by s. 43 of the Ajmer- Merwara Municipalities Regulation, 1925 VI of 1925 and published them in the Government Gazette dated August 4, 1955. On August 8, 1955, he numberified an election programme and also authenticated and published an electoral roll. This electoral roll had been companyrected and altered by the orders of the Sub-Divisional Officer on certain days prior to August 8, 1955, but the respondents name was alleged to have been incorrectly described therein, his fathers name having been mentioned as Ratan Lal instead of Chitar Mal. On August 10, 1955, he applied for the companyrection of his fathers name in the Parliamentary Electoral Roll and on August 16, 1955, he filed his numberination paper. His numberination was, however, rejected on August 17, 1955, the Returning Officer stating that he was number one of the electors according to the roll. His application for rectification of the mistake in the Parliamentary Electoral Roll was also rejected on August 18, 1955, by the Electoral Registration Officer on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore numbercorrection companyld be made. The respondent thereupon filed on August 26, 1955, a writ petition being Civil Writ Petition No. 108 of 1955 in the Court of the Judicial. Commissioner at Ajmer against the appellant and the District Magistrate, Ajmer, inter alia for a mandamus against the appellant to reconstitute the Ajmer Municipal Committee by a properly made and published numberification under s. 8 1 of the Regulation and an order against the District Magistrate, Ajmer, restraining him from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955, as numberified. The learned Judicial Commissioner upheld the companytention of the respondent in regard to the reconstitution of the Committee but did number issue any directions in regard to the same in view of the fact that the appellant had already before that date issued a numberification under s. 8 1 of the Regulation to reconstitute the Committee. He also held that Rule 7 of the Election Rules was number in companysonance with and was in companytradiction to s. 30, sub-s. 2 , of the Regulation and was in excess of the rule-making power companyferred upon him, and the elections proposed to be held on September 9, 1955, were number lawful. He, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. On an application made by the appellant for a certificate under Art. 133 1 c of the Constitution, the learned Judicial Commissioner was of opinion that the direction given by him against the District Magistrate, Ajmer, was merely number to hold elections on September 9,,1955, and as that date had already passed when the application was disposed of by him, numberuseful purpose would be served by granting him a certificate and he accordingly refused to grant the same. The appellant, however, approached this Court and obtained special leave under Art. 136 for filing an appeal against the, decision of the learned Judicial Commissioner. When the appeal came up for hearing before us, the respondent companymunicated to us his desire number to appear and companytest the appeal with the result that the appeal has been heard by us exparte. At the outset we pointed out to the learned companynsel for the appellant that the appeal had become academic. The appellant had in fact reconstituted the Ajmer Municipal Committee by a proper numberification under s. 8 1 of the Regulation and the date on which the elections and the poll to the Ajmer Municipal Committee were to he held, viz., September 9, 1955, had also passed. The learned companynsel for the appellant, however, urged before us that the pronouncement of the learned Judicial Commissioner to the effect that Rule 7 of the Election Rules was number in companysonance with and was in companytradiction to s. 30, sub-s. 2 , of the Regulation and was in excess of the rule-making power companyferred upon the appellant was a stumbling block in the way of the appellant holding further elections on the basis of the electoral roll as it had been authenticated and published by him on August 8, 1955. If that pronouncement stood, it would be incumbent on the appellant to authenticate and publish another electoral roll and incur the expenses which were inevitable in that process. He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality. The relevant provisions which fall to be companysidered by us are the following- Section 30. 1 A person shall number be deemed to be an elector for any purpose of this Regulation or of any rule unless he is enrolled as an elector. 2 as amended by Act LX V of 1950 Every person who would be entitled under the Representation of the People Act, 1950 XLIII of 1950 -to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been companyextensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency companyprising the Municipality shall be entitled to be enrolled as an elector of the Municipality. Section 43 The Chief Commissioner may, by numberification, make rules companysistent with this Regulation for the purpose of regulating all or any of the following matters, namely, a b c the preparation and revision of electoral rolls, and the adjudication of claims to be enrolled and objections to enrolment Section 248. 4 On publication in the official Gazette of any rules made under this Regulation, such rules shall have effect as if enacted in this Regulation. Elections Rules Rule 7-Electoral rolls In accordance with the provisions of sub-section 2 of section 30 of the Ajmer Merwara Municipalities Regulation, 1925 VI of 1925 the electoral roll of the particular Municipality shall be the same as the final printed roll for a Parliamentary Constituency representing the area companyered by that Municipality. Rule. 9-Electors No person shall be deemed to be an elector for the purposes of these rules unless his name appears in the electoral rolls. mentioned above It is clear from s. 30, sub-s. 2 , of the Regulation that in order to be entitled to be enrolled as an elector of a Municipality, a person has to fulfill two companyditions, viz., 1 that he should be entitled under the Re. presentation of the People Act, 1950 XLIII of 1950 to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been companyextensive with the Municipality nd 2 that his name should be registered in the electoral roll for a Parliamentary Constituency companyprising the Municipality. If both these companyditions are fulfilled he would be entitled to be enrolled as an elector of the Municipality. In regard to the first companydition reference need be made to the qualifications prescribed for being registered in the electoral roll for the Parliamentary Constituency and it is only if these qualifications are possessed by the person that he would be entitled to be so registered. In order, therefore, to determine whether a person is entitled to be enrolled as an elector of a Municipality, it would be necessary to ascertain in the first instance whether he is entitled to be registered in the electoral roll for the Parliamentary Constituency. Once that companydition is fulfilled, it would be further necessary to companysider whether his name is registered in the electoral roll for the Parliamentary Constituency. If, in spite of his fulfilling the companydition that he is entitled to be registered in the electoral roll for the Parliamentary Constituency, his name is number registered in the electoral roll for the same, he would number be entitled to be enrolled as an elector of the Municipality. The latter companydition does number require any scrutiny for its fulfillment. The fact of his being registered in the electoral roll for the Parliamentary Constituency would be apparent on the face of the electoral roll itself. The fulfillment of the first companydition, however, would be subject to scrutiny and it would be open to any resident of the Municipality to object to the enrolment of a particular person as an elector of the Municipality. Even in the case of the electoral roll for the Parliamentary Constituency it would be open to a person to apply for a revision of that roll by applying for a companyrection of the mistakes or mis-descriptions which might have crept therein as also to have his name registered in the roll if it had number been so registered provided he fulfilled the first companydition, viz., that he was entitled to be registered in the electoral roll for the Parliamentary Constituency. Objections companyld also be filed to the enrolment of particular persons as electors in the Parliamentary Constituency and also in the Municipality. Apart from the preparation of the electoral roll for the Municipality it would, therefore, be necessary to have a, revision of such electoral rolls and also the adjudication of claims to be enrolled therein and objections to such enrolment. This was clearly envisaged by the framers of the Ajmer- Merwara Municipalities Regulation, 1925, and with that end in view it was provided in s. 43 c that the Chief Commissioner may by numberification make rules companysistent with the Regulation for the purpose of regulating inter alia the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and the objections to enrolment. Such rules when framed and published in the official Gazette were, by virtue of s. 248 4 to have effect as if enacted in the Regulation. They were to have statutory effect and were to be treated as part and parcel of the Regulation and companytained therein. Before the amendment of s. 30, sub-s. 2 , of the Regulation by Act LXV of 1950 there were in existence sub-ss. 2 and 3 of that section which prescribed the qualifications for being enrolled as electors of the Municipality. They were, however, substituted by the amended s. 30, sub-s. 2 , set out hereinabove. It thus substituted for the qualifications which had till then been companysidered requisite for such enrolment all the qualifications which were required. for being registered in the electoral roll for the Parliamentary Constituency. That, however, was a provision prescribing the qualifications for the purposes of such enrolment and the object of the amendment was to adopt the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality. It did number eliminate the further steps in the matter of the revision of such electoral roll as also the adjudication of claims to be enrolled therein and objections to such enrollments. The amendment did number obviate the necessity of taking these further steps inspite of the electoral roll for the Parliamentary Constituency being treated as the electoral, roll of the Municipality. By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved- but the Municipality was number absolved from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment. When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power companyferred by s. 43 of the Regulation, the Chief Commissioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area companyered by the Municipality. He dispensed with the independent preparation by the Municipality of the electoral roll but did numberhing further. Rule 9 provided that numberperson shall be deemed to be an elector for the purpose of the Rules unless his name appeared in the electoral rolls mentioned above. That had reference obviously to the second companydition prescribed in s. 30, sub-s. 2 , of the Regulation but did number go far enough. It did number say that a person whose name appeared in the electoral rolls for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first companydition therein prescribed and rightly so, because, if it did say so, it would be in companyflict with s. 30, sub-s. 2 , of the Regulation. These Rules did number eliminate the scrutiny which companyld be made at the instance of the parties companycerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 XLIII of 1950 to be so registered and whether he possessed the qualification prescribed in that Act in this behalf number did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties companycerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolnaent. Unless this is done, the entire obligation cast upon the authorities holding the elections is number discharged and the elections held on such imperfect electoral rolls would acquire numbervalidity and would be liable to be challenged at the instance of the parties companycerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective. It was urged that the expression the final printed roll for the Parliamentary Constituency predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 XLIII of 1950 and, therefore, there was numbernecessity for making any further provision of that nature in the matter of the electoral roll of the Municipality. This companytention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 XLIII of 1950 is number bodily incorporated in the Ajmer-Merwar Muni- cipalities Regulation, 1925 VI of 1925 . Neither the Regulation number the Rules which have been framed by the Chief Commissioner in exercise of the powers companyferred under s. 43 of the Regulation make any mention of any such incorporation number is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rules 7 and 9 above referred to were intended to form a companyplete companye for the finalisation of the electoral roll of the Municipality they did number serve the intended purpose and were either inconsistent with the provisions of s. 30, sub-s. 2 , of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps therein above indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly number an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee companyld be held either on September 9, 1955, or at any time thereafter. In the view which we hold, it is number necessary to companysider whether, in the event of an inconsistency between s. 30, sub-s. 2 , of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power companyferred under s. 43 of the Regulation, the section would prevail or the Rules. Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955, was number in companyformity with the provisions of s. 30, sub-s. 2 , and the relevant provisions of the Regulation and companyld number form the basis of any valid elections to be held to the Ajmer Municipal Committee. Under the circumstances we see numbersubstance in the appeal and dismiss the same.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 132 of 1956. Appeal by special leave from the judgment and order dated May 16, 1955, of the Election Tribunal, Bhatinda, in Election Petition No. 14 of 1954. K. Daphtary, Solicitor-General of India, J. B. Dadachanji, S. N. Andley, Rameshwar Nath and K. C. Puri, for the appellant. C. Chatterji, A. N. Sinha and Gopal Singh, for respondent No. 1. 1956. December 20. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-The appellant was one of the candidates who stood for election to the Legislative Assembly of the Paterson and East Punjab States Union from the Farber Constituency in the General Elections held in 1954. He secured the largest number of votes, and was declared duly elected. The result was numberified in the Official Gazette on February 27, 1954, and the return of the election expenses was published therein on May 2, 1954. On May 18, 1954, the first respondent filed a petition under s. 81 of the Representation of the People Act No. XLIII of 1951, hereinafter referred -to as the Act, and therein he prayed that the election of the appellant might be declared void on the ground that We and his agents had companymitted various companyrupt and illegal practices, of which particulars were given. The appellant filed a written statement denying these allegations. He therein raised the further companytention that the election petition had number been presented within the time limited by law, and was, therefore, liable to be dismissed. Rule 119, which prescribes the period within which election petitions have to be filed, runs, so far as it is material, as follows Time within which an election petition shall be presented --An election petition calling in question an election may,- a in the case where such petition is against a returned candidate, be presented under section 81 at any time after the date of publication of the name, of such candidate under section 67 but number later than fourteen days from the date of publication of the numberice in the Official Gazette under rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer-, The last date for filing the petition, according to this Rule, was May 16, 1954, but that happened to be a Sunday and the day following had been declared a public holiday. The first respondent accordingly presented his petition on May 18, 1954, and in paragraph 6 stated as follows The offices were closed on 16th and 17th the petition is, therefore, well within limitation. On this,, the Election Commission passed the following order The petition was filed on l8-5-1954. But for the fact that 16-5-1954 and 17-5-1954 were holidays, the petition would have been time-barred. Admit. The plea put forward by the appellant in his written statement based on Rule 119 a was that whatever might have been the reason therefor, the fact was that the petition had number been filed number later than fourteen days from the publication of the return of the election expenses, which was on May 2, 1954, and that it was, therefore, number presented within the time prescribed. The Tribunal overruled this plea on the ground that under Rule 2 6 of the Election Rules, the General Clauses Act X of 1897 was applicable in interpreting them, and that under s. 10 of that Act, the election petition was presented within the time allowed by Rule 119 a . - On the merits, the Tribunal held that of the grounds put forward in the Election Petition, one and only one had been substantiated, and that was that the appellant had employed for payment, in companynection with his election, 25 persons in addition to the number of persons allowed under Rule 118 read along with Schedule VI thereto, and had thereby companymitted the major companyrupt practice mentioned in s. 123 7 of the Act. The Tribunal accordingly declared the election void under s. 100 2 b of the Act. It also observed that on its finding aforesaid, the appellant had incurred the disqualification enacted in ss. 140 1 a and 140 2 of the Act. Against this decision, the appellant has preferred this appeal by special leave. On behalf of the appellant, two companytentions have been pressed before us 1 that the election petition was presented beyond the time prescribed by Rule 119 a , and should have been dismissed under s. 90 4 of the Act and 2 that on the findings recorded by the Tribunal, the companyclusion that Rule 118 had been companytravened does number follow and is erroneous. The first question turns on the interpretation of s. 10 of the General Clauses Act, which is as follows Where by any Central Act or Regulation made after the companymencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be companysidered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. The companytention of Mr. Solicitor-General on behalf of the appellant is that this section can apply on its own terms only when the act in question is to be done within a prescribed period, that under Rule 119 a the petition has to be filed number later than fourteen days, that the two expressions do number mean the same thing, the words of the Rule being more peremptory, and that accordingly s. 10 of the General Clauses Act cannot be invoked in aid of a petition presented under Rule 119, later than fourteen days. In support of this companytention, he invites our attention to some of the Rules in which the expression the time within which is used, as for example, Rule 123, and he argues that when a statute uses two different expressions, they must be companystrued as used in two different senses. He also points out that whenever the Legislature intended that if the last date on which an act companyld be performed fell on a holiday, it companyld be validly performed on the next working day, it said so, as in the proviso to s. 37 of the Act, and that there would be numberneed for such a provision, if s. 10 of the General Clauses Act were intended generally to apply. This argument proceeds on an interpretation of s. 10 of the General Clauses Act which, in our opinion,is erroneous.Broadly stated, the object of the section is to enable a person to do what he companyld have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a companyrt or office, and that period expires on a holiday, then according to the section the act should be companysidered to have been done within that period, if it is done on the next day on which the companyrt or office is open. For that section to apply, therefore, all that is requisite is that there should be a period pres- cribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in Rule I 1 9 a for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are within fourteen days or number later than fourteen days. That the distinction sought to be made by the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to s. 81 of the Act. Section 81 1 enacts that the election petition may be presented within such time as may be prescribed, and it is under this section that Rule 119 has been framed. It is obvious that the rule- making authority companyld number have intended to go further than what the section itself had enacted, and if the language of the Rule is companystrued in companyjunction with and under the companyerage of the section under which it is framed, the words number later than fourteen days must be held to mean the same thing as within a period of fourteen days. Reference in this companynection should be made to the heading of Rule 119 which is, Time within which an election petition shall be presented . We entertain numberdoubt that the legislature has used both the expressions As meaning the same thing, and there are accordingly numbergrounds for holding that s. 10 is number applicable to petitions falling within Rule 119. We are also unable to read in the proviso to s. 37 of the Act an intention generally to exclude the operation of s. 10 of the General Clauses Act in the companystruction of the Rules, as that will be against the plain language of Rule 2 6 . It should be numbered that proviso applies only to s. 30 c of the Act, and it is possible that the Legislature might have companysidered it doubtful whether s. 30 c would, having regard to its terms, fall within s. 10 of the General Clauses Act and enacted the province abundant cauterize. The operation of such a beneficent enactment as a. 10 of the General Clauses Act is number, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us. We are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time. We should add that the appellant also raised the companytention that if we agreed with him that the election petition was number presented in time, we should hold that the order of the Election Commission admitting the petition was number one of companydonation within the proviso to s. 85, because that proceeded on the footing that the petition was in time, and did number amount to a decision that if it was number, there were sufficient grounds for excusing the delay. We are number disposed to agree with this companytention but in the view which we have taken that the petition is in time, it is unnecessary to companysider it. Then the next question-and that is one of substance-is whether there has been companytravention of Rule 118. The material facts are that -the appellant is the quondam ruler of Faridkot, which enjoyed during the British regime the status of an independent State, and came in for judicial recognition as such in Sirdar Gurdyal Singh v. Rajah of Faridkote 1 , and, after Independence, became merged in the State of Pepsu. The 1 I894 L.R. 21 I.A. 171. appellant companytinues to retain a large staff of subordinates, and the charge of the first respondent in his petition was that as many as 54 of them were employed for purposes of election, and that Rule 118 had thus been violated. Rule 118 is as follows , No person other than, or in addition to, those specified in Schedule VI shall be employed for payment by a candidate or his election agent in companynection with an election. Under Schedule VI, a candidate for election may employ for payment in companynection with election 1 one election agent, 2 one companynting agent, 3 one clerk and one messenger, 4 one polling agent and two relief polling agents for each polling station or where a polling station has more than one polling booth, for each polling booth and 5 one messenger for each polling station, or for each polling booth, if a polling station has more than one booth. The finding of the Tribunal on this question is as follows it is clear that 25 persons named in the foregoing paragraphs took part in the election campaign of respondent No. I apart from any duties they may have performed as polling agents. Now admittedly all these persons are paid employees of respondent No. 1. As their number exceeds the statutory number provided in Rule 118, respondent No. I is undoubtedly guilty of a major companyrupt practice under section 123 7 . A question however arises whether the fact that these persons were already in the employ of respondent No. I and were number specially engaged for purposes of election, would take them out of purview of Rule 118. In our judgment it would number. Then, dealing with the question as to whether the return of election expenses made by the appellant was false in that it did number include anything on account of the services of the 25 employees, the Tribunal says We have held under Issue No. 3 that respondent No. I did utilise the services of 25 of his employees for furthering his election prospects. Now there is numberevidence on the record to show that these employees were engaged specifically for the purposes of election. All of them had been in the service of respondent No. I for a long time before the election in numbermal companyrse. Therefore, there is numberreason why the emoluments paid should be charged to the election account. However, if any additional allowances were paid to these persons that would certainly be chargeable to the election account. But there is numberevidence on the record to show that any such allowance was paid. Now, the question is whether on these facts there is a companytravention of Rule 118. The companytention of Mr. Solicitor- General for the appellant is that the Rule would apply only if the employment of the persons was specifically for work in companynection with the election and such employment was for payment. In other words, according to him it is only employment ad hoc for the election that is within the mischief of the Rule. On behalf of the respondent Mr. N. C. Chatter bee companytends that it is number necessary for the Rule to operate that there should have been an employment specially for the purpose of the election, and that it would be sufficient if the persons who did work in companynection with the election were in the employment of the candidate, and that employment carried with it payment of salary or remuneration. In our opinion, neither of these companytentions is wellfounded. Rule 118 does number require that the person engaged by a candidate to work in the election should have been specially employed for the purpose of the election. It is sufficient, on the wording of the Rule, that person is employed in companynection with the election. At the same time, the requirements of Rule 118 are number satisfied by proving merely that the person does work in companynection with the election. That work must be done under a companytract of employment. Thus, if the candidate has been maintaining a regular staff of his own and its members have been doing personal service to him and he has been paying them and then the election supervenes, and off -and on he sets them on election work but they companytinue to do their numbermal work as members of his staff, it cannot be said of them that they have been employed in companynection with the election. But if, on the other hand, he takes them out of their numbermal work and puts them on whole-time or substantially whole-time work in companynection with the election, that would amount to companyverting their general employment into one in companynection with the election. It will be a question of fact in each case whether what the candidate has done amounts merely to asking the members of the staff to do casual work in companynection with the election in addition to their numbermal duties, or whether it amounts to suspending the work numbermally done by them and assigning to them election work instead. Then again, it is a companydition for the application of the Rule that the employment of the person must be for payment. If the members of the staff companytinue to do their numbermal work and do casual work in companynection with the election, the payment of salary to them would be a payment on account of their employment as such members of the staff and number in companynection with the election. Rule 118 would number apply to that case, as there is neither an employment in companynection with the election, number a payment on account of such employment. Indeed, the salary paid to the members would number even be election expenses liable to be included in the return. But if, in the above case, the members are paid extra for their work, such extra payment will have to be included in the return of election expenses, though it may be that Rule 118 itself might have numberapplication for the reason that there is numberemployment for election and the payment is number in respect of such employment. If, however, the members of the staff are switched off from their numbermal work and turned on to election work so that it companyld be said that work has been assigned to them in supersession of their numbermal work, then the salary paid to them companyld rightly be regarded as payment for work in companynection with election within Rule 118. That being our view on the companystruction of Rule 118, we shall number proceed to companysider what the position is, on the authorities cited before us. In the Hartlepools Case 1 the question arose with reference to one Butler who was the general secratary of Mr. Furness, the returned candidate, and certain clerks in a companypany in which Mr. Furness, had companysiderable influence. All these persons had taken part in the election. As regards Butler, Phillimore J. observed that if it companyld be held that at the time of his employment his duties included also work in elections if and when they, were held, then a proportionate part of his salary should be regarded as election expenses but, on the facts, he held that it was numberpart of the duties of Butler in respect of his standing employment to be election agent when called upon, and that, therefore, numberpart of his salary need be shown as election expenses. As put by Pickford, J., in Ins companycurring judgment, Butler was paid his salary as private secretary and was number paid anything as election agent . Counsel for the appellant relies on these observations, and argues that on the finding of the Tribunal that the 25 men had been in service for a, long time, there companyld be numberquestion, of their having been employed for work in companynection with election, and that they were, therefore, neither election agents number was the salary paid to them payment on account of any employment in companynection with the election. But then, companysidering the effect of the clerks of the companypany taking part in the election, Phillimore J. observed I am certainly inclined to think that if a business man takes his business clerks and employs them for election work which, if he had number business clerks, would be numbermally done by paid clerks, he ought to return their salaries as part of his expenses. Counsel for respondent strongly relies on these obser- vations. But then, the point was number actually decided by Philimore, J., as the evidence relatinig to the matter was incomplete, and Pickford, J. expressly reserved his opinion on the question In view of the remarks of Sankey, J., in the Borough of Oxford Case 2 , in the 1 1910 6 OM. H. 1. 2 7 OM. H. 49, 56-57 companyrse of his argument, it is doubtful,,how far the observations of Phillimore, J. quoted above companyld be accepted as good law. They Were, however,. adopted in two decisions of the Election Tribunals of this companyntry, to which our attention was invited by Mr. Chatterjee.In the Amritsar Case 1 , the following observation occurs We also companysider that if any man in the service of the respondent were put on election work, their wages for the period should have been shown in the return. See Hartlepools Case 2 . The words put on election work in this passage suggest that the employees had been taken out of their original work. As there is numberdiscussion of the present question, the authority of this decision is, in any event, little. In Farrukhabad Case 3 , this passage,, as also the observations of Phillimore, J., were quoted, and in accordance therewith, it was held that the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the period they worked in companynection with the election of the respondent Nol should have been shown in the return It was found in that case that Tilakdhari Singh worked exclusively for 30 days in companynections with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods. None of these cases has companysidered what would amount to employment in companynection with election, when the persons had been previously employed on other work and they throw numberlight on the present question. The position may thsu be summed up For Rule 118 to apply, two companyditions must be satisfied, viz., there should have been an employment by the candidate of a person in companynection with,an election, and such employment should have been for payment. 1 1924 Hammonds Election Cases 83. 2 1910 6 OM. H. 1. 3 1927 Hammonds Election Cases 349. Where a person has been in the employment of the candidate even prior to his election and his duties do number include work in election and he takes part in election, whether he is to be regarded as employed in companynection with the election will depend on the nature of the work which he performs during the election. When the work which he does in election is, casual and is in addition to the numbermal work for which, he has been employed , he is number within Rule l 18. But,. if his work in companynection with the election is such that he companyld be regarded as having been taken out of his previous work and put on election work, then he would be within Rule 118. Whether a person who has been previously employed by the candidate on other work should held to have been employed in companynection with election is a question -of fact to be decided on the evidence in each case. In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for a long time and that their appointment was number companyorable for election purposes. It has also been found that they were number paid anything extra for what work they might have done in companynection with the election. But there is numberfinding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work. In the absence of such a finding, it cannot be held that Rule II 8 had been infringed. It is possible that the Election Tribunal did number appreciate the true legal position and has in companysequence failed to record the findings requisite for a decision on Rule 118, and that would be a good ground on which we companyld, if the Justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do number companysider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely, to the effect that the appellants men did election work in the morning or in the evening, that is , out of office hours. That shows that the work the staff was in addition to their numbermal duties, and on the, principles stated above, they companyld number be held to have been employed in companynection with the election. As the first respondent does number appear himself to have under-, stood the true position under Rule 118 and has failed to adduce, evidence requisite for a decision of the question, he must fail, the burden being on him to establish that Rule had been infringed. In the result, this appeal is allowed, the order of the, Election Tribunal is set aside and the election petition of the first respondent will stand dismissed.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petitions Nos. 439 440 of 1955. Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. J. Umrigar and R. A. Govind, for the petitioner in Petition No. 439 of 1955. B. Dadachanji, for the petitioner in Petition No. 440 of 1955, C. Setalvad, Attorney-General of India, B. Sen and R. Dhebar, for the respondents. 1956. May 8. The judgment of S. R. Das C. J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment, SINHA J.-These petitions under article 32 of the Constitution challenge the companystitutionality of some of the provisions of the Bombay Police Act, XXII of 1951, which hereinafter will, be referred to as The Act , with special reference to section 56, as also of the orders passed against them externing them under that section of the Act. In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhivandi Division, Bhivandi, District Thana, and the State of Bombay are respondents 1, 2 and 3. The petitioner is a citizen of India and carries on trade in grass at Bhilad, a railway station on the Western Railway. On 21st January 1955 the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, served a numberice under section 56 of the Act in the following terms- No. Ext. 3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21-1-1955. I, Shri C. V. Bapat, Deputy Superintendent of Police and Sub-Divisional office Bhiwandi Division, District Thana, do hereby issue a numberice to you, Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed that you should be removed outside the District of Thana and you should number enter or return to the said district for a period of two years from the date of the order to be made under section 56 of the Bombay Police Act, 1951 for the following reasons II Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person and property in Bhilad and the surrounding areas- III You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons. Your activities have been in companytinuation of your similar activities for the. last five years, given as under- You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should number challenge you or your men. You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti- national, anti-social and illegal activities. As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are companytinuously labouring under grave apprehension of danger to their per- son and property. You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them from having recourse to legal means. III That you and your associates are also understood to be in possession of unlicensed firearms which has been causing companysiderable alarm and spreading a feeling of insecurity of life and property in the mind of villagers from Bhilad and neighbouring villages and Central Excise and Customs employees. IV The witnesses are number willing to companye forward and to give evidence against you by reason of apprehension of danger and harm to their person and property. Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, District Thana in exercise of the authority companyferred upon me under section 59 of the Bombay Police Act, 1951 by the District Magistrate Thana under his number,MAG. 2/ EX dated 17-1-1955 do hereby direct you to appear before me at 11 a.m. on 27-1-1955 at Dahanu in the office of the Sub-Divi- sional Police Office Dahanu for tendering your explanation regarding the said allegation. You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses, produced by you. Signed and sealed this day of 21st Jan. 1955 Sd Deputy Superintendent of Police Sub-Divisional Police Officer, Bhiwandi. To Shri Bhagu Dubal Bhandari Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana. By that numberice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised. In pursuance of that numberice the petitioner appeared, before the police officer aforesaid and the hearing of his case took place on different dates. The petitioner claims to have examined seven respectable persons to testify on his behalf. Ulti- mately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District. The order of externment is Ex. D to the petition and companytains the recitals that after companysidering the evidence before him and the explanation offered by the petitioner the District Magistrate of Thana the 1st respondent , was satisfied that the petitioner engages in giving threats and assaulting Central Excise and Customs Officials men and residents of Bhilad and surrounding villages and indulges in illicit traffic of foreign liquor from Daman and that in his opinion witnessess are number willing to companye forward to give evidence in public against the said Shri Bhagubhai Dul- labhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property. It is this order which is challenged as illegal and ultra vires and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents prohibiting them, their servants and agents from acting upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioners right to reside in Bhilad and carry on his business. The petitioner had preferred an appeal to the Government against the said order of externment. But the appeal was dismissed on the 9th September 1955. Against the said order the petitioner moved the High Court of Judicature at Bombay under article 226 of the Constitution, but the said application was also dismissed in limine by the High Court by its order dated the 7th November 1955, The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition. He swears that he had passed the externment order companyplained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate. He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by numbermeans vague. Only the names of the persons who had given the, information against the petitioner were number disclosed to him inasmuch as those persons were number prepared to. companye out in the open and depose against him in public as witnesses. He was satisfied that witnesses were unwilling to companye forward to give evidence in public against the petitioner. He also affirms that the petitioners movements and acts were number only causing alarm, danger or harm to personal property of the general public round about Bhilad, but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory. He admits that the petitioner was discharged by the Judicial Magistrate, First Class, Umbergaon because the witnesses did number appear and depose against him for fear of the petitioner. In Petition No. 440 of 1955, Kunwar Rameshwar Singh is the petitioner and the respondents are- Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch I C.I.D., Greater Bombay, The Commissioner of Police, Greater Bombay, and The State of Bombay. The petitioner is a citizen of India and claims to be a social worker companynected with several social organisations. He alleges that his main social activity has been the improvement of the lot of prostitutes and singing girls in certain quartersof Bombay On the 2nd November, 1954 the petitioner was served with a numberice under section 56 read with section 59 of the Act Ex. A to the petition setting out the allegations against him and calling upon him to ex- plain those matters. In pursuance of the said numberice the petitioner appeared before the Superintendent of Police to show cause against the proposed action against him. Ultimately on the 4th January, 1955 the Commissioner of Police, the second respondent, passed an order to the effect that the petitioner should remove himself from the limits of Greater Bombay within seven days. That order is marked Ex. H and is to the following effect. Order of Externment ------------------------ Section 56 of the Bombay Police Act, 1951 Police Station Nagpada No. 7/c/43/1955. Whereas the Commissioner of Police, Greater Bombay, has- directed by his order, dated the 13th August, 1954 and 11th December 1954, made under sub-section 2 of section 10 of the Bombay Police Act, 1951 Bombay Act XXII of 1951 that the powers, functions and duties under the said Act shall also be exercised by the Deputy Commissioners of Police, Greater Bombay. And whereas evidence has been placed before me, Deputy Commissioner of Police, Crime Branch 1 , against the person known as Kunwar Rameshwar Singh, to the following effect- That since October, 1953 in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay his movements and acts are causing alarm and harm to the persons residing in, carrying on business in, or visiting the said locality in that He with assistance of his associates some of them being Sk. Makbool Sk. Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort Money from women residing in and carrying on business either as prostitutes or singing girls in the said locality on threats of assault and of causing bodily injury to them That he-with the assistance of the said associates assault or threaten with assault the aforesaid women who do number companyply with his demands for money That in order to companypel the aforesaid women to pay him the money demanded by him he also posts his associates at or near the places of business of the aforesaid women and prevent customers from entering the rooms of, such women That he with the assistance of his associates extort money from shopkeepers, hotel-keepers, merchants and hawkers carrying on business in the said locality and from rent companylectors of buildings occupied by the aforesaid prostitutes and singing girls -by assaulting them or threatening them with assault and dislocation of business That he causes damage to the property of the said hotelkeepers and hawkers of the said locality who do number pay him money demanded by him That he accosts persons visiting the rooms of singing girls in the said locality for the purpose of entertainment and demand money from them under threats of assault and of preventing them from visiting the said locality That he has companymitted several acts of the nature mentioned above. II. That witnesses to the above incidents are number willing to companye forward to give evidence in public against him as they apprehend that they will be assaulted by him and or by his associates if they do so. And whereas I have heard the said person and companysidered the explanation tendered by him and also the evidence given by the witnesses produced by him and have heard his companynsel. And whereas after companysidering all the evidence and explanation detailed above, I am satisfied that The Movements and acts of Kunwar Rameshwar Singh since October, 1953, are causing alarm and harm to the persons residing in carrying on business in or Visitin the locality known as Falkland Road, Foras Road Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay and that he indulges in activities mentioned above. And whereas in my opinion witnesses are unwilling to companye forward to give evidence in public against the said person by reason of apprehension on their part as regards the safety of their persons Now, therefore, in exercise of the powers vested in me under section 56 of the said Act, 1, Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch C.I.D., Greater Bombay himself hereby direct that the said Kunwar Rameshwar Singh shall remove outside the limits of Greater Bombay by Central Rly. route within seven days from the date of service of this order and I further direct that he shall number enter the said area of Greater Bombay for a period of two years from the date of this order without a permission in writing from the Commissioner of Police Greater Bombay, or the Government of Bombay. Sd. W. K. Patil, Dy. Commissioner of Police, Crime Branch I C.I.D. Greater Bombay. The order quoted above is a self-contained one and discloses the nature of the allegations against him which he bad been called upon to explain. The petitioner preferred an appeal to the third respondent, the State of Bombay. But his appeal was dismissed on the 17th January 1955. The petitioner challenged the validity of the said order passed by the respondents by a petition under article 226 of the Constitution to the Bombay High Court, but it was dismissed on the 14th March 1955 after hearing. The judgment of the High Court is Exhibit D. The learned Judge of the Bombay High Court who dealt with the petition has set out briefly the main allegations of the petitioner and the affidavit in answer to the petition sworn to by the 1st respondent here. The learned Judge observed in the companyrse of his judgment that in view of the averments in the petition and those in the affidavit in reply it was impossible for him to hold that the Deputy Commissioner of Police knew that witnesses were willing to give evidence against the petitioner. The petitioner went up on Letters Patent Appeal and a Division Bench companysisting of the Chief Justice and another Judge of the Bombay High Court dismissed the appeal holding that once the opinion has been formed by the authority that witnesses were unwilling to give evidence in public against the petitioner, the companyrt companyld number go behind that opinion. They also negatived the plea of want of bona fides in the 1st respondent who had initiated the proceedings. The petitioner removed himself outside the limits of Greater Bombay. Having companye to know that a warrant of arrest had been issued Against him in a certain pending case before the Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on the 6th April 1955, the petitioner entered Greater Bombay to attend companyrt but he was arrested under the Act for companymitting a breach of the externment order. He was prosecuted before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act. He was companyvicted by the Magistrate and sentenced to nine months rigorous imprisonment by a judgment dated the 8th September 1955. The Magistrates judgment is Exhibit to the petition. The learned Magistrate overruled the petitioners companytention that the order of externment passed against him was illegal, relying chiefly upon the judgments of the High Court referred to above, upholding the companystitutionality of that order. As regards his defence that he had entered Greater Bombay in obedience to the warrant issued against him, the learned Magistrate observed that as a matter of fact, according to the statement of the petitioners companynsel before him he had taken that step to -test the validity of the order. Secondly, the learned Magistrate has rightly pointed out that the petitioner should have obtained the previous permission of the Police Commissioner before returning to Bombay, as otherwise the order of externment would be rendered nugatory. The learned Magistrate also observed in the companyrse of his judgment that numberallegations of mala fides had been made against the police officers who bad initiated the proceedings against the petitioner. The petitioner went up in appeal to the High Court of Bombay which by its judgment dated the 5th October 1955 upheld the companyviction and the sentence. The judgment of the High Court is Exhibit G to the petition. A Division Bench of the Bombay High Court repelled the companytention on behalf of the appellant that the order of externment was invalid, relying chiefly upon the previous judgment of that very companyrt upholding the companystitutionality of the very order impugned. Another matter referred to in the judgment of the High Court is rather significant. On behalf of the appellant reliance had been placed upon a letter alleged to have been sent to the petitioner by the Secretary to the Chief Minister granting permission to him to return to Bombay in order to see the Home Secretary. It was found on enquiry by the learned Government Pleader who intimated to the companyrt that the alleged letter had number been signed by the Secretary to the Chief Minister and that numbersuch letter had actually been sent to him. On that statement being made, the petitioners companynsel did number press his companytention that his return was after permission. The petitioner moved this Court for special leave to appeal against the said judgment of the High Court in Petition No. 601 of 1955. One of the grounds in the petition was that the High Court should have held that the externment order was illegal and that therefore the petitioners entry was lawful. A Constitution Bench of this Court by its order dated the 21st November 1955 dismissed the petition for special leave to appeal. This companypletes the statement of the case made on behalf of the petitioner. In answer to this petition the first respondent has sworn to the affidavit filed in this Court. It is necessary to state in some detail the facts stated in this affidavit which furnish the background to the whole case against the petitioner. The petitioner is said to be a native of Balrampur, District Gonda, Uttar Pradesh. After passing his school examination in 1940, he joined the then Royal Indian Navy in 1942. In the year 1946 while he was attached to S. Talwar in Bombay, be was released from service. In 1947 he joined the B. B. C. 1. -Railway as a clerk and was removed from his post in July 1947 for having made baseless allegations against his superior officer. In 1949 he made an attempt to enter the police force of Greater Bombay, but that failed as he was found to be unreliable. Subsequently, in August 1950 he joined the State Transport Department as a clerk but had again to be removed from that post in April 1951. Later on, the petitioner obtained accommodation in Bombay on a false representation that he was a refugee from Pakistan. He was prosecuted and companyvicted and sentenced to pay a fine of Rs. 30 or three months rigorous imprisonment in default. His appeal from that order of companyviction and sentence to the High Court of Bombay was dismissed by a Division Bench in September 1954. On a similar false repre- sentation he had obtained from the Custodian of Evacuee Property two shops in Bombay. Necessary proceedings had to be taken against him for evicting him from those shops. After his removal from Government jobs as aforesaid, the petitioner came forward as a social worker directing his activities mainly to the redlight district in certain quarters of Greater Bombay inhabited by over 10,000 public women. Along with his associates he started a numberent campaign and resorted to violence with the help of so-called volunteers who were themselves bad characters, externees, drunkards and persons with previous companyvictions. With the help of associates like those he moved in the redlight district and realised money from his victims by threat and intimidation. Thus by all questionable means the petitioner started extorting moneys by harassing the inmates of that district and those who frequented those quarters. The rest of the long affidavit running into 29 paragraphs is devoted to denying the allegations made by the petitioner that he had been a victim of police companybination against him or that the procedure laid down by the law had number been followed or that the petitioner had number a fair and full opportunity of explaining his case to the authorities. The affidavit further asserts that witnesses who had given their statements -to the police against the petitioner were number willing to companye forward openly to depose against him and some of those witnesses who did turn up were prevailed upon by the petitioner to change their original statements made during the preliminary inquiries. On those averments it was submitted by the 1st respondent that the proceedings against him were regular and in accordance with the provisions of the Act and that there was numbermerit in his companytentions. These two petitions were heard along with Petition No. 272 of 1955 which is being disposed of by a separate judgment. In that case the order impugned had been passed under section 57 of the Act. Sections 56 to 59 of the Act are closely companynected. The companymon arguments addressed to us by Shri Purshotham challenging the validity of sections 56 to 59 have been dealt with in that judgment and need number be repeated here. It is only necessary to deal with the provisions of the section impugned in these two cases, namely, section 56 of the Act, which is in these terms- Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by numberification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf a that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or b that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the companymission of an. Offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are number willing to companye forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property, or c that an outbreak of epidemic disease is likely to result from the companytinued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit., direct such person or immigrant so to companyduct himself as shall seem necessary in order to prevent violence and alarm or the, outbreak or spread of such disease or to remove himself outside the area Within the local limits of his jurisdiction by such route and within such time as the said officer may prescribe and number to enter or return to the said area from which he was directed to remove himself. In order to attract the operation of the section quoted above with special, reference to the portions relevant to these cases, it is necessary 1 that the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in that behalf, as the case may be, should be satisfied that the movements or acts of any person are causing or calculated to, cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the companymission of an offence involving force of violence or an offence punishable under Chapter-XII, XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and 2 that in the opinion of such officer witnesses are number willing to companye forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property. When the officer companycerned is satisfied about these two essential matters, he may direct such person to remove himself outside the local limits of his jurisdiction and number to return to the said area for a period number exceeding two years as laid down in section 58. But before passing such orders the person proceeded against under section 56 has to be given an opportunity of explaining matters against him by adducing such evidence as he may tender after he has been informed in writing as to the general nature of the material allegations against him. Such a person is entitled to appear before the officer by an advocate or attorney for the purpose of tendering his explanation. and evidence. It has number been companytended on behalf of the petitioners that they had-not been given the opportunity companytemplated by section 59. But grievance was sought to be made of the fact that particulars of the evidence against the petitioners and of their alleged activities have number been given to them. That argument has been dealt with in the judgment in the other case. It is necessary therefore to deal only with the particular arguments advanced on behalf of each petitioner peculiar to his case. In Petition No. 439 of 1955, it was said that this Court had laid down in the case of Gurbachan Singh v. State of Bombay 1 as follows- The law is certainly an extraordinary, one and has been made only to meet those exceptional cases where numberwitnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence-in certain areas companystitutes a menace to the safety of the public residing therein. The words numberwitnesses have been emphasized as supporting the argument that unless all the witnesses before the police are unwilling to give evidence in open companyrt the provisions of section 56 cannot be taken recourse to. In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea, J. as he then was . The learned Judge did number mean to lay down, and we do number understand him as having laid down, that unless each and every witness is unwilling to give evidence in open companyrt, the provisions of section 56 are number available to the police. The words of section 56 quoted above do number lend themselves to that extreme companytention. If such an extreme interpretation were to be put on that part of section 56, it is number difficult to imagine a situation where it will become almost impossible to apply that section to any case. It was next companytended on behalf of the petitioner in this case that the section companytemplates witnesses other than members of the police force and employees and officers of the Customs Department. It is said that it is the duty of the police force as of the employees of the Customs Department to brave all danger and to companye out in the open even against desperate criminals to give evidence against them in companyrt and to subject themselves to cross- examination. That is a companynsel of perfection which every member 1 1952 S.C.R. 787. of the police force or every employee of the Customs Department may number be able to act up to. Furthermore, the terms of the section do number justify any such restricted meaning being given to the word witness. Hence, in our opinion, there is numberjustification for the companytention that members of the police force and employees and officers of the Customs Department must always companye in the open and give evidence against criminals or potential criminals. If the officer companycerned is satisfied that witnesses of whatever description they may be, are number willing to companye out in the open, one of the essential companyditions of the application of section 56 is fulfilled and it is numbermore necessary for them to stop to companysider as to which class of persons those witnesses may companye from. In Petition No. 440 of 1955 the learned companynsel for the petitioner had a more uphill task in view of the fact that this very order impugned bad been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal and the petition for special leave to appeal to this Court had been refused. But it was argued on behalf of the petitioner that section 56 itself wag invalid as companytravening the provisions of article 19 of the Constitution-an argument which has already been dealt-with by this Court in Gurbachan Singh v. State of Bombay 1 referred to above. In that case, Mukherjea, J. as he then was delivered the judgment of the companyrt after examining the companystitutionality of section 27 1 of the City of Bombay Police Act, Bombay Act IV of 1902 . The operative words of that section are almost exactly the same as those of section 56 of the Act. It is number therefore necessary to re-examine the companystitutionality of those very provisions in this case. It is enough to point out that numberattempt was made in this Court to bake the authority of that decision. Shri Dadachanji, who appeared on behalf of the petitioner in this case faintly suggested that the petitioner had been proceeded against under the penal sec- 1 1952 S.C.R. 737. tion of the Act numberwithstanding the fact that he had entered Greater Bombay in order to look after the case pending against him in which a warrant of arrest had been issued. But that is a closed chapter so far as the companyrts including this Court also are companycerned inasmuch as his companyviction stands companyformed as a result of the refusal of this Court to grant him -special leave to appeal from the, judgment of the Bombay High Court. He further companytended that his companyviction for his having entered Greater Bombay itself is an indication of the unreasonableness of the restriction and of the law under which the order of externment had been passed against him. But if the petitioner had only taken the companyrse indicated by the law, namely, of obtaining the previous permission of the prescribed authority, he companyld have avoided the prosecution and the companyviction. It must therefore be held that there is numbermerit in this companytention also. For the reasons aforesaid it must be held that section 56 of the Act is number unconstitutional -and that the orders passed against the petitioners are number invalid. These applications must stand dismissed. JAGANNADHADAS J.-In view of the decision of this Court in Gurbachan Singh v. The State of Bombay 1 , I agree that these petitions should be dismissed. But I think it right to add that if the matter were res integra I should have felt difficulty in upholding the validity of section 56 b of the Bombay Police Act, 1951 Bombay Act XXII of 1951 in so far as it did number demarcate the application thereof to the more serious classes of offences falling within the specified Chapters, serious either because of the nature of the offence companytemplated or the circumstances under which it is to be companymitted and so forth. I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a 1 1952 S.C.R. 737. period as two years. it has been said that there is a power of cancellation at any time vested in the officer companycerned. Even so, I should have thought that the vesting of a power to extern, a person out of his home for so long a period without the obligation to review the order at some stated periodical intervals, say once in three months or six months, is prima facie unreasonable. Externment might appear on the surface -not to be as serious an interference with personal liberty as detention. But in actual practice it may be productive of more serious injury to the person companycerned-or the rest of his family if he is the earning member. An externed person is virtually thrown on the streets of another place where be has got to seek his livelihood afresh. He has to start in a new society with the black-mark -of externment against him and may be driven thereby to more criminality. On the other hand, in the case of a person under detention, the State numbermally takes or is bound to take care of him, and in appropriate cases provides also for his family.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 74 of 1956. Appeal by special leave from the judgment and order dated September 22, 1955, of the Nagpur High Court in Letters Patent Appeal No. 2 of 1955. K. Daphtary, Solicitor-General for India, J. N. Bannerji and P. C. Agarwala, for the appellant. C. Setalvad, Attorney-General for India and Naunit Lal, for respondent No. 1. 1956. September 30. The Judgment of the Court was delivered by SINHA J.-This is an appeal by special leave from the judgment and order, dated September 22, 1955, passed by the Letters Patent Bench of the Nagpur High Court reversing those of a single Judge of that Court, dated December 13, 1954, refusing to issue a writ in the nature of a certiorari. The facts of this case lie in a short companypass and may be stated as follows The Suwarna Transport Company Limited, which will be referred to as the first respondent in the companyrse of this judgment, held seven permits for running buses on the Buldana-Malkapur route, as the sole operator on that route. It applied for another permit for the same route. The appellant, The New Prakash Transport Co. Ltd., as also another party, called the Navjivan Transport Service number cited in this Court applied for a similar permit on that route. On May 26, 1953, all the three applicants aforesaid were heard by the Regional Transport Authority of Amraoti, which is the third respondent in this Court, in companynection with the permit applied for. Consideration of the several applications was postponed, but a resolution was passed to the effect that No one service should have monopoly on Buldana-Malkapur route. On March 30, 1954, another meeting of the Regional Transport Authority took place and the first respondent was granted the permit. The appellants application was rejected on the ground that the police report was against it. The appellant preferred an appeal to the Appellate Authority companystituted under R. 73 of the Motor -Vehicles Act , Madhya Pradesh, Nagpur, which is the second respondent to this appeal. The appellant challenged the companyrectness of the police report against it and applied to the District Superintendent of Police personally to verify the facts stated in the first report on the basis of which the appellants application for permit had been rejected, as aforesaid. The police made a further report, which was placed before the second respondent. That further report by the police was read out to the parties by the Chairman of the Appellate Authority at the time of the hearing of the appeal. At the hearing numberobjection appears to have been raised by any of the parties to the companyrse adopted by the second respondent. By its order dated July 29, 1954, the second respondent set aside the order of the third respondent, allowed the appeal and ordered the permit to be issued to the appellant. The first respondent moved the High Court at Nagpur for a writ of certiorari under Art. 226 of the Constitution, substantially on two grounds, namely, 1 that the order passed by the second respondent was vitiated by an error apparent on the face of the record, and 2 that it companytravened the principles of natural justice. The first ground was founded on the allegation that the second respondent had misread the police report, and the second on the allegation that the revised report by the police had number been shown to the petitioner who had been afforded numberreal and effective opportunity to deal with the report or to meet any relevant allegations made therein, and to study that report and make his submissions in regard thereto before the appeal was decided. The appellant and the second respondent showed cause against the rule issued by the companyrt. The appellant while showing cause, admitted that the third respondent had rejected its application on the basis of the police report dated March 27, 1954, which was full of mistakes and falsehoods, that it moved the District Superintendent of Police personally to verify the companytents of the said report and that the fresh report submitted by the police after due verification had absolved the appellant from the allegations of misconduct companytained in the first report. It also companytroverted the ground that there was any mistake apparent on the face of the record. The fresh report submitted by the police after verification at the appellants request was received by the second respondent and the Chairman read the same during the hearing of the appeal and that, therefore, it was wrong to suggest that there had been a failure of justice,. The second respondent also showed cause and companyroborated the appellants statement that the first police report had been subsequently modified by the District Superintendent of Police by the report dated May 13, 1954, which showed that the previous report was based on some misunderstanding. It was also stated that the report was actually read out to the parties by the Chairman while the appeal was being heard. The petition under Arts. 226 and 227 made, as aforesaid, by the first respondent was heard by a single Judge Mr. Justice V. R. Sen who by his orders dated December 13, 1954, discharged the rule with companyts. In the companyrse of his judgment the learned Judge after referring in detail to the orders of the authorities under the Motor Vehicles Act, that is to say, the second and third respondents, observed that there was numbersubstance in the companytention that the procedure adopted by the Appellate Authority was opposed to the principles of natural justice and had operated to the prejudice of the first respondent and that there was numbererror apparent on the face of the record. The learned Judge also pointed out that when -the report was brought to the numberice of the first respondent, it did number indicate that it wished to companytrovert the report. The first respondent preferred an appeal under the Letters Patent and repeated its grounds of attack against the orders of the Appellate Authority. The appeal was heard by a Division Bench companysisting of Chief Justice Hidayatulla and Mr. Justice S. P. Kotwal. The Letters Patent Bench seemed to be inclined to negative the plea that there was a mistake apparent on the face of the record and pointed out that though the language used by the second respondent was ambi- guous and number quite accurate, it was possible to take the view that it had in fact companysidered the subsequent police report when it observed that the police bad practically absolved the appellant from all blame except on a minor question, number necessary to be referred to in detail here. On the second ground it differed from the learned single Judge and came to the companyclusion that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case. In the result it granted a writ quashing the order of the Appellate Authority and directing it to rehear the appeal in the light of the observations made in the companyrse of the judgment. The appellant made an application to the High Court for a certificate of fitness for appeal to this Court. Having been unsuccessful there, the appellant came up to this Court and obtained special leave to appeal. The only question which requires determination by this Court is whether or number there has been a failure of natural justice in this case as a result of the procedure adopted by the Appellate Authority. On this question there has been a marked difference of opinion in the two stages of the case in the High Court. It has been argued on behalf of the appellant that the Appeal Bench of the Nagpur High Court has erred in companying to the companyclusion that in the circumstances of this case, there has been a failure of justice, in disagreement with the learned single Judge who was clearly of the opposite opinion. It has also been argued that there are numberwell defined criteria by which this question falls to be determined. It depends upon the terms of the legislation creating the statutory body which has to function according to its obligations laid down in the statute. If it has done all that was required by the law to do, it cannot be said that it has failed in the discharge of its statutory duty. In this companynection reference was made to the provisions of ss. 47, 48 and 64 of the Motor Vehicles Act read along with the relevant rules framed under s. 68 of the Act. On behalf of the respondents it was argued that it had numberopportunity of studying the subsequent police report and of making submissions thereon with the result that there has been a failure of natural justice in the sense that the respondent had been deprived of a fair and full opportunity of being heard. Though the High Court on appeal did number base its decision on the other question, namely, whether there was any error apparent on the face of the record, it was sought to be argued that there was an error in the order of the second respondent in so far as it made reference to only the first report and read into it the maatter companytained in the subsequent report. At the outset we may observe that, in our opinion, there is numbersubstance in the second ground sought to be resuscitated in this Court by the learned companynsel on behalf of the res-. pondent. Error apparent on the face of the record in the companytext of this case must mean an assumption of facts which are number borne out by the record. We are number companycerned with other grounds which may in the companytext of each particular case support a companytention of error apparent on the face of the record. In this case if there was any such error, it was with reference to the two police reports. As observed by the Appellate Bench of the High Court, though the language used by- the Appellate Authority with regard to strict grammatical companystruction may refer to the first police report, it was difficult to hold that the matters referred to in the order challenged before the High Court were number companytained in the subsequent report submitted by the police at the instance of the appellant. The judgment under appeal did number take the view that there was any such mistake apparent on the face of the record as was companytended for on behalf of the first respondent. We have been referred to the orders of the Appellate Authority as read by the Appellate Bench of the High Court and, in our opinion, numbersuch mistake has been shown to have vitiated the orders impugned before the High Court. Coming back to the question whether or number there has been a failure of natural justice, we may shortly review the relevant provisions of the statute in order to find out the obligations imposed upon the Appellate Authority while disposing of an appeal from the orders of the Regional Transport Authority. The matters to be companysidered by a Regional Transport Authority at the time of disposing of an application for a stage carriage permit are set out in s. They include the interest of the public generally, the adequacy of existing road transport service and the benefits to any particular locality. The Authority is also enjoined to take into companysideration any representations made by persons already providing road transport facilities along the proposed route or by any local authority or police authority within whose jurisdiction the proposed route lies. Section 48 empowers a Regional Transport Authority, after taking into companysideration matters set forth in s. 47, to restrict the number of stage carriages and to impose companyditions on stage carriage permits. Section 64 provides for right of appeal against specified kinds of orders passed by the Provincial or Regional Transport Authority to the prescribed authority. It also in terms provides that on an appeal being filed to the prescribed authority, it shall give the appellant and the original authority, that is to say, the authority against whose orders the appeal had been brought., an opportunity of being heard. Section 64 which creates the right of appeal does number in terms speak of a like opportunity being given to the persons against whom the appeal had been filed. But r. 73 framed by the Government in pursuance of its rule-making power companyferred by s. 68, lays down that the authority to decide an appeal against the orders of a Regional Transport Authority under s. 64 of the Act shall be the Chairman and two members of the Provincial Transport Authority. The rule further provides that on receipt of an appeal, the Chairman shall appoint the time and place for hearing the appeal and shall give number less than thirty days numberice to the appellant, the original authority, and any other person interested in the appeal and on such appointed or adjourned date the Appellate Authority shall hear such persons as may appear and, after such further enquiry, if any, as it may deem necessary, companyfirm, vary, or set aside the order against which the appeal is preferred and make any companysequential or incidental order that may be just or proper. It will. thus be seen that though the substantive section creating the right of appeal does number in terms create any right in a respondent to be heard, the rules framed providing for the procedure before the Appellate Authority companytemplate that sufficient numberice shall be given to any other person interested in the appeal which expression must include persons other than the appellant who may be interested in being heard against the points raised in support of the appeal. Neither the sections number the rules framed under the Act companytemplate anything like recording oral or documentary evidence in the usual way as in companyrts of law. Besides, the parties interested in the grant of stage carriage permits or those interested against it, the police authority of the locality is also entitled to be heard both at the original stage and at the appellate stage. Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority do number companytemplate anything like a regular hearing in a companyrt of justice. No elaborate procedure has been prescribed as to how the parties interested have to be heard in companynection with the question, who is to be granted a stage carriage permit. The judgment of the High Court under appeal has made companyious quotations from the decisions of the House of Lords and the Court of Appeal in support of its companyclusion that the principles of natural justice had number been sufficiently companyplied with in the present case by simply reading out the subsequent police report at the time the Appellate Authority was hearing the appeal. The learned Judges of the Appeal Court have observed that the companytents of a long report such as the second report was, companyld number be carried in one.-, head. They also observed that in order to present its case effectively the first respondent was entitled number only to have the report read out but also to study it so that it companyld understand it and state its case fully and effectively before the Appellate Authority. We have to examine those several precedents relied upon by the High Court to see how far its companyclusions are supported by authority. But before we do that, it has got to be observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the companystitution of the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary. The Regional Transport Authority is charged with the duty of granting or refusing a stage carriage permit, only to mention the matter with which we are immediately companycerned. In that companynection the statute requires that authority to have regard to the matters set forth in s. 47 of the Act, as already indicated. The police authority within whose local jurisdiction any part of the proposed route lies, has also been given the right to make representations. But the police report submitted to the Regional Transport Authority or to the Appellate Authority, if it requires the police authority to do so, is number intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order, with particular reference to the question as to whether any of the applicants for a permit had anything to its credit or discredit as supplier of transport facilities. Such a report is meant more for the use of the authority in making or refusing a grant than for the use of the several applicants or any one of them. In other words, it is in the nature of information supplied by the police in order to assist the authority in making up its mind. In the present case when the subsequent police report was read out by the Chairman, neither the appellant number the first respondent, number for the matter of that any of the other parties, raised any objection to the use of that document or asked for an adjournment on the ground either that it had been taken by surprise or that it had materials to offer in opposition to the report. The learned Judges of the High Court have observed in the companyrse of their judgment under appeal that though it is the essence of the business of tribunals like the one under the -Motor Vehicles Act to transact business expeditiously, the business of the authority would number have suffered much if a companyy of the report had been given to the parties companycerned and the case adjourned for a short time. It appears that -no such adjournment had been prayed for on behalf of any of the parties who, it appears, had been represented by companynsel. But then the High Court has observed further that the duty is laid number upon companynsel who appears but upon the tribunal which administers justice. It is incumbent on every tribunal which - acts judicially to see that justice is number only done but is seen to be done, arid that the elementary rule of natural justice of giving a fair and proper hearing to every one companycerned is followed. We think that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case. In our opinion, the High Court has made a number of assumptions in making those observations which do number appear to be justified by the scheme of the legislation we are dealing with or by any a priori companysiderations of what has been characterized as natural justice. The tribunal in question was number administering justice as a companyrt of law, though while deciding as between the rival claims of the applicants for a permit it had to deal with them in a fair and just manner. But a tribunal even acting judicially is number obliged to grant an adjournment suo motu without any application on behalf of any of the parties interested. We do number find that any of the parties made at that time any grievance about the procedure adopted by the Appellate Authority. But the question appears to have been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to the appellant. In this companynection it has also to be observed that the subsequent police report had said numberhing directly against the first respondent which it would be interested in companytroverting. The subsequent police report had only withdrawn some of the adverse companyments against the companyduct of the appellant which had been found to have been made under a misunderstanding. But the subsequent report still companytains some minor companyplaints against the appellant. Those matters were apparently companysidered by the Appellate Authority number to be so serious as to stand in the way of the appellant getting the permit, especially when that authority had previously decided upon the policy that monopoly of supplying transport facility should number be allowed to companytinue in favour of the first respondent. Hence, in our opinion, there was numberhing in the rules requiring a companyy of the police report to be furnished to any of the parties, number was there any circumstance necessitating the adjournment of the hearing of the appeal, particularly when numberrequest for such an adjournment had been made either by the first respondent or by any other party. At that time numbere of the parties appears to have made any grievance about the police report only being read at by the Chairman or any request for an adjournment in order to adduce evidence pro and company. The rules framed under Chapter IV for the companyduct and hearing of the appeals that may be preferred under this chapter s. 68 2 b do number companytemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such further enquiry, if any, as it may deem necessary. But the High Court Bench appears to have, taken the view that, rule or numberrule, request or numberrequest for an adjournment,the rules of natural justice made it incumbent upon the Appellate Authority to stay its hands in order that a proper and effective chance was given to the first respondent to state its case. There was number much of a case to state because, each party applying for the permit must be presumed to have pressed its claim upon the Appellate Authority. We have therefore to examine the precedents discussed in detail in the judgment under appeal to see how far the Appellate Bench was justified in holding that the rules of natural justice had been companytravened by the Appel- late Authority. The earliest decision of the House of Lords brought to our numberice in this companynection is the case of Spackman Plumstead Board of Works 1 . In that case the question arose on a prosecution for infringement of an Act of Parliament making provision for fixing the general line of buildings in a road. The certificate of the superintending architect as to the general line of buildings came in for discussion as to whether the architect, before deciding as to how the general line has to be fixed, had to hear the parties companycerned. In that companynection the Earl of Selborne, L.C., made the following observations - No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply numbermore than that the substantial requirements of justice shall number be violated. He is number a judge in the proper sense of the word but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give numberice when he will proceed with the matter, and he must act honestly and impartially and number under the dictation of some other person or persons, to whom the authority is number given by law. There must be numberMalversation of any kind. There would be numberdecision within the meaning of the statute if there were anything of that sort done companytrary to the essence of justice. But it appears to me to be perfectly companysistent with reason, that the statute may have intentionally 1 1885 10 A.C. 229, 240. omitted to provide for form, because this is a, matter number of a kind requiring form, number of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such companysiderations as in their judgment ought to be brought before him. When that is done, from the nature of the case numberfurther proceeding as to summoning the parties, or as to doing anything of that kind which a judge might have to do, is necessary. Another leading case on the subject is the decision of the House of Lords in the well-known case of Board of Education Rice 1 . Their Lordships in that case had to discuss the duty of the Board of Education under s. 7 of the Education Act, 1902. Lord Loreburn, L.C., in the companyrse of his speech referred to the provisions of the Act and made the following observations as to the duty to decide certain questions relating to numberprovided schools- Comparatively recent statutes have extended, if they have number originated, the practice of imposing upon department., or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what companyes for determination is sometimes a matter to be settled by discretion, involving numberlaw. It will, I suppose, usually be of an administrative kind but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need number add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything, But I do number think they are bound to treat such a question as though it were a trial. They have numberpower to administer an oath, and need number examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the companytroversy for companyrecting or companytradicting any relevant statement prejudicial to their view. 1 1911 A.C. 179,182. How far judicial opinion may vary as to the companytent of the rule of natural justice is amply illustrated by the case of Rex v. Local Government Board, Ex parte Arlidge 1 , at different stages. The rule nisi for a certiorari was first heard by Ridley, Lord Coleridge and Bankes, JJ. The case related to the powers of the, Local Government Board under the Housing, Town Planning, etc. Act, 1909 9 Edw. 7, c. 44 refusing to terminate its orders closing a dwelling- house as unfit for habitation and the procedure for hearing an appeal against such an order. Section 29 of the Act provided that such an appeal shall be heard and disposed of according to the procedure laid down by the Local Government Board, provided that the rules shall provide that the Board shall number dismiss any, appeal without having first held a public local inquiry, It was unanimously held by the Court discharging the rule that the Local Government Board was number bound to hear the appellant or any one on his behalf after the report of the inspector on the public local inquiry had been received, before dismissing the appeal. At the public local inquiry the owner of the house affected by the closing order had been represented. But at the time the appeal was finally disposed of, there was numberhearing of the appellant or his representative as in a companyrt of law. The Court repelled the argument that the appellant had a right to be heard by the Local Government Board and to know the companytents of the report made by the inspector who had held the public local inquiry. Rely Vingmainly upon the judgment of Lord Loreburn, L.C, in the case of Board of Education v. Rice supra , the Court decided that the procedure indicated by the rules framed under the statute in question had been followed and that there was numberother or further obligation on the Board to hear the appellant either personally or through his representative or companynsel, because there was numberindication in the statute to that effect. The matter was taken in appeal in Rex v. Local Government Board, Ex parte A rlidge 2 , and the Court of Appeal by a majority Vaughan Williams and Buckley, L.JJ., Hamilton, L.J. dissenting 1 1913 1 K.B, 463. 2 1914 1 K. B. 16o, allowed the appeal holding that it was companytrary to the principles of natural justice that the Board should have dismissed the appeal without disclosing to the appellant the companytents of their inspectors report and without giving the appellant an opportunity of being heard in support of the appeal. They, therefore, quashed the order dismissing the appeal. The majority judgment pointed out that the Act and the rules framed thereunder except for certain matters were silent as to the procedure and that in the absence of such specific provisions the number-disclosure of the nspectors report was companytrary to principles of natural justice on which English law is based. It further held that the appellant before the Board was entitled to a hearing and that as the appellant had number the opportunity of seeing and companysidering the report and the documents which the deciding authority had before it, the appellant had been denied full opportunity of being heard. It went to the length of observing that the numberdisclosure of the report and the documents which were taken into companysideration by the Board when the disclosure had been asked for, was itself inconsistent with natural justice. Hamilton, L.J., in his dissenting judgment pointed out that the report of the inspector in the case, as in other Government departments, is only a statement of facts made for the information of the officials of the department and that it companyld number be assumed that the legislature meant all such reports to be companymunicated to those interested where it does number say the companytrary. He further pointed out that the practice was the other way, namely, to specify how and to whom such reports were to be companymunicated, when they are intended to be companymunicated at all. Dealing with the question how far the requirements of natural justice had been fulfilled, the Lord Justice observed at p. 199 that It has often been pointed out that the expression natural justice is sadly lacking in precision. Then he referred to a number of precedents dealing with the question of natural justice as to how the companynotation of the expression differed in different companytexts. He further observed at pp. 201 202 - The Local Government Board here is a statutory tribunal, anomalous as companypared with companymon law Courts, created by the Legislature for a special class of appeals and endowed by it with the power of formulating its own procedure. He also adopted the dictum of Loreburn, L.C., in Board of Education v. Rice supra that the Board must act in good faith and fairly listen to both sides. Against the judgment of the majority of the Court quashing the determination of the appeal by the Board there was an appeal to the House of Lords. The House of Lords unanimously adopted the opinion of Hamilton, L.J. later Lord Sumner , allowed the appeal and set aside the majority decision. Vide Local Government Board v. Arlidge 1 . In the companyrse of his speech Viscount Haldane, L.C., made the following observations- My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. , They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be companye to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does number follow that the procedure of every such tribunal must be the same. His Lordship adopted the dictum of Lord Loreburn, L.C., in the leading case of Board of Education v. Rice supra . Lord Shaw in his speech made the following observations which are very apposite to the facts and circumstances of this case- The judgments of the majority of the Court below appear to me, if I may say so with respect, to be dominated by the idea that the analogy of judicial methods or procedure should apply to departmental action. Judicial methods may, in many points of administration, be entirely unsuitable, and produce delays, expense, and public and private injury. The department must obey the statute. 1 1915 A.C. 120, 132. He further observed at p. 138 as follows And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term natural justice means that a result or process should be just, it is a harmless though it may be a high-sounding expression in so far as it attempts to reflect the old jus naturale it is a companyfused and unwarranted transfer into the ethical sphere of a term employed for other distinctions and, in so far as it is resorted to for other purposes, it is vacuous. Lord Parmoor in his speech also reiterated the principle governing the procedure of a quasi judicial tribunal in these words- Where, however, the question of the propriety of procedure is raised in a hearing before some tribunal other than a Court of law there is numberobligation to adopt the regular forms of legal procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. Another recent decision of the House of Lords in the case of General Medical Council v. Spackman 1 was relied upon by the High Court in the judgment under appeal. In that case the General Medical Council, which had been companystituted a domestic forum to determine whether a case had been made out for striking off the name of a medical practitioner from the medical register for infamous companyduct in a professional respect, was the appellant before their Lordships, and the respondent had been found guilty by the Divorce Court of having companymitted adultery. In the proceedings before the Medical Council the medical practitioner proceeded against desired to call fresh evidence on the issue of adultery and requested the Council to rehear that issue. The Council declined to reopen the issue and to hear fresh evidence and directed his name to be erased from the register. The Court of Appeal unanimously affirmed the view of the dissenting Judge in the Court of first instance that there had been number 1 1943 A.C. 827. due inquiry as required by s. 29 of the Medical Act, 1858. The Appeal Court set aside the majority decision of Viscount Caldecote, C.J., and Humphreys, J., who had held that the requirements of the law had been satisfied by adopting the judgment and decree of the Divorce Court. On appeal by the Medical Council to the House of Lords, the House unanimously agreed with the unanimous decision of the Appeal Court and held that the requirement of due inquiry enjoined by the Act creating the Tribunal had number been satisfied. Viscount Simon, L.C., examined the provisions of the Act and the relevant rules and pointed out that they require the practitioner proceeded against to state his case, and to produce the evidence in support of it. The Lord Chancellor in the companyrse of his speech observed that the General Medical Council was number a judicial body in the ordinary sense, was master of its own procedure and was number bound by strict rules of evidence. It was bound to satisfy the requirements of the law and the rules made thereunder. The Council had to decide on sworn testimony after due inquiry. He also adopted the language of Lord Loreburn, C., in the aforesaid case of Board of Educatian v. Rice supra . Lord Atkin in the companyrse of his speech pointed out that the rules under the Act provided that the Council was bound, if requested, to hear all the evidence that the practitioner charged wished to bring before them. He also pointed out the antithesis between companyvenience and justice by saying companyvenience and justice are often number on speakin- terms. His Lordship further pointed out the difference between the procedure which may be prescribed in respect of different tribunals which were creations of statutes, in these words- Some analogy exists, numberdoubt, between the various procedures of this and other number strictly judicial bodies, but I cannot think that the procedure which may be very just in deciding whether to close a ,school or an insanitary house is necessarily right in deciding a charge of infamous companyduct against a professional man. I would, therefore, demur to any suggestion that the words of Lord Loreburn, C., in -Board of Education v. Rice supra afford a companyplete guide to the General Medical Council in the exercise of their duties. As I have said, it is number companyrect that I they need number examine witnesses. They must examine witnesses if tendered, and their own rules rightly provide for this. Further it appears to me very doubtful whether it is true that they have numberpower to administer an oath. It may be numbericed that the Lords who sat on that case particularly emphasized the requirements of the law as laid down in the statute and the rules framed thereunder. In view of those statutory provisions they found it necessary to uphold the decision of the Court of Appeal which had set aside the judgment and orders of the Kings Bench Division which had taken the company tarry view, to the effect that the decree in the Divorce Court was companyclusive evidence on which the Medical Council companyld act. The case is therefore authority for the proposition that the rules of natural justice have to be inferred from the nature of the tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute. There is another class of cases which lay down that if a person is to be deprived of his professional status, he must be heard and be given effective opportunity of meeting any allegation made against him on the question of his fitness to pursue his profession. If the tribunal companystituted by the statute in question to decide about the fitness of an individual to pursue that profession, decides against him without giving him an opportunity of meeting any allegations against him bearing on his capacity or qualification for the profefession to which he claims admission, it has been held that it was improper for the tribunal acting in a quasi- judicial capacity to act to his prejudice upon evidence or adverse report without his having an opportunity of meeting such relevant allegations made against him. To that class belongs the case of R. v. Architects Registration Tribunal 1 . In that case the Kings Bench Division issued an order of certiorari to, quash 1 1945 2 A.E.R. 131. 117 the tribunals decision refusing an application for registration as an architect. The cases of Leeson v. General Council of Medical Education and Registration 1 , and Allinson v. General Council of Medical Education and Registration 2 also belong to that category. They deal with the power of the General Council of Medical Education under the Medical Act 21 22 Viet. c. 90 to strike off a medical practitioner for unprofessional companyduct. Those were cases in which the Medical Council had to function as a quasi-judicial body and had to proceed according to the procedure laid down in the rules framed under the Act aforesaid. They had therefore to function, number exactly as companyrts of law, but as domestic tribunals created by the statute to function according to the statutory rules in a fair and just manner, that is to say, that they should have numberpersonal interest in the company, troversy and should have given a full and fair opportunity to the person proceeded against to place his case before the tribunal. Another class of cases is illustrated by the decision of the Court of Appeal in R. v. Archbishop of Canterbury 3 . In that case the Archbishop of Canterbury reviewing the order of the Bishop refused to approve the clerk presented by the patron to a benefice. Acting under s. 3 of the Benefices Exercise of the Rights of Presentation Measure, 1931, the Court repelled the argument on behalf of the disappointed patron that as the decision involved a deprivation of property rights there was an obligation upon the Archbishop to act in a quasijudicial manner. Lord Greene, M.R., who delivered the judgment of the Court, observed that there was numberjustification for regarding the matter when it companyes before the Archbishop as in any sense, or by any remote analogy, a his inter parties. Hence the Court on a true companystruction of a. 3 of the Measure came to the companyclusion that the Archbishop was number required to arrive at his decision by companyducting a quasi-judicial enquiry. This case, therefore, is an authority for the 1 1890 43 Ch. D. 366. 2 1894 1 Q.B. 750. 3 1944 1 A.E.R. 179. proposition that simply because property rights are involved, the authorities charged with the duty of deciding claims to such rights are number necessarily, apart from the provisions of the statute, required to function as quasi- judicial tribunals. As already pointed out, the Appellate Authority had to function in a quasi-judicial capacity in accordance with the rules made under the Motor Vehicles Act. That Act has made ample provisions for safeguarding the interests of rival claimants for permits. The provisions of the Act were examined in detail by a Bench of five Judges of this Court in the case of Veerappa Pillai v. Raman Raman Ltd. 1 . This Court examined elaborately the provisions of the Act vis-a-vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits. It also examined how far the High Court exercising its special powers to issue writs under Art. 226 of the Constitution companyld interfere with the orders made by those authorities. In the companyrse of its judgment this Court made the following observations at page 596, which are very relevant to the present purpose - Thus we have before us a companyplete and precise scheme for regulating the issue of permits, providing what matters are to be taken into companysideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the companyrection of errors are found in the statute itself and it is to these remedies that resort must Generally be bad. Keeping in view the observations of this Court quoted above and the principles of natural justice discussed in the several authorities of the highest Courts in England, we have to see how far the provisions of the Motor Vehicles Act and the rules framed thereunder justify the criticism of the High Court that the Appellate Authority did number give full and effective opportunity to the first respondent to present his point of view before it. As already indicated, the statutory 1 1952 S. C. R. 583. provisions do number companytemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a companyrt of law. They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for. They took into companysideration all the relevant matters and came to their decision which has number been attacked as partial or perverse. The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had number been satisfied. The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the police, though it had number been placed into the hands of the parties. That report did number directly companytain any allegations against the first respondent. Hence there was numberhing in that report which it companyld be called upon to meet. The only effect of the report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further companysideration of their records. The police report is more for the information of the authorities companycerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that the Appellate Authority had read out the companytents of the police report was enough companypliance with the rules of natural justice. We have also pointed out that numbergrievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should number have been companysidered or that they wished to have a further opportunity of looking into that report and to companytrovert any matter companytained therein. They did number move the Appellate Authority for an adjournment of the hearing in order to enable it to meet any of the statements made in that report. But the learned companynsel for the respondent suggested that the requirements of natural justice companyld number be waived by any of the parties and that it was incumbent upon the Appellate Authority to observe the so-called rules of natural justice. In our opinion, there is numberwarrant for such a proposition. Even in a companyrt of law a party is number entitled to raise the question at the appellate stage that he should have been granted an adjournment which he did number pray for in the companyrt of first instance. Far less, such a claim can be entertained in an appeal from a tribunal which is number a companyrt of justice, but a statutory body functioning in a quasi judicial way. For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more companyrect view of the legal position.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 247 of 1954. Appeal from the judgment and decree dated July 21, 19 53 of the Labour Appellate Tribunal of India, Third Bench, Lucknow in Appeal. No. Calcutta 44 of 1952. G. Mathur, for the appellant. J. Umrigar, amicus curiae for the respondent, 1956. October 23. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant is a limited Company, which had been carrying on business in crushing sugarcane at a place called Pipraich in Gorakhpur District from the year 1932. In 1946 it decided to expand its business, and with that object, sold its old machinery which had a crushing capacity of 160 tons per day, and purchased a new one with 650 tons capacity. The new plant was installed in 1947, and it actually started working in 1948-49. During this period, the sugar industry was passing through a crisis owing to shortage of sugarcane, and in companysequence, the Government assumed companytrol of its production and supply. The quota which was allotted to the appellants Mill proved too small to its being worked profitably, with the result that in 1948-49 and 1949-50 the Company sustained losses which according to the appellant came to Rs. 2,67 042-7-4. After several unsuccessful attempts at setting a larger supply, the management wrote to the Government on May 11, 1950, either to increase their quota or to permit them to sell the Mills. In October, 1950, the Government granted permission for the sale of the plant and machinery, and pursuant thereto, the management sold them to a Madras party. As the crushing season was then on, the appellant obtained from the purchaser a lease of the Mills for the current season agreeing to deliver possession thereof on the termination of the lease. It should be mentioned that the appellant was also carrying on negotiations with the purchaser, for itself dismantling the machinery and erecting it at Madras for a lump companysideration, expecting to perform the companytract through its own workmen. When the workmen became aware of the agreement of sale, their reaction to it was thoroughly hostile, and acting through their union, the respondent herein, they decided to prevent the transaction going through, as otherwise they would be thrown out of employment. With that object, they moved the Government to cancel the permission granted to the appellant for the sale of the Mills, and they also passed a resolution on December 26, 1950, to go on strike from January 12, 1951, and companymunicated the same to the appellant. This led to companyrespondence between the parties, and as that is the foundation of the claim for companypensation put forward by the respondent and awarded by the Tribunal, it becomes necessary to set it out with sufficient fulness. On January 3, 1951, the Managing Director offered through the Manager of the Mills, to allot 25 per cent. of the profit on the sale transaction with the Madras party on certain terms and subject to the companydition that the numberice of strike should be withdrawn at once and today, so that arrangement of work companyld be made. To this, the reply of the Union on January 5, 1951, was as follows With reference to the assurance given by the Managing Director, companymunicated by your goodself to us under your No. 975 dated 4th January 1951, asking us to withdraw the numberice of strike, we regret to inform you that our fight is with the Government, which is number solved with this only. Our members are bent upon keeping the Sugar mills here at any companyt, either by strike, satyagrah, etc., or through any other means guided by our federation, otherwise there is numberassurance of employment of thousands of creatures. Then the letter proceeded to take exception to some of the terms, and finally wound up by stating that the workmen were waiting for their President Kashinath Pandey to advise them in the matter. Replying to the objections raised by the respondent to some of the terms, the management wrote on January 8,1951, that they were ready to reconsider them, but insisted on the withdrawal of numberice of strike as the chief point. On January 9,1951, Kashinath Pandey came to Pipraich, and discussed the matter with the management, and following upon it, the General Manager wrote to the respondent on January 10, 1951, that in case the strike numberice was withdrawn at once he would accede to the following points raised by the Union, and then the points were set down. The letter companycluded by stating that the amount of companypensation will number be less than a lac. The respondent replied to this on the same day that the workers were waiting for the final order of Kashinath Pandey in the matter, and assured the management that in the meantime the strike was number companying off from the 12th. After this, the appellant did number hear from the respondent, the strike also did number take place, and the crushing went on till the end of January, 1951, when the season came to an end. One of the points that arises for our determination in this appeal is whether on this companyrespondence there was a companycluded. and binding agreement that the appellant should pay 25 per cent. of the profits on the sale transaction to the workmen. To companytinue the narration, the lease having expired with the crushing season, the purchaser came over to Pipraich to take delivery of the Mills and to arrange for the machinery being dismantled and removed to Madras for being erected there. The appellant who, as already stated, was negotiating to get the dismantling done for a lump companysideration found that its workmen were as hostile to it as ever, and refused to help in the work. To adopt the language of the respondent in its written statement they declined out of sentiment to dig their own graves. After fruitless attempts at getting them to companyperate in dismantling the machinery, the management put up the following numberice on February 28, 1951 The workers of Pipraich. Sagar Mills Ltd. should know that we have sold our Mill to Madras party under the permission of the Government. The party has arrived for dismantling. Under the terms of agreement, we are bound to help them in this work. So the workers should know that we can do this favour that we can take companytract of dismantling here and erection in Madras and keep the workers engaged and request the purchasers for providing them in their companycern. Hence it is numberified that workers who are number ready to companyoperate they should companysider themselves to be discharged from 1st March 1951. Fifteen days numberice is served on the workers. Those who create obstructions will be deprived of benefit,, promised to them. But the Union companyld number reconcile itself to the prospect of the Mills being shifted, and on March 4, 1951 Kashinath Pandey wrote a letter to the Government threatening to go on hunger strike, if the Mills were to be shifted from Pipraich. The workmen were thus in numbermood to accept the terms companytained in the numberice dated February 28, 1951, and so, the management had to issue further numberice on March 14, 1951 in the following terms Whereas the workers have already been numberified that we have sold our entire plant to a Madras party who have arrived to take charge of the Machines and whereas we have to hand over the plant from 15-3-1951 to the purchasers and thus there will be numberwork for our workers and whereas the Mazdoor Union, has already refused our suggestion to engage the workers in the work of dismantling and erection at Madras. Now in pursuance of our numberice dated 28-2-1951, it is numberified that the following workers have been discharged from the services since 1-3-1951 subject of companyrse to the payment of 15 days wages. The workers are hereby asked to take their wages of 15 days on the 15th and 16th instant. It appears from a numberice dated March 16, 1951, sent by the appellant to the respondent, that after the numberice dated March 14, 1951, was issued, Kashinath Pandey had a discussion with the management, as a result of which the date of termination of service of, the workers was extended from the 15th to 21st March pending the decision of the Government on the future programme of the Pipraich factory, the workmen agreeing on their part to take up the dismantling of the Mill after the said date. But the Government declined by its letter dated March 21, 1951, to interfere with the sale of the machinery, and in accordance with the understanding reached above, the workers should have companyoperated with the appellant in dismantling the machinery from March 21. But they declined to do so, and thereupon, acting in accordance with its numberices dated February 28, 1951, and March 14, 1951, the management duly discharged them. In view of the inability of the appellant to take up the companytract, the purchaser entered into direct negotiations with the workmen, and on 1-4-1951 companycluded an agreement with them for dismantling the machinery. The net result was that the appellant lost a companytract on which, as admitted by the respondent, it would have earned a profit of at least Rs. 2 lakhs. The workers., having taken the benefit of a direct companytract with the purchaser for dismantling the machinery, next turned their attention to the appellant, and on the basis of the letters dated January 3, 1951, and January 10, 1951, sent a numberice to it on April 19, 1951, asking for distribution among the workers of the 25 per cent labour-share of the profits on sale of machinery. By its letter dated June 19, 1951, the appellant repudiated. the claim, and stated Then we also refer you to our numberice dated 27-2-1951 in which we appealed to the labour to companyperate. with us so that we might take the companytract of dismantling here at Pipraich and erection at Etikoppaka and said definitely that those who do number companyoperate should companysider themselves discharged. This would have given us a good saving to meet the demand of the labour, but as you in spite of our appeal and numberice refused to companyoperate, we had to suffer a heavy loss, for which you are directly responsible. Thereafter, the respondent moved the Government to take action in the matter, and the result was that on November 16,1951, the U. P. Government issued a numberification under section 3 of the U. P. Industrial Disputes Act XXVIII of 1947, hereinafter referred to as the Act, referring the following dispute to the adjudication of the Industrial Tribunal Whether the services of workmen, if so how many, were terminated by the companycern known as Pipraich Sugar Mills Ltd., Pipraich, District Gorakhpur, without settlement of their due claims and improperly and if so, to what relief are the workmen companycerned entitled? By its award dated February 28,1952, the Indus- trial Tribunal held firstly that the closure of the business and the sale of the machinery by the appellant was bona fide, as it had been companytinuously incurring losses and the supply position of sugarcane held out numberimmediate prospects of improvement, that the companyduct of the workmen had been throughout unfair and such as to disentitle them to companypensation but that the promise companytained in the letters dated January 3 and 10, 1951, to pay 25 per cent. of the profits realised by the sale of the Mills, was binding on the management. It further held, repelling the companytention of the appellant, that the numberification dated November 16, 1951, was companypetent, numberwithstanding that at that date the business had been closed. The Tribunal then proceeded to ascertain the profits made by the appellant on its sale of the Mills, and held that a sum of Rs. 45,000 representing the 25 per cent. of the net profits was payable to the workmen. The management appealed against this decision but the same was companyfirmed by the Labour Appellate Tribunal by its order dated July 21, 1953. The matter number companyes before us. in appeal under art. 136. As the appeal raised questions of importance, and as the respondent was unrepresented we requested Mr. Umrigar to assist us, and we are indebted to him for his learned and companyprehensive argument. Two companytentions have been urged in support of the appeal The numberification dated November 16, 1951, referring the dispute to the adjudication of the Industrial Tribunal is ultra vires, and the reference and the award therein are in companysequence void and 2 there was numberconcluded or binding agreement by the appellant to pay the workmen any share of profits in the sale transaction and the award is therefore bad on the merits. Taking the first companytention, the provision of law under which the impugned numberification dated November 16, 1951, was issued by the State is section 3 of the Act, which runs as follows If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or companyvenience, or the maintenance of public order or supplies and services essential to the, life of the companymunity, or for maintaining employment, it may, by general or special order, make provision-- d for referring any industrial disputes for companyciliation or adjudication in the manner provided in the order. An industrial dispute, as defined in s. 2 k of the Industrial Disputes Act XIV of 1947-and by force of section 2, that definition applies to the Actmeans any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. Now, the companytention of the appellant is that it is a companydition precedent to the exercise by the State of its power under s. 3 of the Act that there should be an industrial dispute, that there companyld be numberindustrial dispute according to this definition, unless there is a relationship of employer and employee that in the present case, as the appellant sold its Mills, closed its business and discharged the workmen on March 21, 1951, paying to them in full whatever was due in accordance with the standing orders. there was thereafter numberquestion of any relationship of employer and employees between them that accordingly there was numberindustrial dispute at the date of the numberification on November 16, 1951, and that it was therefore incompetent. Reliance was placed in support of this position on the observation in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras 1 that the definition of an industrial dispute presupposes the companytinued existence of the industry, and on the decision in K. N. Padmanabha Ayyar v. The State of Madras 2 that there companyld be numberindustrial dispute with regard to a business, which was number in existence. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, A.I.R. 1953 Mad. 98, 102. 2 1954 1 L.L.J. 469. and then proceeds on to provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock-out, strike, lay off, retrenchment, companyciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and number one which is closed. In Messrs Burn and Co., Ltd., Calcutta v. Their Workmen 1 , this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might number be adversely affected and the larger interests of the public, might number suffer. Both these objects again can have their fulfillment only in an existing and number a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras supra and K. N. Padmanabha Ayyar v. The State of Madras supra that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly companyrect. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. N. Padmanabha Ayyar v. The State of Madras supra , fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so, if a dispute arises if one such can be companyceived-after the closure of the business between the quondam employer and em- ployees. In the light of the principles stated above, we must examine the nature of the dispute which is the subject-matter of the reference under the impugned numberification. The claim of the workmen is that the promise made by the management in its letters dated January 3, 1951, and January 10, 1951, is a binding agreement and that they are entitled to be paid in accordance therewith. Now, if this companytention is well founded, the dispute relates to a claim which arose Civil Appeal No. 325 of 1955, decided on October 11, 1956. while the industry was in existence and between persons who stood in the relationship of employer and employees, and that would clearly be an industrial dispute as defined in the Act. But it is argued for the appellant that even so, the numberification dated November 16, 1951, would be incompetent as the industry had been closed before that date, and there was therefore numberrelationship of employer and employee at that point of time. In other words, the power of the State to make a reference under section 3 will depend, according to the appellant, number only on the dispute having arisen in an existing industry but further, on the companytinued existence of that industry on the -date of the numberification. We do number find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other companyditions, with which we are number companycerned, that there should be an industrial dispute before there can be a ref- erence, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that companydition is satisfied, the companypetence of the State for taking action under that section is companyplete, and the fact that the industry has since been closed can have numbereffect on it. Any other companystruction would, in our opinion, result in serious anomalies and grave injustice. If a workman improperly dismissed raises an industrial dispute, and before action is taken by the Government the industry is closed, what happens to the right which the Act gives him for appropriate relief, if the Act vanishes into thin air as soon as the industry is closed? If the companytention of the appellant is companyrect, what is there to prevent an employer who intends, for good and companymercial reason, to close his business from indulging on a large scale in unfair labour practices, in victimisation and in wrongful dismissals, and escaping the companysequences thereof by closing down the industry? We think that on a true companystruction of s. 3, the power of the State to make a reference under that section must be determined with reference number to the date,on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which bad accrued prior to the dissolution of the business. It was next argued that even on this view, the numberification dated November 16, 1951, was incompetent inasmuch as the management had offered by its letter dated January 3, 1951, to pay the workmen 25 per cent. of the profits on the sale transaction only on April 30, 1951, and the right to the amount thus accrued to the workmen only after the closure of the business on March 21, 1951. But this argument proceeds on a misapprehension of the companyrect position on the facts. The true scope of the promise companytained in the letter dated January 3, 1951, is that the workmen acquired thereunder a right in praesenti to 25 per cent. of the profits, but that the amount became payable only on April 30, 1951, the reason obviously being that it companyld be precisely determined only after the transaction was companypleted. In this view, as the claim for share of profits arose on January 3, 1951, and January 10, 1951, when the industry was working, the reference dated November 16, 1951, would be valid, numberwithstanding that the business was closed on March 21, 1951. That brings us on to a companysideration of the second question, as to whether there was a companycluded agreement binding the appellant to pay 25 per cent. of the profits in. the sale transaction to the workmen. The Tribunal has answered it in the affirmative, and its finding was accepted by the Appellate Tribunal as, being one of fact, it had to be, under section 7 of the Industrial Dispute Appellate Tribunal Act No. XLVIII of 1950. It is argued by Mr. Umrigar that following the usual practice of this Court in special appeals number to disturb findings of fact by Tribunals unless there were exceptional grounds therefore we should number interfere with the finding of the Industrial Tribunal that there was a companycluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent and companyflicting findings, and it has companysequently become necessary for us to determine which of its findings should be accepted as supported by materials. We start with the letter dated January 3, 1951, wherein the management made an offer to pay 25 per cent. of the profits of the sale transaction to the workmen. It was expressly subject to the companydition that the strike should be called off at once and today. That was number done. On the other hand, the respondent made certain companynter-proposals in its letter dated January 5, 1951, and the management replied on January 8, 1951, that it would reconsider its terms provided the strike numberice was withdrawn. Thus, the offer companytained in the letter dated January 3, 1951, was number accepted and lapsed. Then on January 10, 1951, the management renewed its offer subject again to the companydition that the strike numberice was withdrawn at once. The respondent passed numberresolution withdrawing the numberice, and in its reply dated January 10, 1951, it made it clear that it was waiting for Kashinath Pandey for it to companye to a final decision. There was numberfurther companymunication from the Union. We do number see bow on this companyrespondence it companyld be held that there was a companycluded agreement between the parties, and that is the view which the Tribunal itself took of it when it observed that numberfinal agreement companyld be arrived at and companysequently the management served a numberice on 28th February 1951. But then, it went on to observe that, in fact, the workmen did number go on strike on January 12, 1951, and companytinued in service till they were served with numberice of discharge on February 28, 1951, that that was companysideration for the promise made by the agreement, which must therefore be taken to have become a term of service, and that in companysequence the promise of the management as companytained in the letters of 3rd and 10th January 1951, is a binding agreement under which the workmen are entitled to companypensation for termination of their services on the closure of the Mills. This argument rests on a companyfusion of thought. The question whether there was companysideration. for the promise made by the management in its letters dated January 3, and January 10, 1951 arises only if the offer companytained in the letters had been accepted by the respondent, so as to ripen into an agreement. And if there was numberconcluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by companysideration would number arise, number would there be any question of its becoming one of the terms of the service. It was argued that though a formal resolution withdrawing the strike was number passed, in fact there was numberstrike, and that must be taken to be acceptance of the offer by companyduct. That would number be acceptance as required by the appellant, and that alone would be sufficient to reject the companytention of the respondent. But this companytention must fail even on the merits. In its letter dated January 10, 1951, the respondent, while stating that the strike was number taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is number an acceptance of the offer. The matter does number rest there., The object of the strike was, it should be remembered, number anything directly companynected with the terms of employment but something companylateral to it. It was to prevent the Mills from being removed from Pipraich to Madras. When the management offered to part with 25 per cent. of the profits of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workmen ever agree to it? As late as March 5, 1951, Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale companyld number be interfered with, the workmen did number companyoperate with the management in the dismantling of the machinery with the result that the appellant had to give up the companytract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the companytract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if number the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a companycluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction. It was next companytended by Mr. Umrigar that even if there was numberconcluded agreement by the management to pay the workmen a share of profits on the sale transaction, it would have been open to the Tribunal to have awarded companypensation for the termination of their services, treating it as retrench- ment, and that the award of companypensation of Rs. 45,000 which was what the management itself had suggested, might be sustained on that footing. This companytention assumes that the termination of the services of workmen, on the closure of a business, is retrenchment. But retrenchment companynotes in its ordinary acceptation that the business itself is being companytinued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is however companytended by Mr. Umrigar that the definition of retrenchment in section 2 oo of the Industrial Disputes Act XIV of 1947 is wide enough to include discharge companysequent on the, closure of business, and that under section 25-F, companypensation companyld be awarded therefore Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory v. Labour Appellate Tribunal 1 , where it was held that retrenchment as defined in section 2 oo does number companyprehend discharge on the closure of business, but Mr. Umrigar companytends that it is erroneous. We do number companysider it necessary to decide this question, as the definition of retrenchment in section 2 oo of Act XIV 1947 and section 25-F therein were inserted by the Industrial Disputes Amendment Act No. XLIII of 1953, and we have held in Messrs Burn and Co., Ltd., Calcutta v. A I.R. 1956 All. 498. Their Workmen supra that this Act has numberretrospective operation. The rights of the parties to the present appeal must therefore be decided in accordance with the law as it stood on March 21, 1951, when the workmen were discharged. It was next companytended, on the strength of the decisions in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta 1 and Messrs Benett Coleman Company Ltd Their Employees 2 that even prior to the enactment of Act XLIII of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded companypensation on that footing and that the award of the Tribunal in the present case companyld be supported in that view and should number be disturbed. In Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta supra , the Tribunal observed at P. 576 as follows Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and numbermal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are number responsible for closing their jobs. In both the cases, what is called companypensation by way of retrenchment relief should be admissible. We are unable to agree with these observations. Though there is discharge of workmen both when there is retrenchment and closure of business, the companypensation is to be awarded under the law, number for discharge as such but for discharge on retrenchment, and if, as is companyceded, retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was numberquestion of closing of business in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation 1 1953 L.A.C. 563. 2 1954 L.A.C. 24. Limited, Calcutta supra , as what happened there was that one of the units of the companypany, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal in Messrs Benett Coleman Company Ltd. Their Employees supra , which further remarked at p. 27 Thus whether the closure was justified or number, the workmen who have lost their jobs would in any event get companypensation. If it was number bona fide or number justified, it may be that the measure of companypensation would be larger than if it was otherwise. For the reasons given above, we cannot assent to these observations. It, should be mentioned that in Messrs Benett Coleman and Company Ltd. v. Their Employee supra , there was numberclosure of business, but winding up of the Calcutta unit by a newspaper publishing companypany which had its headquarters at Bombay. We must accordingly overrule this companytention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workmen should number, in view of their companyduct, be awarded companypensation, and we entirely agree with it. And as we have found against the agreement, we must allow this appeal, and set aside the award of companypensation to the workmen made by the Tribunal.

Case appeal was accepted by the Supreme Court

Venkatarama Ayyar, J. The question that arises for decision in this appeal is whether sum of Rs. 1,23,719 paid by the respondent as companymission to its making agents on amount of profits of its Karachi branch can be allowed as deduction against the Indian profits. The respondent is a companypany registered under the Indian Companies Act, 1913, and is carrying on business in companyton. Its head office is in BOmbay, and it maintains a branch at Karachi of purchasing companyton for shipment to Bombay or export direct to other places. Separate accents are maintained and separate profit and loss statements are prepared for the business at Bombay and at Karachi. BY an agreement dated 22nd December Ltd., as its managing agents, and under clause 4 of the agreement, the remuneration payable to them was fixed at 20 per cent. Of the net annul profits. During the accounting year 1st October, 1947, to 30th September, 1948, the respondent made a total profit of Rs. 15,63,504, of which Rs. 9,44,905 was earned in the business at Bombay and Rs. 6,18,599 at Karachi. On this, the companymission payable to the managing agents as per clause 4 of the agreement was Rs. 3,12,699. The respondent debited a sum of Rs. 1,88,980 out of this amount in the profit and loss statement of the Bombay head office, being the 20 apportionable to the profits shown there in, and deducting this sum of the total profits of Rs. 9,44,905 showed a sum of Rs. 7,55,925 as the net profits of the business of Bombay. It likewise debited a sum of Rs. 1,23,719 to the profit and a loss statement of the Karachi branch, and deducting it out of the total profits of Rs. 6,18,599 earned by the branch, showed a sum of Rs. 4,94,879 as its net profits. The respondent is resident and ordinarily resident in India,. and therefore it would be chargeable to in companye tax its total world income. Accordingly, the Income tax office took into the account profits earned both in India nd in Karachi deducted therefrom the entire companymission paid to the managing agents, and after making certain adjustment, which are number material for the present purpose, determined the total income at Rs. 13,09,375. The companyrectness of this figure is number number in dispute. As part of this income was earned in Karachi, that the would also be chargeable to income tax in Pakistan. To avoid the hardship arising from the same income being subjected to taxation twice over in the two Dominions, section 49 b , provided that the Central Government may enter into an agreement with Pakistan for the avoidance of double taxation of income, profits and gains under this Act. And in exercise of the powers companyferred under this sectarian. a numberification was issued on the 10th December, 1947., providing for relief being granted against double taxation of income in the manner and to the extent provided therein. The Income Tax officer having ascertained the total income assessable to tax under the law of the this companyntry at Rs. 13,09,375 proceeded to determine the extent of the relief to be awarded to the respondent in respect of the profits earned in Karachi and chargeable under the law of the Pakistan. For this purpose, he accepted as c companyrect the sum of Rs. 4,94,879 which the respondent had shown as the net profits in the profits and loss statement for karachi, and after making certain adjustment and deductions in accordance with clause 4 of the agreement and item 7 a in the schedule annexed thereto, held that the amount in respect of which the respondent was entitled to abatement under the agreement was Rs. 5,00344. The assessee preferred to an appeal against this order to the Appellate Assistant Commissioner, and companytended that the Income Tax Officer was in error in taking Rs. 4,94,879 given in the profits and loss statement for Karachi as the profits of the Karachi branch, because this figure had been arrived at after the deducting a sum of Rs. 1,23,719 being the proportionate of the amount of the managing agency companymission but that the whole of it was payable at Bombay and was debatable to the head office, and that accordingly, the sum of Rs, 6,18,599 should have been taken as the profits of the branch and number Rs. 4,94,879. The Appellate Assistant Commissioner disagreed with this companytention, a nd companyfirmed the order of the Income Tax offer. The respondent took the matter in appeal to the Tribunal, which held that the terms of the managing agency agreement, the entire companymission was payable at bombay, and that the accordingly numberportion of it should be debited to the Karachi branch. In the result the appeal was to that the extent allowed. Thereupon, on the application of the Commissioner, the Tribunal referred the following question for the decision of the High Court. Whether on the fact and in the circumstance of the case, the amount of Rs. 1,23,719 paid to the managing agents as companymission at 20 of the net profits of the Karachi branch, is allowable as a revenue deduction against the Indian profits of the assess companypany for the year of account ? This reference was heard by Chagla, C.J. and Tendolkar, J. They observed that there was companysidered force in the companytention on behalf of the Commissioner that the abatement to which the assessee would be entitled under the Agreement between this companyntry and Pakistan would only with reference tot he net profits earned in Pakistan which alone would be assessable to income tax, and that the assessee firm itself having deducted sum of Rs. 1,23,719 as managing agency companymission expenses debatable to that the branch abatement should be allowable only in respect of Rs. 4,94,879 being the net proofs as declared by it. But they held following the decision in Birla Brothers Ltd. V. Commissioner of Income tax the hanging agency companymission should in its entirely be debited to the BOMBAY branch, even though the duty of the managing agents lay part in Karachi, and accordingly answered the reference in the affirmative. They, however, granted a certificate under section 66-A of the income TAx Act to appeal to this companyrt. That is how the Appeal companyes before us. On behalf of the Appellate, the learned Solicitor General companytended that the sum of Rs. 1,23,719 companyld number to be added to the sum of Rs. 4,94,879 as the profits assessable to income tax in Pakistan, because the entire companymission of Rs, 3,12,699 due under the agreement had been deducted out of the Rs. 15,63,504 the total income of the assessee, and it was only the net income of Rs. 12,50,804 that had been allocated Rs. 7,55,925 for the business at Bombay and Rs. 4,94,879 for the Karachi business, and that to disallow Rs. 1,23,719 which had been included in the profits and loss statement of Pakistan would be to give re lief twice over in respect of the same income. It was also companytended that as the assessee had itself deducted that the amount from the profits as business allowance in its profits and loss statement for karachi and obtained relief in Pakistan on that footing, it was number entitled to claim relief in respect of that very amount under the terms of the Agreement between the two Dominion, Forth respondent, Mr. Kolah companytended that under the provision of the Income TAx Act the respondent was number entitled to deduct Rs. 1,23,719, in the profits earned at Karachi, that in deducting that amount in the profits and loss statement for karachi the assessee had made mistake, and that, in fact, the Income Tax authorities in Pakistan who had originally admitted the deduction on the basis of the profits and loss statement had subsequently revised the assessment on the ground of error, and the had disallowed it., He further companytended that the question as to the relief to which the assessee was entitled under the Agreement between the two Dominions was number arise for companysideration., NOw, the question referred under section 66 I for the decision of the companyrt is simply whether the sum of Rs. 1,23,719 is allowable as deduction against the Indian profits of the companypany. and though there is some discussion in the judgment of the High Court on the scope of the Agreement between the two Dominions and the principles deducible from the provision thereof, the reference itself did number raise any such question, and we prefer number to express any opinion thereon. On the question of the admissibility of the deduction of Rs. 1,23.719 the companytention of the appellant is that as the respondent had itself split up the companymission of Rs. 3,12,699 paid to the managing agents, and the appropriated Rs. 1,23,719 thereof to the profits earned at Karachi and had debited th same with it, it was number entitled to go back upon it. and claim the amount as a deduction against the Indian profits. We do number see any force in this companytention. Whether the respondent is entitled to the particular deduction or number will dependent on the provision of law relating thereto and number on the view, which it might the take of its rights and companysequently, if the whole of the companymission is under the law liable to the deducted against the Indian profits, the respondent cannot be estoppel from claiming the benefit of such deduction, by reason of the fact that it erroneously allocated a part of it towards the profits earned in Karachi. What has therefore to be determined is whether, numberwithstanding the apportionment made by and the respondent in the profits and loss statement, the deduction is admissible under the law. Section 10 2 XV of the Indian Income TAx Act provided that in companyputing the profits of a business, allowances is to be made for any expenditure laid out or expended wholly and exclusively for the purpose of such business. Now, the respondent is carrying on business in companyton both in India and In Karachi. When an assessee carries on the same business at a number of places, there is for the purpose of section 10, only one business, and the net profits of the business have to be ascertained therefrom all the expenses. The fact that same of the branches are in foreign territories will make numberdifference in the position, if the assessee is as, in the present case, resident and ordinarily resident within the taxable territories. Therefore, the profits earned in India and in Karachi have to be thrown together, and the expenses including the companymissions payable to the managing agents deducted therefrom, and it is the net profits thus struck that become chargeable under the Act. That is how the Income tax Officer had worked out the figure. The respondent is therefore clearly entitled to the managing agents including the sum of Rs. 1,23,719 against the Indian profits. It should further be added that the apportionment of the Rs. 1,23,719 in the profit and loss statement of the on Which the appellant rests his argument is number warranted by the terms of the managing agency agreement, and is indeed opposed to them. Under that the agreement, the managing agents are entitled to a 20 companymission on the annual net profits of the companypany. and to the ascerta those profits one had to take into account the result of the trade in all its branches. In the present case, profits were earned during the accounting period both the in Bombay and in Karachi, and the apportionment of the companymission between the two branches makes numbermaterial difference in the result. But it might happens that the business at Bombay results in profits, while that at Karachi ends in loss. In that event, what the managing agents would be entitled to would be companymission number on the profits made in the BOMBAY but on the net profits after settings off the loss in the Karachi branch against the profits of the BOMBAY business. And that would also be the position if the business at Bombay resulted in loss, while that the Karachi ended in profits. The appropriation, therefore, of Rs. 1,23,719 as proportionate companymission in respect of the profits of Rs. 6,18,599 earned at Karachi in the profits and loss statement for that the branch is number in accordance either with the terms of the managing agency agreement or with the accordance either with the terms of the managing agency agreement, or with rights of the rights of the respondent under the law.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION CiVil Appeal No. 85 of 1956. Appeal from the judgment and order dated January 8, 1954, of the High Court of Saurashtra, at Rajkot, in Civil Misc. Application No. 70 of 1952. J. Kolah and A. C. Dave, for the appellant. Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956. November 23. The Judgment of the Court was, delivered by BHAGWATI J.-This appeal with a certificate of fitness granted by the High Court of Saurashtra raises an interesting question whether the agarias working in the Salt Works at Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the Industrial Disputes Act, 1947, hereinafter referred to as the Act. The facts as found by the Industrial Tribunal are number in dispute and are as follows. The appellants are lessees of the Salt Works from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land. The appellants require salt -for the manufacture of certain chemicals and part of the salt manufactured at the Salt Works is utilised by the appellants in the manufacturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders. The appellants employ a Salt Superintendent who is in charge of the Salt Works and generally supervises the Works and the manufacture of salt carried on there. The appellants maintain a a railway line and sidings and also have arrangements for storage of drinking water. They also maintain a grocery shop near the Salt Works where the agarias can purchase their requirements on credit. The salt is manufactured number from sea water but from rain water which soaking down the surface becomes impregnated with saline matter. The operations are seasonal in character and companymence sometime in October at the close of the monsoon. Then the entire area is parceled out into plots called pattas and they are in four parallel rows intersected by the railway lines. Each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after year. If the patta is extensive it is allotted to two agarias who work the same in partnership. At the time of such allotment, the appellants pay a sum of Rs. 400/- for each of the pattas and that is to meet the initial expenses. Then the agarias companymence their work. They level the lands and enclose and sink wells in them. Then the density of the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and companylected in the reservoirs called companydensers and re- tained therein until it acquires by natural process a certain amount of density. Then it is flowed into the pattas and kept there until it gets transformed into crystals. The pans have got to be prepared by the agarias according to certain standards and they are tested by the Salt Superintendent. When salt crystals begin to form in the pans they are again tested by the Salt Superintendent and only when they are of a particular quality the work of companylecting salt is allowed to be companymenced. After the crystals are companylected, they are loaded into the railway wagons and transported to the depots where salt is stored. The salt is again tested there and if it is found to be of the right quality, the agarias are paid therefore at the rate of Rs. 0-5-6 per maund. Salt which is rejected belongs to the appellants and the agarias cannot either remove the salt manufactured by them or sell it. The account is made up at the end of the season when the advances which have been paid to them from time to time as also the amounts due from the agarias to the grocery shop are taken into account. On a final settlement of the accounts, the amount due by the appellants to the agarias is ascertained and such balance is paid by the appellants to the agarias. The manufacturing season companyes to an end in June when the monsoon begins and then the agarias return to their villages and take up agricultural work. The agarias work themselves with their families on the pattas allotted to them. They are free to engage extra labour but it is they who make the payments to these labourers and the appellants have numberhing to do with the same. The appellants do number prescribe any hours of work for these agarias. No muster roll is maintained by them number do they companytrol how many hours in a day and for how many days in a month the agarias should work. There are numberrules as regards leave or holidays. They are free to go out of the works as they like provided they make satisfactory arrangements for the manufacture of salt. In about 1950, disputes arose between the agarias and the appellants as to the companyditions under which the agarias should be engaged by the appellants in the manufacture of salt. The Government of Saurashtra, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot. The appellants companytested the proceedings on the ground, inter alia, that the status of the agarias was that of independent companytractors and number of workmen and that the State was number companypetent to refer their disputes for adjudication under s. 10 of the Act. This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the agarias were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits. Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failed- to obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under Arts. 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ground that it was without jurisdiction. Pending the disposal of this writ petition, the appellants obtained stay of further proceedings before the Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the decision of the High Court. By their judgment dated January 8, 1954, the learned Judges of the High Court agreed with the decision of the Industrial Tribunal that the agarias were workmen within s. 2 .s of the Act and, accordingly, dismissed the application for writ. They, however, granted a certificate under Art. 133 1 c of the Constitution and that is how the appeal companyes before us. The sole point for determination in this appeal is whether the agarias working in the Salt Works of the appellants at Kuda are workmen within the definition of that term in s. 2 s of the Act. Workman has been thus defined in s. 2 s of the Act- s -Workman means any person employed including an apprentice in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does number include any person employed in the naval, military or air service of the Government . The essential companydition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be numberquestion of his being a workman within the definition of the term as companytained in the Act. The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of companytrol in respect of the manner in which the work is to be done. A distinction is also drawn between a companytract for services and a companytract of service and that distinction is put in this way In the one case the master can order or require what is to be done while in the other case he can number only order or require what is to be done but how itself it ,hall be done. Per Hilbery, J. in Collins v. Hertfordshire County Council 1 . The test is, however, number accepted as universally companyrect. The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. v. Macdonald and Evans 2 are apposite in this companytext But in Cassidy v. Ministry of Health 3 Lord Justice Somervell, pointed out that test is number universally companyrect. There are many companytracts of service where the master cannot companytrol the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell, went on to say One perhaps cannot get much beyond this Was the companytract a companytract of service within the meaning which an ordinary man would give under the words? I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a companytract of service when you see it, but difficult to say wherein the difference lies. A ships master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a companytract of service but a ships pilot, a taxi man, and a newspaper companytributor are employed under a companytract for services. One feature which seems to run through the instances is that, under a companytract of service, a man is employed as part of the business, and his work is done as an integral part of the business whereas., under a companytract for services, his work, although done for the business, is number integrated into it but is only accessory to it. We may also refer to a pronouncement of the House of Lords in Short v. J. W. Henderson, Ltd. 4 where Lord Thankerton recapitulated the four indicia of a companytract of service which had been referred to in the judgment under appeal, viz., a the masters power of selection of his servant, b the payment of wages or 1 1947 K.B. 598, 615. 2 1952 T.L.R. 101, Ill. 3 1951 1 T.L.R. 539, 543 s.c. 1951 2 K.B. 343, 352-3. 4 1946 62T.L.R. 427,429. other remuneration, c the masters right to companytrol the method of doing the work, and d the masters right of suspension or dismissal, but observed - Modern industrial companyditions have so much affected the freedom of the master in cases in which numberone companyld reasonably suggest that the employee was thereby companyverted into an independent companytractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia. For example, a , b and d and probably also c , are affected by the statutory provisions and ,rules which restrict the master, choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal. is similarly affected. These matters are also affected by trade union rules which are atleast primarily made for the protection of wage-earners. Even in that case, the House of Lords companysidered the right of supervision and companytrol retained by the employers as, the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship between the parties and affirmed that the principal requirement of a companytract of service is the right of master in some reasonable sense to companytrol the method of doing the work and this factor of superintendence and companytrol has frequently been treated as critical and decisive of the legal quality of relationship. The position in law is thus summarised in Halsburvs Laws of England, Hailsham edition, Vol. 22, page 112, para. 191- Whether or number, in any given case, the relation of master and servant, exists is a question of fact but in all cases the relation imports the existence of power in the employer number only to direct what work the servant is to do, but also the manner in which the work is to be done. and until the position is restated as companytemplated in Short J. W. Henderson Ltd., supra , we may take it as the prima facie test for determining the relationship between master and servant, The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and companytrol the work done by the servant number only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board v. Coggins Griffith Liverpool Ltd., and Another 1 , The proper test is whether or number the hirer had authority to companytrol the manner of execution of the act in question The nature or extent of companytrol which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. As has been numbered above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is number necessary for holding that a person is an employee, that the employer should be proved to have exercised companytrol over his work, that the test of companytrol was number one of universal application and that there were many companytracts in which the master companyld number companytrol the manner in which the work was done Vide observations of Somervell, L.J., in Cassidy v. Ministry of Health supra , and Denning, L.J., in Stevenson, Jordan and Harrison Ltd. v. MacDonald and Evans supra . The companyrect method of approach, therefore, would be to companysider whether having regard to the nature of the work there was due companytrol and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in Simmons v. Health Laundry Company 2 - In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct companytrol exercised over the person rendering the services by the person companytracting for them the stronger the 1 1947 1 A.C. 1. 23. 2 1910 1 K.B- 543, 54 550. grounds for holding it to be a companytract of service, and similarly the greater the degree of independence of such companytrol the greater the probability that the services rendered are of the nature of professional services and that the companytract is number one of service. The Industrial Tribunal on a companysideration of thes facts in the light of the principles enunciated above, came to the companyclusion that though certain features which are usually to be found in a companytract of service were absent, that was due to the nature of the industry and that on the whole the status of the agarias was that of workmen and number independent companytractors. It was under the circumstances strenuously urged before ,us by the learned companynsel for the respondents that the question as regards the relationship between the appellants and the agarias was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that question and had companye to its own companyclusion in regard thereto, that the High Court, exercising its jurisdiction under Arts. 226 and 227 of the Constitution, was number companypetent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also number interfere with that finding of fact. Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim Aboobakar v. Custodian General of Evacuee Property 1 It is plain that such a writ cannot be granted to quash the decision of an inferior companyrt within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice But once it is held that the companyrt has jurisdiction but while exercising it made a mistake, the wronged. party can only take the companyrse prescribed by law for setting matters right inasmuch as a companyrt has jurisdiction to decide rightly as well as wrongly. 1 1952 S.C.R. 696,702. There is companysiderable force in this companytention of the respondents. The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact. Learned companynsel for the appellants relied upon a passage from Batts Law of Master and Servant, 4th edition, at page 10- The line between an independent companytractor and a servant is often a very fine one it is a mixed question of fact and law, and the judge has to find and select the facts which govern the true relation between the parties as to the companytrol of the work, and then he or the jury has to say whether the person employed is a servant or a companytractor. This statement, however, rests upon a passing observation of Mc Cardie, J. in Performing Right Society Ltd. v. Mitchell and Booker Palais de Danse 1 and is companytrary to the oaten of authorities which lays down that whether or number in any given case the relation of master and servant exists is purely one of fact. Vide Halsburys Laws of England, Hailsham edition, Vol. 22, page 112, para. 191 Per Cozens- Hardy, M.R. at page 547 and Per Fletcher Moulton, L.J. at page 549 in Simmons v. Heath Laundry Company supra . It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is number liable to be questioned in proceedings under Art. 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence. Now the argument of Mr. Kolah for the appellants is that even if all the facts found by the Tribunal are accepted they only lead to the companyclusion that the agarias are independent companytractors and that the finding, therefore, that they are workmen is liable to be set aside on the ground that there is numberevidence to support it. We shall, therefore, proceed to determine the companyrectness of this companytention. Apart from the facts narrated above in regard to which there is numberdispute, there was the evidence of the Salt Superintendent of the appellants which was recorded before the Tribunal- 1 1924 1 K.B. 762. The panholders are allotted work on the salt pans by oral agreement. The Company has numbercontrol over the panholders in regard to the hours of work or days of work. The Companys permission is number sought in matter of sickness or in matter of going out to some village. The Company has numbercontrol over the panholders as to how many labourers they should engage and what wages they should pay them. The companypanys supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt. , The companypanys supervision is limited to this extent. The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt. Panholders are number the workmen of the Company, but are companytractors. The men, who are entrusted with pattas, work themselves. They can engage others to help them and so they do. There is upto this day numberinstance that any penholder who is entrusted with a patta, has number turned up to work on it. But we do number mind whether he himself works or number. If any penholder after registering his name for a patta gets work done by others, we allow it to be done. We own 319 pattas. Some patta8 have two partners. In some, one man does the job. ID all the pans, mainly the panholders work with the help of their respective families. Clause 6 of the agreement referred to in the companyrse of his evidence by the Salt Superintendent provided- We bind ourselves to work as per advice and instructions of the officers appointed by them in companynection with the drawing of brine or with the process of salt production in the pattas and if there is any default, negligence or slackness in executing it on our part or if we do number behave well in any way, the Managing Agent of the said Company can annul this agreement and can take possession of the patta, brine, well etc., and as a result we will number be entitled to claim any sort of companysideration or companypensation for any half processed salt lying in our patta or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc. There was also the evidence of Shiva Daya, an agaria, who was examined on behalf of the respondents- There is work of making enclosures and then of sinking wells. The companypany supervises this work. While the wells are being sunk, the companypany measures the density of the brine of wells. In order to bring the brine of wells to the proper density, it is put in a companydenser and then the Company tests this and then this brine is allowed to flow in the pattas The bottom of a patta is prepared after it is properly crushed under feet and after the companypany inspects and okays that it is alright, water is allowed to flow into it. When salt begins to form at the bottom of a patta, an officer of the companypany companyes and inspects it. At the end of 21 months, the water becomes saturated, i.e., useless, and so it is drained away under the supervision of the companypany. Then fresh brine is allowed to flow into the patta from the companydenser. This instruction is also given by the companypanys officer. It was on a companysideration of this evidence that the Industrial Tribunal came to the companyclusion that the supervision and companytrol exercised by the appellants extended to all stages of the manufacture from beginning to end. We are of opinion that far from there being numberevidence to support the companyclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it companyld companye to the companyclusion that the agarias are number independent companytractors but workmen within the meaning of the Act. Learned companynsel for the appellants laid particular stress on two features in this case which, in his submission, were companysistent only with the position that the agarias are independent companytractors. One is that they do piece-work and the other that they employ their own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as, the agaria8 are under numberobligation to work for fixed hours or days and are to be paid wages number per day or hours but for the quantity of salt actually produced and passed, at a certain rate,, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent companytractors. There is, however, abundant authority in England that a person can be a workman even though he is paid number per day but by the job. The following observations of Crompton, J. in Sadler Henlock 1 are pertinent in this behalf - The test here is, whether the defendant retained the power of companytrolling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, number of companytractor and companytractee. See also Blake, v. Thirst 2 and Halsburys Laws of England , Hailsham edition, Vol. 22, page 119, para. 194, wherein it is stated that if a person is a worker and number a companytractor, it makes numberdifference that his work is piece- work . As regards the second feature relied on for the appellants it is companytended that the agaria8 are entitled to engage other persons to do the work, that these persons are engaged by the agaria8 and are paid by them, that the appellants have numbercontrol over them and that these facts can be reconciled only with the position that the agaria8 are independent companytractors. This argument, however, proceeds on a misapprehension of the true legal position. The broad distinction between a workman and an independent companytractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is, therefore, a workman does number cease to be such by reason merely of the fact that he gets other persons to work along 1 1855 4 El. Bl. 570, 578 1855 119 E.R. 209, 212. 2 1863 32 L.J. Exchequer 188. with him and that those persons are companytrolled and paid by him. What determines whether a person is a workman or an independent companytractor is whether he has agreed to work personally or number. If he has, then he is a workman and the fact that he takes assistance from other persons would number affect his status. The position is thus summarised in Halsburys Laws of England, Vol. 14, pages 651-652- The workman must have companysented to give his personal services and number merely to get the work done, but if he is bound under his companytract to work personally, he is number excluded from the definition, simply because he has assistance from others, who work under him. See also Grainger v. Aynsley Bromley v. Tams 1 Weaver Floyd 2 and Whitely v. Armitage a . In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, be workmen. The fact that they are free to engage others to assist them and pay for them would number,in view of the above authorities, affect their status as workmen. There are numberdoubt companysiderable difficulties that may arise if the agarias were held to be workmen within the meaning of s. 2 s of the Act. Rules regarding hours of work etc., applicable to other workmen may number be companyveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are numberdeterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well companysider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may number be able to regulate the work to be done by the aqarias and the remuneration to be paid to them by the employer in 1 1881 6 Q.B.D. 182. 2 1852 21 L.J., Q.B. 151. 3 1864 16 W.R. 144. the manner it is used to do in the case of other industries here the companyditions of employment and the work to be done by the employees is of a different character. These companysiderations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do number, however, militate against the companyclusion which we have companye to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term companytained in s. 2 s of the Act was justified on the materials on the record.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 53 and 54 of 1956. Appeals by special leave from the judgment and order dated May 31, 1955, of the Patna High Court in Criminal Revision No. 102 of 1955, arising out of the judgment and order dated January 10, 1955, of the Court of the Sessions Judge of Manbhum-Singhbhum of Purulia in Criminal Re-vision No. 43 of 1954. Mahabir Prasad, Advocate-General of Bihar, Tarakesh. war Nath and S. P. Verma, for the appellant in Appeal No, 53 and for respondent No, 3 in Appeal No. 54, J. Umrigar and A. G. Ratnaparkhi, for the appellant in Appeal No. 54. Jai Gopal Sethi and Govind Saran Singh, for the respondents in Appeal No. 53 and for respondents Nos. 1 and 2 in Appeal No. 54. 1957. January 31. The Judgment of the Court was delivered by JAGANNADHADAS J.-These appeals arise out of an order of discharge passed by the Subordinate Judge-Magistrate of Dhanbad under s. 494 of the Code of Criminal Procedure on his companysenting to the withdrawal of the Public Prosecutor from a prosecution pending before him in so far as it was against the appellant. Mahesh Desai, one of the accused therein. The prosecution was launched on the first information of one Ram Naresh Pandey as against 28 persons about the companymission of the murder of one Nand Kumar Chaubey, a peon of a companyliery in Bagdigi, companymitted in the companyrse of a serious riot on February 20, 1954. This was said to have resulted from differences between two rival labour-unions in companynection with a strike. The prosecution as against most of the other persons is under various sections of the Indian Penal Code including s. 302, on the ground of their actual participation in the companymission of the murder. But as against the appellant, Mahesh Desai, it is only under s. 302 /109 of the Indian Penal Code, the part ascribed to him in the first information report being that he abetted the murder by reason of certain speeches and exhortations at meetings or group-talks the day previous to the murder. The application for withdrawal as against the appellant was made on December 6, 1954, when the matter was pending before the Magistrate in the companymittal stage and before any evidence was actually taken. It was made by the Public Prosecutor on the ground that on the evidence available it would number be just and expedient to proceed with the prosecution of Sri Mahesh Desai and that therefore it was necessary to withdraw the case against Sri Mahesh Desai only . It was elicited in the companyrse of the arguments before the learned Magistrate. that the position of the Public Prosecutor was, that the evidence regarding the companyplicity of this accused was meagre and that there WAS only, a single item of evidence of a dubious nature against him. which was number likely to establish a prima facie case. The learned Magistrate dealt with the ,matter in a fairly reasoned order and was of the opinion that there was numberreason to withhold the companysent that was applied for. He accordingly discharged the accused. That-order was upheld by the learned Sessions Judge on, revision petition against it filed jointly by the first informant in the case and by the, widow of the murdered person. These private parties pursued the matter further and applied to the High Court in revision. The learned Chief Justice who dealt with it was of the opinion that the companysent should number have been granted. Accordingly, he set it aside. The learned Chief Justice recognised that numbermally in a matter of this kind the High Court should number interfere. But he felt called upon to set aside the order on the ground that ,there wag numberjudicial exercise of discretion in the present case. He, therefore, directed that the Magistrate should record the evidence and then companysider whether it establishes a prima facie case against the appellant, Mahesh Desai. The Advocate General of the State has companye up before this Court against the order of the learned Chief Justice. Leave was granted because it was urged that the view taken by the learned Chief Justice was based on an erroneous appreciation of the legally permissible approach in a matter of this kind and that the decision of the learned Chief Justice was likely to have repercussions in the State -beyond what was involved in the particular case. The aggrieved party, Mahesh Desai, also has companye up by special leave and both these appeals are disposed of by this judgment. The,question of law involved may be gathered from the following extracts from the learned Chief Justices judgment. This is number a case where there is numberevidence on the companytrary, this is a case where there is evidence which requires judicial companysideration The procedure which the learned Special Magistrate followed was tantamount to companysidering the sufficiency or otherwise of evidence before the evidence has been heard The function of the Court would be surrendered to the Public Prosecutor. I do. number think that s. 494 of the Code of Criminal Procedure justifies, such a procedure The legal question that arises from the above is whether where an application for withdrawal under s. 494 of the Code of Criminal Procedure is made on the ground of insufficiency or meagreness of reliable evidence that is available, it is an improper exercise of discretion for the Court to grant companysent before evidence is taken, if it was reasonably satisfied, otherwise, that the evidence, if actually taken, is, number likely to result in- companyviction. Section 494 of the Code of Criminal Procedure runs as follows Any Public Prosecutor may, with the companysent of the Court, in cases tried by jury. before the returns of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecutions of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal,- a if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences b if it is made after a charge has been framed, or when under this Code numbercharge is required, he shall be acquitted in respect of such offence or offences. The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its companysent to withdraw from the prosecution of any person. The companysent, if granted has to be, followed up by his discharge or acquittal, as the case may be. The -section gives numberindication as to the, grounds on which the Public Prosecutor may make the application, or the companysiderations- on, which the Court is -to grant its companysent. There can be numberdoubt, how ever, that the resultant order, on the granting of the companysent, being an order of I discharge or acuittal, would attract the applicability of companyrection by the High Court under es. 435, 436 and 439 or 417 of the Code of Criminal Procedure. The function of the Court, therefore, in granting its companysent may well be ,taken to be a judicial function. It follows that in granting the companysent the Court must exercise a judicial discretion. But it does number follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of s. 494 would become companysiderably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind, The initiative is that of the Public Prosecutor and what the Court has to do is only to give its companysent and number to determine any matter judicially. As the Privy Council has pointed out in Bawa Faqir Singh v. The King Emperor 1 It section 494 of the Code of Criminal Procedure gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the companysent of the Court,, which may be determined on many possible grounds. The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the companysent would numbermally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has number been improperly exercised, or that it is number an attempt to interfere with the numbermal companyrse of justice for illegitimate reasons or purposes. In this companytext it is right to remember that the Public Prosecutor though an executive officer as stated by the Privy Council in Bawa Faqir Singh v. The King Emperor 1 is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this companyntry, the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences which are classified as companynizable offences is on the executive authorities. Once information of the companymission of any such offence reaches the companystituted 1 1938 L. R. 65 I. A. 388, 395. authorities, the investigation, including companylection of the requisite evidence, and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in the companyrse of these stages. For instance, in the companyrse of investigation, a person arrested must be brought before him within 24 hours s. 61 of the Code of Criminal Procedure . Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him s. 167 . A search can be companyducted on the issue of warrant by him s. 96 . Statements of witnesses and companyfessions may be recorded by him s. 164 . In an appropriate case he can order investigation or further investigation ss. 155 2 and 202 . In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is his. His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and is number a prima facie judicial determination of any specific issue,. The Magistrates functions in these matters are number only supplementary,. at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the companysent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need number always companyform to the standard of numberprima facie case under ss. 209 1 and 253 1 or of groundlessness under ss. 209 2 and 253 2 . This is number to say that a companysent is to be lightly given on the application of the Public, Prosecutor, without a careful and proper scrutiny of the grounds on which the application for companysent is made. A large number of cases from the various High Courts have been cited before us. We have carefully gone through them. All of them recognise that the function of the Magistrate in giving companysent is a judcial one open to companyrection. But in some of them there is numbersufficient appreciation of the respective positions of the Public prosecutor and the Court, in the discharge, of their functions under s. 494 as we companyceive. them to be. There is, however, a general companycurrence-at least in the, later cases-that the. application for companysent may legitimately be made by the Public Prosecutor for reasons number companyfined to the judicial prospects of the prosecution. See The King v. Moule Bux 1 and. The King v. Parmanand 2 . If so, it is clear that, what the Court has to determine, for the exercise of its discretion in granting or withholding companysent, is number a triable issue on judicial evidence. Learned companynsel for the respondents has strenuously urged before us that while this may be so where the companysent is applied for on other grounds, or for other reasons, the position would number be the same, where the application for companysent is made on the ground of number evidence or numberadequate or reliable evidence. It is urged that in such a case, the Court can exercise its, judicial function, only with, reference to judicially recorded evidence as in one or other of the appropriate situations companytemplated by the Code for judicial inquiry or trial. If this argument means anything it must mean that in such a situation the Court before granting companysent must hold a kind of preliminary inquiry into the relevant evidence in much the same way as, for instance. when a Magistrate acting under s. 202 of the Code of Criminal Procedure may direct or it must mean that numberconsent can at all be given on such a ground and that the Court must proceed with the prosecution, and either discharge or acquit under one or other of the other sections in the Code enabling hereunto. It appears to us that this would be engrafting, on the, wide terms of s. 494 an exception or proviso limited to such a case. In our opinion, this would number be a permissible companystruction of the section. We are, therefore, unable, with great respect, to subscribe to the view taken by the learned Chief A.I.R. 1949 Pat233 F.B. . A.I.R. 1949 Pat. 222, 226 F.B. . Justice whose judgment is under appeal, that where the application is on the ground of inadequacy of evidence requiring judicial companysideration, it would be manifestly improper for the Court to -consent to withdrawal before recording the evidence and taking it into companysideration. We are number to be understood, however, as implying that such evidence as may already have been recorded by the, time the application is made is number to be looked into and companysidered in such cases, in order to determine the impropriety of the withdrawal as amounting to abuse or an improper interference with the numbermal companyrse of justice. Learned companynsel for the respondents has raised a fresh point before us for maintaining the order of the High Court setting aside the discharge of the appellant by the -Magistrate. The point being purely one of law, we have allowed it to be argued. His companytention is that in a case triable by a Court of Session, an application by the Public Prosecutor for withdrawal with the companysent of the Court does number lie in the companymittal stage. He lays emphasis on the wording of s. 494 which says that in cases tried by jury, any Public, Prosecutor may, with the companysent of the Court, withdraw from the prosecution of any person before the return of the verdict. This, according to him, clearly implies that such withdrawal cannot be made until the case reaches the trial stage in the Sessions Court. He also relies on the further phrase in the section either generally or in respect of any one or more of the offenses for which he is tried. The use of the word tried in this phrase. companyfirms, according to him, the companytention that it is only when the case reaches the stage of trial that s. 494 can be availed of. He draws our attention to a passage in Archbolds Criminal Pleading, Evidence and Practice 32nd Ed. ,pp. 108, 109, s. 12, that a numberle prosequi to stay proceedings upon an indictment -or information pending in any Court may be entered, by leave of the Attorney General, at the instance of either the prosecutor or the defendant at any time after the bill of indictment is signed, and before judgment. He urges that it is this principle that has been recognised in the first portion of s. 494 of the Code of Criminal Procedure. It appears to us that the analogy of the English practice would be misleading as an aid to the companystruction of s. 494. The scheme of our Criminal Procedure Code is substantially different. The provision companyresponding to the power of the Attorney-General to enter numberle prosequi is s. 333 of the Code of Criminal Procedure which refers to jury trials in High Court. The procedure under s. 494 does number companyrespond to it. The phrase in other cases before the judgment is pronounced in s. 494 would, in the companytext, clearly apply to all cases other than those tried by jury. Now, there can be numberdoubt that at least as regards these other cases, when the companysent for withdrawal is given by the Court, the result is either a discharge or an acquittal, according to the stage to which that case has reached, having regard to the two alternatives a and b of s. 494 of the Code of Criminal Procedure. It follows that at least in every class of cases other than those tried by jury, the withdrawal can be at any stage of the entire proceedings. This would include also the stage of preliminary inquiry in a Sessions case triable without a jury. But if the argument of the learned companynsel for the respondents is accepted, that power cannot be exerciser at the preliminary inquiry stage, only as regards cases which must lead to a jury trial. We can find numberconceivable reason for any such discrimination having been intended and prescribed by the Code. We are unable to companystrue s. 494 as involving any such limitation. The wording is perfectly wide and general and would apply to all classes of cases which are capable of terminating either in a discharge or in an acquittal, according to the stage at which the section is invoked. The whole argument of the learned companynsel is based upon the use of the word ,tried and he ehaphasises the well-known distinction between inquiry and trial in the scheme of the Code. Our attention has also been drawn to the definition of the word inquiry in s. 4 k of the Code which runs as follows Inquiry includes every inquiry other than a trial companyducted under this Code by a Magistrate or Court. There is hardly anything in this definition which throws light-on the question whether the word trial, is used in the relevant section in a limited sense as excluding an inquiry. The word trial is number defined in the Code. Trial according to Strouds Judicial Dictionary means the companyclusion, by a companypetent tribunal, of questions in issue in legal proceedings, whether civil or criminal 1 and according to Whartons Law Lexicon means the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land 2 . The words tried and trial appear to have numberfixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words tried and trial have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the companytext in which they are used. There is numberreason why where these words are used in another companytext in the Code, they should necessarily be limited in their companynotation and significance. They are words which must be companysidered with regard to the particular companytext in which they are used and with regard to the, scheme and purpose of the provision under companysideration. An argument has also been advanced by the learned Counsel for the respondents before us by referring to the word judgment in the phrase in other cases before the judgment is pronounced in s. 494 as indicating that the phrase in other oases can refer only to proceedings which end in a regular judgment and number in any interim order like companymitment. Here again the difficulty in the way of the companytention of the learned Counsel being accepted, is that the word judgment is number defined. It is a word of general import and means only judicial determination or decision of a Court. See Whartons Law Lexicon, 14th Ed., p. 545 . There is numberreason to think in the companytext of this section that it is number applicable to an order of companymittal which terminates the proceeding so far as the inquiring Court Strouds judicial Dictionary, 3rd Ed., VOl. 4, P. 3092. Whartons Law Lexicon, 14th Ed., p. 101. is companycerned. It may be, that in the companytext of Chapter XXVI of the Code judgment may have a limited meaning. In any view, even if judgment, in this companytext is to be understood in a limited sense, it does number follow that an application during preliminary inquiry-which is necessarily prior to judgment in the trial-is excluded. The history of s. 494 of the present Code of Criminal Procedure Act V of 1898 companyfirms the above view. The provision for withdrawal by the Public Prosecutor with the companysent of the Court appears, for the first time, in the Code of Criminal Procedure, 1872 Act X of 1872 as s. 61 thereof and runs as follows The public prosecutor may, with the companysent of the Court withdraw -any charge against any person in any case of which he is Charge and upon such withdrawal, if it, is made whilst the case is under inquiry, the accused person shall be discharged. If it is made when he is under trial, the accused person shall be acquitted. In the next Code of 1882 Act X of 1882 this appears as s. 494 thereof and runs as follows Any Public Prosecutor appointed by the Covernor-General in Council or the Local Government may, with the companysent of the Courts, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution. of any person and, upon such withdrawal, a if it is made before a charge has been framed, the accused shall be discharged b if it is made after a charge has been framed, or when under this Code, numbercharge is required, he shall be acquitted. It may be numbericed that there has been a companyplete redrafting of the section which brings about two alterations. this section seems to have remained as such in the 1898 Code Act V of 1898 . The next modification in the section appears to have been made by Act XVIII of 1923 -which inserted the phrase either generally or in respect of any one or more of the offences for which he is tried in the appropriate place in s. 494 as it stood in the 1882 Code in addition to omitting the phrase appointed by the Governor General in Council or Local Government . The present s. 494 is the companyresponding section in the 1882 Code as so altered. It will be thus seen there are altogether three substantial changes in between 1872 and 1923 in the companyresponding s. 61 of the 1872 Code. The first two changes made in 1882 were obviously intended to indicate that the result by way of discharge or acquittal should depend number on the distinction between inquiry and trial but, on the fact of a charge having been framed or number having been framed. The second was to clarif that the application can be made generally up to tie point when judgment is pronounced but to provide for an exception thereto in respect of cases which in fact have gone up for a jury trial, in which case the applicati on can be made only up to the point of time before the verdict is pronounced. The third change in 1923 was to make it clear that the withdrawal need number be in respect of the entire case against a particular individual but in respect of one or more only of the charges for which he is being prosecuted. These three changes, therefore, were introduced for spcific purposes which are obvious. The section as it originally stood in 1872 was quite wide enough to companyer all classes of cases number excluding even jury cases when it is in the stage of preliminary inquiry. There is absolutely numberreason to think that these successive, changes were intended to exclude such a preliminary inquiry from the scope of s. 494 as it has finally emerged. It may also be mentioned that the words inquiry and trial were both defined in the Code of 1872 but that the definition of the word trial was omitted, in the 1882 Code and that latter on in the 1898 Code the definition of the word inquiry was slightly altered by adding the ,phrase Other than a trial leaving the, word trial undefined. These various legislative changes from time to time with reference to s, 494 and the definition of the word inquiry companyfirm the view above taken that s. 494 is wide enough to companyer every kind of inquiry and trial and that the word trial in the, section has number been used in any limited sense. Substantially the same view has been taken in Giribala Dasee v. Madar Gazi 1 and Viswanadham v. Madan Singh 2 and we are in agreement with the reasoning therein as regards this question. As regards the merits of the appeals, the matter lies in a short companypass. AB already stated the application by the Public Prosecutor was made before any evidence was taken in the companymittal stage. The only materials then available to the Public Prosecutor or to the Court were the companytents of the first information report and any statements of witnesses that may have been taken by the police during investigation. What is alleged against the appellant, Mahesh Desai, in the first information report can be gathered from the following These persons, viz., Mahesh Desai and others,regularly held meetings and advocated for closing Bagdigi cable plant and companye plant and assaulting the dalals. Yesterday, Friday morning when some labourers were going to resume their work in 8 No. pit, at Lodna the striking labourers created disturbance there and the labourers of that place who were going to resume work companyld number do so. At about 11 a. m. Mahesh Desai the leader of the Koyala Mazdoor Panchayat came to Bagdigi and told the labourers of this place to stop all work, to hold on to their posts and to see that numberone worked. At the instance of Mahesh Desai the labourers stopped the work. Last night at about 11-30 p.m. when I was in my quarter at Lodna, Jadubans Tiwary, the overman of Bagdigi Colliery, said that Sheoji Singh and Ramdhar Singh had told him that in the evening at about 6-30 p.m. Mahesh Desai came to Bagdigi Mahabir Asthan Chala, companylected 120 to 125 labourers and held a meeting and Mahesh Desai said that he had companye to know that the companypany and its dalals would take some labourers to pit No. 10 this morning to resume the work and they would get the work resumed by them. In this morning Phagu Dusadh, Jalo Dusadh, Chamari Dusadh and others were sic took part. Mahesh Desai said to 1 1932 I.L.R. 6o Cal. 233. I.L.R. 1949 Mad. 64. them You go to your respective works and see that numberone works there happen what may. You remain, prepared in every respect. The labourers of Lodna will also companye to your help. The police will number be able to do any harm to you . The meeting dispersed at about 7-30 oclock. Mahesh Desai went by his Jeep from Mahabir Asthan to pit No. 10 and told the labourers there to stick to their strike. Then Phagu, Jalo and Haricharan Dusadh of Bagdigi began to talk with him near the Jeep. Jadubans Tewary heard Mahesh Desai saying It is necessary for us to finish the dalals for achieving victory. You remain prepared for this. Saying this he boarded his Jeep and at the end Mahesh Desai said to Phagu, Haricharan and Jalo Dusadh Finish all. What will happen will be seen . Thereafter Mahesh Desai went away by his Jeep and Phagu. Jalo and Haricharaa came back. The first information report companytinues to state what all happened the next day by way of rioting, etc. in the companyrse of which Phagu, Jalo and Haricharan Dusadh, along with others were said to have chased Nand Kumar Chaubey and wherein Phaou gave a pharsa blow and Haricharan a lathi blow to him and Nand Kumar Chaubey fell down dead. In the closing portion of the first information report the informant states as follows I make this statement before you that having, instigated yesterday evening in the meeting and having instigated Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh near pit No. 10, and having got a mob of about one thousand persons companylected to-day in the morning by Harbans Singh and other workers of his union Mahesh Desai got the murder of Nand Kumar Chaubey companymitted by Phagu Dusadh, Jalo Dusadh and Haricharan Dusadh to-day at 8-15 a.m. with lathi and pharsa. It is clear from this that what is ascribed to Mahesh Desai is that he is alleged to have exhorted the laborers once in -the morning at 11 a.m. and again in the night at 6-30 p.m. as also at 7-30 p.m. As regards the exhortation at 11 a. m. it is number quite clear from the first information report whether the informant speak, to his personal knowledge or what he heard from the labourers. As regards what is said to have transpired at 6-30 p.m. and 7-30 p.m., it appears to be reasonably clear that the person who gave the information to the informant was Jadubans Tiwary and that his information itself was probably based on what Sheoji Singh and Ramdhar Singh had told him. It would be seen, therefore, that the prosecution must depend upon the evidence of Jadubans Tiwary, and possibly of Sheoji Singh and Ramdhar Singh and that what these three persons companyld speak to was at best only as to the exhortation made by Mahesh Desai at the various stages. Presumably, these witnesses were examined by the police in the companyrse of the investigation. Now, on this material, we find it difficult to appreciate why the opinion arrived at by both the trial companyrt and the Sessions Court that the view taken of that material by the Public Prosecutor, viz., that it was meagre evidence on which numberconviction companyld be asked for, should be said to be so improper that the companysent of the Court under s. 494 of the Code of Criminal Procedure has to be withheld. Even the private companyplainant who was allowed to participate in these proceedings in all its stages, does number, in his objection petition, or revision petitions, indicate the availability of any other material or better material. Nor, companyld the companyplainants companynsel, in the companyrse of arguments before us inform us that there was any additional material available. In the situation, therefore, excepting for the view that numberorder to withdraw should be passed in such cases either as a matter of law or as a matter of propriety but that the matter should be disposed of only after the evidence, is judicially taken, we apprehend that the learned Chief Justice himself would number have felt called upon to interfere with the order of the Magistrate in the exercise of his revisional jurisdiction., We are, therefore, clearly of the opinion, for all the above reasons, that the order of the High Court should be set aside and the appeals allowed. Accordingly, the order of the trial companyrt is hereby restored. There -was some question raised before us as to whether the private companyplainants companyld be allowed, to participate in these proceedings at the various stages. Nothing that we have -said is intended to indicate that the private companyplainant has a locus standi. It is unfortunate that this prosecution which is still pending at its very early stages has got to be proceeded with against all the rest of the accused, after the lapse of nearly three years from the date of the murder.

Case appeal was accepted by the Supreme Court

Das, C.J. This is an appeal filed with special leave granted by this companyrt on the 18th of May, 1954, questioning the companyrectness of the judgment and order of the High Court of Punjab dated the 25th June, 1953, delivered in an application under section 66 2 of the Indian Income-tax Act, 1922, whereby the High Court dismissed the appellants application on the ground that numberquestion of law arose from the order of the Income-tax Appellate Tribunal dated the 4th November, 1949. The facts are shortly as follows The appellant, who is a resident of Simla, is a forest companytractor and had taken certain forests on lease in 1942-43 in the erstwhile Indian State of Jubbal for exploitation. The work of felling of trees and extraction of timber companytinued up to 1945-46. No profit or loss account had been prepared for each of the aforesaid four years separately, but a companysolidated balance-sheet and profit and loss account had been drawn up for all the four years. In the appellants Income-tax returns, the income from the forest business was calculated and shown by applying the rate of ten per cent. net on the sales made in the relevant years. In companyrse of the assessment proceedings for the assessment year 1943- 44, it transpired that the appellant, who was resident and ordinarily resident in British India, had in the relevant accounting year 1942-43 sold in Jubbal a quantity of timber in one lot to a single party named Sukh Dial Jagat Ram, a firm carrying on business in Abdullapore in the district of Ambala, for a sum of Rs. 1,91,000 rupees one lakh ninety- one thousand . By his assessment order dated the 2nd February, 1948, the Income-tax officer held that on the sale of timber of the value of Rs. 1,91,000 during the relevant accounting period 1942-43, the appellant had made a profit of Rs. 20,967. As, however, numberpart of the sale proceeds was received during the relevant accounting period, the income from the forest business, less the statutory exemption of Rs. 4,500 was taken into companysideration only for the purpose of fixing the rate. The profits made on sales during the three succeeding accounting periods 1943-44, 1944-45 and 1945-46 were also determined by the Income-tax officer as indicated in his assessment order. On appeal by the appellant, the Appellate Assistant Commissioner allowed certain expenses, which had been disallowed by the Income-tax Officer, so that the total income from the forest business was reduced. The profit on the sale of timber during the accounting year 1942-43 was accordingly reduced from Rs. 19,767 and the profits for the three succeeding accounting years were proportionately reduced. On further appeal to the Income-tax Appellate Tribunal, the profits were further reduced by the allowance of a further sum of Rs. 5,000 so that the profit of the accounting year 1942-43 was finally ascertained and determined to be Rs. 18,758. In companyrse of assessment for the assessment year 1944-45, it transpired that out of the purchase price of Rs. 1,91,000 for timber sold in the accounting year 1942-43 in the following manner Rs. 1,25,000 received in cash in Jubbal State. Rs. 29,000 received in cash by the appellant in British India. Rs. 3,000 paid in cash in British India to a companytractor named Sita Ram, who was a creditor of the appellant. The Income-tax Officer took the view that the sums of Rs. 29,000 and Rs. 3,000, aggregating to Rs. 32,000, received in the relevant accounting year 1943-44 included the entire profit that had accrued or arisen to the appellant on the sale of timber in 1942-43 for Rs. 1,91,000 and such profit was assessable to tax under section 4 1 b iii as income, profits and gains accrued or arisen to the appellant without British India before the beginning of the previous year, that is to say, in the accounting year 1942-43 and brought into or received in British India during the relevant accounting year 1943-44 and assessed accordingly. On appeal by the appellant the Appellate Assistant Commissioner upheld the decision of the Income-tax Officer. On further appeal by the appellant the Income-tax Appellate Tribunal took the same view and dismissed the appeal. The Appellate Tribunal, in agreement with the Income-tax authorities, held that the two payments in British India had been made by the purchaser according to the instructions of the appellant and were companysequently tantamount to companystructive remittances of those amounts from Jubbal State to British India and that the profits, in the absence of any evidence adduced by the appellant to the companytrary, must be regarded as remittances of profits. Being aggrieved by the decision of the Appellate Tribunal, the appellant applied to the Appellate Tribunal under section 66 1 of the Indian Income-tax Act, 1922, praying that the Appellate Tribunal might state a case and refer to the High Count the following questions of law Whether, in the circumstances of the case, there is any material for the finding that instead of direct remittance the assesses has chosen to instruct a debtor in Jubbal State to discharge a part of his debt by making the payment of Rs. 32,000 in British Indi ? Whether, in the circumstances of the case, the receipt of Rs. 32,000 has been companyrectly held to be a companystructive remittance from Jubbal State to British Indi ? Whether, in the circumstances of the case, it has been companyrectly held that the assesses remitted the entire profits of the account year 1942-43 in the sum of Rs. 32,00 ? Is there any evidence to support the finding of the Appellate Tribunal that the sale proceeds of Rs. 32,000 received in British India includes entire profits earned or accrued in Jubbal State in the account year 1942-4 ? Whether there is any material on the record to justify a companyclusion that the sum of Rs. 32,000 received in British India was income and therefore liable to be taxe ? Question No. v , however, was withdrawn by the appellant and the Appellate Tribunal by its order dated 7th August, 1950, dismissed the application in respect of the other questions. The appellant thereupon applied to the High Count of Punjab under section 66 2 of the Indian Income-tax Act, 1922, praying that the Income-tax Appellate Tribunal be directed to state the case and refer the following questions of law Whether, in the circumstances of the case, there is any material for the finding that instead of direct remittance the assesses has chosen to instruct a debtor in Jubbal State to discharge a part of his debt by making the payment of Rs. 32,000 in British Indi ? Whether, in the circumstances of the case, the receipt of Rs. 32,000 has been companyrectly held to be a companystructive remittance from Jubbal State to British Indi ? Whether, in the circumstances of the case, it has been companyrectly held that the assesses remitted the entire profits of the account year 1942-43 in the sum of Rs. 32,00 ? Is there any evidence to support the finding of the Appellate Tribunal that the sale proceeds of Rs. 32,000 received in British India includes entire profits earned or accrued in the Jubbal State in the account year 1942-43 ? The High Court issued a rule to the respondent to show cause why the application should number be granted. By its order dated the 25th June, 1953, the High Court dismissed the application with companyts. Leave to appeal having been refused, the appellant obtained special leave to appeal from this Court. Learned companynsel appearing in support of the appeal has urged that the decision of the Tribunal had been arrived at as a result of its overlooking the fact that at the dates when the two sums were received in British India numberprofit had been made at all. The timber had been sold in the accounting year 1942-43, but numberpayment had been received during that year. In 1943-44 a total sum of Rs. 1,57,000 had been received but that sum was much below the total outlay. It is companytended that profit is the excess receipt over the aggregate amount spent in the business and therefore numberprofit can be said to have been received unless and until the entire outlay is recouped. At the date of the receipt of the two sums in British India the entire outlay had number been recovered and, therefore, numberprofit had been received by the appellant and companysequently numberprofit companyld be remitted to British India. We are unable to accept this argument. There can be numbergetting away from the fact that profit accrues or arises on the sale, which in this case took place in 1942-43. Whatever profit there was, it certainly accrued or arose in that year. The profit on the sale of timber in 1942-43 has since been ascertained at Rs. 18,758. This finding is final and the appellant cannot go behind it. There being this profit, as eventually ascertained, the presumption, according to the cases referred to in the judgment under appeal, will be that the remittances of money from foreign business to British India must be of profits, unless the companytrary were shown by the appellant. Learned companynsel for the appellant does number seriously dispute the companyrectness of the decisions referred to in the judgment under appeal but raises two questions. In the first place, he companytends that, at the date of the receipt of the amounts in British India, the entire outlay had number been recouped and the profit had number been recovered and, therefore, the presumption cannot arise. He relies on the decision in Commissioner of Income-tax, Burma v. Bhagwandas Bagla in support of this companytention. There is numberforce in this companytention, because it may well be that the appellant knew that his party was solvent and sound and in anticipation of the realization of the entire amount, the appellant remitted the entire profit, which he calculated would eventually companye in, to British India. Indeed the events, as they transpired, fully support such view. The appellant cannot question that there was, in fact, profit which was less that the amount remitted. It was open to him to adduce evidence to show that he was winding up his business and reducing the establishment or was number in need of so much monies to be invested as capital in his business and, therefore, was remitting his capital which became unnecessary for the Jubbal business. This he failed to do. In the circumstances the appellant did number discharge the on us that was on him and the Income- tax Appellate Tribunal was quite companyrect in companying to the companyclusion that the sum of Rs. 32,000 included the profits made on the sale of timber for Rs. 1,91,000 in the accounting year 1942-43. The facts of the case relied on by the learned companynsel were quite different. There the assesses had sent timber to a foreign companyntry for sale and his agent realized the sale proceeds and remitted the same to the assesses. Those sale proceeds were obviously return for the goods sent out for sale and, therefore, as pointed out by Roberts, C.J., at page 50 the amounts remitted by the agent were the initial outlay and numberquestion of profit companyld arise until the entire outlay was recovered. Therefore, that decision can have numberapplication to this case. Learned companynsel then companytends that there was numberremittance by the appellant from Jubbal to British India. It may be recalled that the sum of Rs. 3000 was paid by the purchaser to a creditor of the appellant. This circumstances itself clearly indicates that the purchaser must have been directed by the appellant to pay the amount to the creditor in British India. What did this amount d ? Instead of reviving the money from the purchaser in Jubbal and remitting the money in his turn to his office in British India, the appellant directed his purchaser, who was indebted to him, to pay the amount direct to the appellants creditor in British India. For this purpose the purchaser was numberhing but the appellants agent. Therefore, the tribunal was quite companyrect in saying that, in the circumstances, the payment was undoubtedly a companystructive remittance of money by the appellant from Jubbal to his British India office. Similar companysiderations apply to the payment of Rs. 29,000 by the purchaser to the assessee himself in British India. The purchaser bought the timber in Jubbal and floated them down to its place of business at Abdullapore in the district of Ambala. The price was payable in Jubbal. In fact it made the bulk of the payment, namely Rs. 1,25,000 in Jubbal and ordinarily, left to itself, the purchaser would have also paid Rs. 29,000 at Jubbal. Why then, did the purchaser pay the amount to the accesses in appellant. An affidavit affirmed by Sukh Dial, a member of the purchaser firm, was filed and it is significant that he does number state in his affidavit that his firm, made the two payments in British India at its own violation and without been asked to do so by the appellant. In view of the surrounding circumstances the appellate tribunal and the income tax authorities were, of the opinion, fully justified in companycluding that the purchaser made the two payments in British India under the instructions of the appellant and that certainly amounts to a companystructive remittance of those amounts by the appellant himself from Jubbal to British India. This companyclusion naturally attracts the application of the decisions which clearly establish that remittance of money in such circumstances from foreign companyntry to British India must be presumed to be profits. There is numberevidence adduced by the appellant to rebut this presumption. It was next companytended that the whole of the profit of Rs. 18,758 can number be regarded as having been brought into or received in British India, but that a proportionate part of the total profit attributable to Rs. 32,000 should be regarded as having been included in that sum. Reliance was placed on the decision of this Court in Turner Morrison Co. Ltd. v. Commissioner of Income-tax, West Bengal. That decision has really numberapplication to the facts of the present case. As already stated the two amounts were paid in British India at the direction of the appellant, which means the same thing as if the payment had been by the purchaser and received by the appellant from his purchaser in Jubbal and then remitted by the appellant through the purchaser as his agent to himself and his creditor in British India. In such a situation the presumption is that the profit was included in the remittances and the decision referred to above can have numberapplication. On a companysideration of the facts and circumstances of this case, numberreal or substantial question of law arises from the order of the Appellate Tribunal and the High Court was justified in dismissing the appellants application under section 66 2 of the India Income-tax Act, 1922.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 103 105 of 1956. Appeal from the judgment and order dated January 24, 1955, of the Bombay High Court in Special Civil Application No. 2546 of 1954. A. Palkiwala and J. B. Dadachanji, S. N. Andley and Rameshwvar Nath, for appellants in Civil Appeal No. 103 of 1956 C. Setalvad, Attorney General for India, C. K. Daphtary, Solicitor General for India, Porus A. Mehta and H. Dhebar, for respondents. M. Bose, Advocate-General of West of Bengal,N. A. Palkiwala, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant in Civil Appeal No. 105 of 1956. Rajini Patel, M. V. Jayakar and I. N. Shroff, for respondent No. 1. Porus A. Mehta and R. H. Dhebar, for respondents Nos. 4 5. 1956. November 27. The Judgment of the Court was delivered by K. DAS J.-These two appeals, brought on certificates granted by the High Court of Bombay, raise companymon questions of law and for that reason, have been heard together. This judgment will govern them both. CIVIL APPEAL No. 105 OF 1956. In Civil Appeal No. 105 of 1956 the main appellant is the Barsi Light Railway Company Limited, Kurduwadi, within the State of Bombay hereinafter called the Railway Company . The principal respondent is the President of the Barsi Light Railwaymens Union, respondent No. I to the appeal. The General Manager, Central Railway, Bombay, and the Secretary, Railway Board, New Delhi, are respondents Nos. 4 and 5. The facts, so far as they are relevant for our purpose, are these. Under an agreement dated August 1, 1895, between the Secretary of State for India in Council and the Railway Company, the latter companystructed, maintained and worked a light railway between Barsi Town and Barsi Road Station on the railway system, known then as the Great Indian Peninsular Railway. It is number necessary to state here the various clauses of the aforesaid indenture of agreement except to mention that it companytained a clause under which the Secretary of State companyld purchase and take over the undertaking after giving the Railway Company number less than twelve calendar months numberice in writing of the intention so to do. On December 19, 1952, a numberice was given to the Railway Company, for and on behalf of the President of India, by the Director of the Railway Board to the effect that the undertaking of the Railway Company would be purchased and taken over as from January 1, 1954. The numberice stated inter alia The President of India hereby gives this numberice to the Company of the determination of the-original companytract of the 1st day of August, 1895, and the companytract of the 26th day of August, 1902, between the Secretary of State in Council and the Barsi Light Railway Company Ltd., and of all the companytracts supplemental thereto, at the expiration of 12 calendar months next after the current month and the companytracts shall terminate accordingly on the expiration of 12 calendar months next after the current month and the President of India will on the 1st day of January, 1954, purchase and take over the entire railway system of the Company including all the extension and,all the railways together with all its rolling stock, machinery, equipments buildings and property etc., and together with all other things, stores and fixtures etc., as specified and in the manner provided in clause 43 of the Indenture of the 1st August, 1895, and in clause 63 of the Indenture of the 26th August, 1902. On November 11, 1953, the Railway Company served a numberice on its workmen intimating that as a result of the Government of Indias decision to terminate the companytract of the Railway Company and take over the railway from January 1, 1954, the services of all the workmen of the Railway Company would be terminated with effect from the afternoon of December 31, 1953. The numberice further stated that the Government of India intended to employ such of the staff of the Company as would be willing to serve on the railway on terms and companyditions which were to be numberified later. On December 15, 1953, the Railway Board intimated the terms and companyditions on which the staff of the Railway Company would be taken over and employed by Government. The letter by which the terms and companyditions were companymunicated enclosed three forms- one for clerical and like categories, a second for categories of staff needing training or refresher companyrse, and a third for workshop staff and other tradesmen requiring trade-testing. In substance, the new terms and companyditions as embodied in the letter and the three forms stated that the service of the staff employed by Government would be treated as companytinuous for certain specific purposes only, such as, companytribution to provident fund, leave, passes and privilege ticket orders, educational and medical facilities etc. It was made clear, however, that the Government Railway rules applicable to other staff appointed on the same day would be applicable to the staff of the Railway Company, and previous service under the Railway Company would number companynt for the purpose of seniority. It appears from the statement of respondents 4 and 5 that when the undertaking was actually taken over on January 1, 1954, about 77 per cent. of the staff of the Railway Company were re-employed on the same scales of pay, about 23 per cent. were re-employed on somewhat lower scales of pay though the pay which they actually drew at the time of re-employment was number affected only about 24 of the former employees of the Railway Company declined service under the Government. Soon after, respondent No. I filed some sixty-one applications on behalf of the erstwhile workmen of the Railway Company under s. 15 of the Payment of Wages Act, 1936, for payment of retrenchment companypensation to the said workmen under cl. b of a. 25F of the Industrial Disputes Act, 1947 hereinafter called the Act . The applications were made to respondent No. 3, Civil Judge Junior Division Madha, who was the relevant authority under the Payment of Wages Act, 1936. These applications were companytested by -the present appellants and several issues were framed. Three of the issues were- 1 whether the authority under the Payment of Wages Act, 1936, had jurisdiction to deal with and adjudicate on the claim of retrenchment companypensation 2 whether the erstwhile workmen were entitled to claim companypensation under clause b of a. 25F of the Act and 3 whether they had been retrenched by their former employer, the present appellants, on December 31, 1953, within the meaning of the expression retrenchment in the Act. The Civil Judge of Madha found against the workmen on issue No. I but in their favour on the other two issues. By companysent of parties, the aforesaid findings given on one of the applications Miscellaneous Application No. 27 of 1954 governed the other applications also, and the applications were dismissed as a result of the finding on the question of jurisdiction. Respondent No. I then moved the High Court of Bombay in Civil Application No. 2546 of 1954 and prayed for writs or appropriate directions under the provisions of Arts. 226 and 227 of the Constitution, for quashing the order of dismissal passed by respondent No. 3, the Civil Judge of Madha, and directing the latter to dispose of the applications before him on merits. In the High Court the question of jurisdiction of the authority under the Payment of Wages Act, 1936, was number argued, because learned companynsel for the Railway Company rightly pointed out that assuming that the said authority had jurisdiction to deal with the claim of the workmen, the companytroversy between the parties would number companye to an end by a decision on the question of jurisdiction only because the Railway Company still companytended that the workmen had number been retrenched within the meaning of the Act and were number entitled to claim companypensation under al. b of s. 25F. Thereupon, both parties agreed in the High Court that Civil Application No. 2546 of 1954 should number be restricted to the question of jurisdiction but should be decided on merits that is, on the validity or otherwise of the claim of the erstwhile workmen to companypensation under cl. b of s. 25F on the termination of their services by the Railway Company on December 31, 1953. Learned companynsel for the Railway Company agreed and undertook on behalf of his client to accept whatever finding was given by the High Court on merits, subject to an appeal to this Court. The High Court Chagla C. J. and Dixit J. held by its judgment and order dated January 24, 1955, that the workmen were entitled to claim companypensation under clause b of s. 25F of the Act and the Railway Company was liable to pay such companypensation to them. It is from that decision that Civil Appeal No. 105 of 1956 has been brought. CIVIL APPEAL No. 103 OF 1956. The facts in this appeal are somewhat different. The main appellant is Shri Dinesh Mills Ltd., Baroda, and the principal respondent is the District Labour Officer and Inspector under the Payment of Wages Act, 1936, at Baroda. The appellant Company was running a woollen mill at Baroda for several years and had in its employ at the relevant time 450 workmen and 20 clerks. The work was done in shifts, day and night. On or about October 31, 1953, the appellant put up a numberice declaring its intention to close down the entire mills from December 1, 1953. On November 19,1953, this numberice was withdrawn and another numberice was put up declaring the intention of the appellant to close down the second shift with effect from December 20, 1953. A third numberice was put up saying that the second shift would be closed on December 20, 1953, as numberified earlier, and the first shift would be closed as from January 8, 1954. A similar numberice was put up on the same date terminating the services of the clerks with effect from January 19,1954. It was number disput- ed that though the steps in the process of closure of the business of the appellant Company were staggered,. the process was really one, and as a result of the closure the services of all 450 workmen and 20 clerks were terminated. The appellant Company claimed that the closure of its business was bona fide, being due to heavy losses sustained by the Company. On April 27, 1954, the principal respondent made an application to the relevant authority respondent No. 3 under the Payment of Wages Act, 1936, claiming retrenchment companypensation for the workmen of the appellant under el. b of s. 25F of the Act. The application was companytested by the appellant Company, and here again the same questions of jurisdiction of the authority under the Payment of Wages Act, 1936, to deal with the claim and the maintainability of the claim under el. b of is. 25F of the Act arose for decision. The authority under the Payment of Wages Act decided against the erstwhile workmen on all the important issues. The respondent then moved the High Court of Bombay for appropriate writs or directions, and the High companyrt Bavdekar and Shah JJ. held that the authority under the Payment of Wages Act, 1936, bad jurisdiction to deal with the claim of retrenchment companypensation on the merits of the claim, the learned Judges felt bound to accept the decision of the Bench Chagla C. J. and Dixit J. in the case of the Railway Company. Accordingly, the order of respondent No. 3 was set aside and he was directed to dispose of the application before him in accordance with law. Civil Appeal No. 103 of 1956 is from the aforesaid decision of the High Court dated July 25, 1955. It should be apparent from the facts stated above, though they are a little different with regard to the two appeals before us, that a companymon question of law emerges therefrom, namely, whether the claim of the erstwhile workmen-both of the Railway Company and of Shri Dinesh Mills Limited--to companypensation under cl. b of s. 25F of the Act is a valid claim in law. The second question, that of jurisdiction of the authority under the Payment of Wages Act, 1936, is number a live question in Civil Appeal No. 105 of 1956 after the agreement of parties in the High Court. It does arise, however, in Civil Appeal No. 103 of 1956. But learned companynsel for the appellants in that appeal has been ingenuous enough to state that he does number wish to take our time by addressing us on that question-not because he companysiders that the question of jurisdiction is devoid of all merit, but by reason of the fact that under the provisions of s. 25 1 of the Act the claim for retrenchment companypensation, if found to be legally valid, can still be enforced against the appellants. Section 19 of the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956, purports to repeal s. 25 I of the principal Act, but that section has number yet been brought into force with the result that the provisions of s. 25 I are still available for the recovery of retrenchment companypensation. Learned companynsel has, therefore, submitted before us that these appellants will be companytent to abide by our decision on the principal question in these two appeals, namely, the validity or otherwise of the claim for retrenchment companypensation under cl. b of s. 25F of the Act. The Act which has been in force since April 1, 1947, has bad a plexus of amendments, and some of the recent amendments have been quite extensive in nature. Section 25F occurs in Ch. VA of the Act that chapter dealing with lay off and retrenchment was inserted by an amending Act Act XLIII of 1953 in 1953. Section 25F is in these terms No workman employed in any industry who has been in companytinuous service for number less than one year under an employer shall be retrenched by that employer until- a the workman has been given one months numberice in writing indicating the reasons for retrenchment and the period of numberice has expired, or the workman has been paid in lieu of such numberice, wages for the period of the numberice Provided that numbersuch numberice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service b the workman has been paid, at the time of retrenchment, companypensation which shall be equivalent to fifteen days average pay for every companypleted year of service or any part thereof in excess of six months and c numberice in the prescribed manner is served on the appropriate Government. In the first part of the provisions of the section, the word used is retrenched and in cls. a and b the word used is retrenchment. Obviously, they have the same meaning, the only difference being that in the first part the word used is a verb and in the clauses the word is used as a numbern. It is obvious that to appreciate the true scope and effect of s. 25F, we must first understand what is meant by the expression retrenched or retrenchment. By the same amending Act of 1953 a new definition was added to the definitions in s. 2, being a definition of the word retrenchment in el. oo of s. 2. The definition is in these terms Section 2 oo - retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does number include- a voluntary retirement of the workman or b retirement of the workman on reaching the age of superannuation if the companytract of employment between the employer and the workman companycerned companytains astipulation in that behalf or c termination of the service of a workman on the groundof companytinued ill-health. Leaving out the excluding sub-cls. a , b and c for the time being-these sub-clauses number being directly applicable to the cases under our -consideration-the definition when analysed companysists of the following four essential requirements- a termination of the service of a workman b by the employer c for any reason whatsoever and d otherwise than as a punishment inflicted by way of disciplinary action. It must be companyceded that the definition is in very wide terms. The question, however, before us is-does this definition merely give effect to the ordinary, accepted numberion of retrenchment in an existing or running industry by embodying the numberion in apt and readily intelligible words or does it go so far beyond the accepted numberion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the employer 9 Learned companynsel for the appellants companytend that the first gives the companyrect meaning of the definition, while learned companynsel for the principal respondents urge that by reason of the wide words used in the definition, the second gives the companyrect meaning of the expression retrenchment. There is numberdoubt that when the Act itself provides a dictionary for the words used, we must look into that dictionary first for an interpretation of the words used in the statute. We are number companycerned with any presumed intention of the legislature our task is to get at the intention as expressed in the statute. Therefore, we propose first to examine the language of the definition and see if the ordinary, accepted numberion of retrenchment fits in, squarely and fairly, with the language used. What is the ordinary, accepted numberion of retrenchment in an industry ? We have had occasion to companysider this question in Pipraich Sugar Mills Ltd.v. Pipraich Sugar Mills Mazdoor Union 1 where we observedBut retrenchment companynotes in its ordinary acceptation that the business itself is being companytinued but that a portion of the staff or the labour force is discharged as plusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is true that these observations were made in companynection with a case where the retrenchment took place in 1951, and we specially left open the question of the companyrect interpretation of the definition of retrenchment in s. 2 oo of the Act. But the observations do explain the meaning of retrenchment in its ordinary acceptation. Let us number see how far that meaning fits in with the language used. We have referred earlier to the four essential requirements of the definition, and the question is, does the ordinary meaning of retrenchment fulfil those requirements ? In our opinion, it does. When a portion of the staff or labour force is discharged as surplusage in a companytinuing, business, there are a termination of the service of a workman b by the employer c for any reason whatsoever and d otherwise than as a punishment 1 1956 S.C.R. 872, inflicted by way of disciplinary action. It has been argued that by excluding bona fide closure of business as one of the reasons for termination of the service of workmen by the employer, we are cutting down the amplitude of the expression for any reason whatsoever and reading into the definition words which do number occur there. We agree that the adoption of the ordinary meaning gives to the expression for any reason whatsoever a somewhat narrower scope one may say that it gets a companyor from the companytext in which the expression occurs but we do number agree that it amounts to importing new words in the definition. What after all is the meaning of the expression for any reason whatsoever? When a portion of the staff or labour force is discharged as surplusage in a running or companytinuing business, the termination of service which follows may be due to a variety of reasons e.g., for economy, rationalization in industry, installation of a new laborsaving machinery etc. The legislature in using the expression for any reason whatsoever says in effect It does number matter why you are discharging the surplus if the other requirements of the definition are fulfilled, then it is retrenchment. In the absence of any companypelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expres- sion altogether from its companytext to give it such a wide meaning as is companytended for by learned companynsel for the respondents. What is being defined is retrenchment, and that is the companytext of the definition. It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition but there must then be companypelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined. There is another way of looking at the problem. Let us assume. that the definition clause is so worded that the requirements laid down therein are fulfilled, whether we give a restricted or a wider meaning to that extent there is an ambiguity and the definition clause is readily capable of more than one interpretation. What then is the position ? We must then see what light is thrown on the true view to be taken of the definition clause by other provisions of the Act or even by the aim and provisions of subsequent statutes amending the Act or dealing with the same subject-matter. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union 1 it was observed It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, and then proceeds onto provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock-out, strike, lay-off, retrenchment, companyciliation and adjudication proceedings, the period during which the awards are to be in force, have meaning only if they refer to an industry which is running and number one which is closed. In Burn Co., Calcutta v. Their Employees 2 this Court observed that the object of all labour legislation was firstly, to ensure fair terms to the workmen, and secondly, to prevent disputes between employers and employees so that production might number be adversely affected and the larger interests of the public might number suffer. It was then observed in The Pipraich Sugar Mills case 1 supra , Both these objects again can have their fulfillment only in an existing and number a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras 3 and K. M. Padmanabha Ayyar v. The State of Madras 4 , that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly companyrect. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. M. Padmanabha Ayyar The State of Madras 4 , fall outside the 1 1956 S.C.R. 872. 2 1956 S.C.R. 781. A.I.R. 1953 Madras 98. 4 1954 1 L.L.J. 469. purview of the Industrial Disputes Act. In view of these observations, it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist. Learned companynsel for the appellants in the two appeals have pointed out that the definition clause is inartistically drawn up and sub-cls. a and b of s. 2 oo are number easily intelligible with reference to one of the essential requirements of the definition, namely, that the termination of service of the workman must be by the employer. It has been submitted that voluntary retirement of the workmen cannot be termination of service by the employer. We do number, however, think that sub-cls. a , b and c are companyclusive of the question before us they, numberdoubt, apply to a running or companytinuing business only, but whether inserted by way of abundant caution or on account of excessive anxiety for clarity, they merely exclude certain categories of termination of service from the ambit of the definition. They do number necessarily show what is to be included within the definition. Two other companynate sections to which our attention has been drawn are ss. 25G and 25H. They are applicable, clearly enough, to a running business only. The learned Attorney- General, who has appeared for the principal respondent in one of the appeals, has pointed out that if the definition clause companyers the case of termination of service in a companytinuing business as also termination of service on a closure of business, the circumstance that ss. 25G and 25H provide for some instances of retrenchment only is numberground for holding that they exhaust all possible cases of retrenchment or that s. 25F must also be restricted to a running business only. We agree that if it is companyceded that the definition clause includes cases of closure of business, numberdifficulty is presented by ss. 25G and 25H. But the fundamental question at issue is, does the definition clause companyer cases of closure of business, when the closure is real and bona fide? The point to be emphasised in that companynection is that there is numberprovision except perhaps s. 25FF inserted in 1956 by Act XLI of 1956 to which we shall presently refer which can be said to bring a closed or dead industry within the purview of the Act. The provisions of the Act, almost in their entirety, deal with an existing or companytinuing industry. All the provisions relating to lay off in ss. 25A to 25E are also inappropriate in a dead business. Learned companynsel for the appellants have also adverted to some surprising results which would follow the wider interpretation of the definition clause. If an employer dies and his heirs carry on the business or there is companypulsory winding up of a companypany and the companypany is reconstructed or a business is companyverted into a limited companypany, or a new partner is taken into the business, there is in law a termination of service by a particular employer and a new employer appears on the scene will the workmen in such circumstances be entitled to retrenchment companypensation though they companytinue in service as before ? There must indeed be found very companypelling reasons in the words of the statute before it can be held that such was the intention of the legislature. We think that numbersuch companypelling reasons are available from the provisions of the Act on the companytrary, they point really one way-that the Act companytemplates an existing or companytinuing industry and number a dead industry. This brings us to two other arguments advanced by the learned Attorney-General. One is that before the enactment of the amending Act of 1953 Act XLIII of 1953 retrenchment had acquired a special meaning meaning which included the payment of companypensation on a closure of business, and the legislature gave effect to that meaning in the definition clause and by inserting s. 25F. The second argument is that s. 25FF inserted in 1956 Act XLI of 1956 is parliamentary exposition of the meaning of the definition clause and of s. 25F. We shall number companysider these two arguments. As to the first argument, a large number of decisions of Industrial or Lpobour Appellate Tribunals have been placed before us. The learned Attorney-General has relied particularly on three decisions The Hyderabad Vegetable Oil Products Ltd. v. Their Workers 1 Employees Of Messrs. India Reconstruction Corporation Ltd., Calcutta Messrs. India Reconstruction Corporation Ltd., Calcutta Kandan Textiles Ltd. v. Their Workers 3 . The decision in Employees of Messrs. India Reconstruction Corporation Ltd., Calcutta v. Messrs. India Reconstruction Corporation Ltd., Calcutta 2 Was companysidered by us in Pipraich Sugar Mills Lid. v. Pipraich Sugar Mills Mazdoor Union 4 where we said that we were unable to accept the observation of the Tribunal that, in substance the difference between closure and numbermal retrenchment was one of degree only. We are aware that in some cases Labour Appellate Tribunals awarded retrenchment companypensation on closure of business, even when the closure was bona fide or justified. We expressed our dissent from those decisions in the Pipraich Sugar Mills case 4 . When closely examined, numbere of those decisions show, however, that discharge of workmen on bona fide closure of business was held to fall within the meaning of numbermal retrenchment. In The Hyderabad Vegetable Oil Products Ltd. v Their Workers 1 the grounds on which companypensation was allowed were 1 involuntary or forced unemployment of the workmen, 2 absence of any social security scheme like unemployment insurance and 3 financial position of the companypany. On similar grounds companypensation was awarded in Kandan Textiles Ltd. v. Their Workers 3 as an equitable relief, and a variety of factors were referred to as determining the appropriate relief to be given in a particular case. We companysider it unnecessary to examine all the decisions on this point, and it is enough to indicate what we companysider to be the companyrect position in the matter. Retrenchment means discharge of surplus workmen in an existing or companytinuing business it had acquired numberspecial meaning so as to include discharge of workmen on bona fide closure of business though a number of Labour Appellate Tribunals awarded companypensation to 1 1950 2 L.L.J. 1281. 3 1954 2 249. 2 1953 L.A.C 563. 4 1956 S 872, workmen on closure of business as an equitable relief for a variety of reasons. It is reasonable to assume that in enacting s. 25F, the legislature standardised the payment of companypensation to workmen retrenched in the, numbermal or ordinary sense in an existing or Continuing industry the legislature did away with the perplexing variety of factors for determining the appropriate relief in such cases and adopted a simple yard stick of the length of service of the retrenched workmen. If the intention of the legislature was to give statutory effect to those decisions which awarded companypensation on real and bona fide closure of business, the legislature would have said so instead of being companytent by merely adding a definition clause, every requirement of which is fulfilled by the ordinary, accepted meaning of the word retrenchment. We turn number to the second argument. We have said that s. 25FF was inserted in 1956 by amending Act XLI of 1956, which came into force on September 4,1956. Before that date, the two decisions under appeal had been given by the Bombay High Court as also a further decision in The Hospital Mazdoor Sabha v. The State of Bombay 1 where it was held that the failure to companyply with the companydition for payment of companypensation to an employee at the time of his retrenchment under s. 25F b of the Act gave the employee the right to challenge his retrenchment and to companytend that his services were number legally and effectively terminated. Faced with the situation created by those decisions, the legislature stepped in and enacted s. 25FF. That section is in these terms Notwithstanding anything companytained in section 25F, numberworkman shall be entitled to companypensation under that section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred whether by agreement or by operation of law, from one em- ployer to another Provided that 1 1956 58 Bom. L.R. 769. a the service of the workman has number been interrupted by reason of the transfer b the terms and companyditions of service applicable to the workman after such transfer are number in any way less favourable to the workman than those applicable to him immediately before the transfer and c the employer to whom the ownership or management of the undertaking is so transferred is, under the terms of the transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, companypensation on the basis that his service has been companytinuous and has number been inter- rupted by the transfer. The section is number retrospective and does number in terms apply to any of the two cases before us. -But the question is-what light does it throw on the meaning of s. 25F? The learned Attorney-General has placed great reliance on the number- obstante clause with which the section begins, and has companytended that it shows by necessary intendment that a workman whose service has been terminated by reason of a change of employers on account of a change of ownership or management will be entitled to retrenchment companypensation under s. 25F unless the companyditions a , b and c laid down in s. 25FF are fulfilled. This, according to the learned Attorney-General, is parliamentary exposition of the true meaning of retrenchment in the definition clause and in s. 25F. At first sight there appears to be companysiderable force in this argument, and the learned Attorney-General, has cited English and American decisions of high authority in support of his companytention Attorney General v. Clarkson Ormond Investment Co. Ltd. v. Betts 2 George H. Cope v. Janet companye 3 Great Northern Railway Co. v. United States of America 4 . In companysidering the effect of s. 25FF we must take numbere of the circumstances in which it was inserted in the Act. The situation was that any transfer or closure of business and any change of 1 1900 1 Q.B. 156. 2 1928 A.C. 143. 3 1891 137 U.S. 682, 688. 4 1941 315 U.S. 262, employer or management was judicially held to give rise to a claim for retrenchment companypensation, with companysequences which might result in a companyplete industrial deadlock. The legislature companyld number declare the decisions to be incorrect, but companyld partially supersede their effect by an amendment of the law. These were the circumstances in which s. 25FF was enacted. We agree with learned companynsel for the appellants that the aim or object of the enactment was to supersede partially the effect of the aforesaid judicial decisions, at least with regard to the urgent matter of change of ownership or management of a business undertaking which is of quite frequent occurrence, rather than parliamentary exposition of the pre-existing law the general question of closure of business, of a lesser degree of urgency, was naturally left to be dealt with, if necessary, after the appeals had been disposed of. We are fortified in this view by an examination of the provisions of the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956. Be it numbered that this Act was passed on August 28, 1956,-only about seven days before the enactment of s. 25FF. Section 29 of the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956, inserts new schedules to the Act, and item 10 of the Third Schedule Matters within the jurisdiction of Industrial Tribunals is Retrenchment of workmen and closure of establishment in the Fourth Schedule, item 10 is Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen. It is true that these new Schedules have number yet companye into force, but the wording of the items mentioned therein shows that the legislature clearly envisaged a distinction between retrenchment and closure and retrenchment did number include closure of business item 10 of the Fourth Schedule almost clinches the issue, because it shows how retrenchment of surplus labour may occur in a running industry. If we are to choose between the two amending Acts of 1956 on the point of parliamentary exposition, we unhesitatingly hold that the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956 Act XXXVI of 1956 is more in the nature of parliamentary exposition than the Industrial Disputes Amendment Act, 1956 Act XLI of 1956 which merely supersedes the effect of certain judicial decisions. We are aware that on the narrower interpretation of the definition clause on the basis of the ordinary, accepted companynotation of retrenchment,, s. 25F will apply to a companytinuing or running business only and s. 25FF will become largely unnecessary. We do number think that companysideration need cause any difficulty the judicial decisions on the basis of which s. 25FF was enacted being held to be erroneous by us, numberhardship is caused if s. 25FF is rendered superfluous, because its aim is served by the companyrect interpretation number given of the definition clause and of the provisions of s. 25F, both of which are on that interpretation brought into harmony with the rest of the Act. A few words more about the authorities relied on by the learned Attorney-General the American decisions merely enunciate the general principle that several Acts of Congress, dealing as they do with the same subject-matter, should be companystrued number only as expressing the intention of Congress at the dates the several Acts were passed, but the later Acts should also be regarded as legislative interpretations of the prior ones. This general rule is number an inflexible rule, and as stated in the Great Northern Railway Co. v. United States of America 1 , we are number limited to the lifeless words of the statute and formalistic canons of companystruction in our search of the intent of Congress Parliament in our case and in companystruing a statute, we may with propriety. recur to the history of the times when it was passed. That history shows indubitably the aim and purpose of the enactment of s. 25FF. As Lord Atkinson pointed out in his speech in Ormond Investment Co. Limited v. Betts 2 , an Act of Parliament does number alter the law by merely betraying an erroneous opinion of it. Legislation founded on a mistaken or erroneous assumption has number the effect of making that the law which the legislature had erroneously assumed to be so. In the cases before us, 1 1942 315 U.S. 262, 273. 2 1928 A.C. 143, 164. the legislature proceeded on the basis of the judicial decisions then available to it, and on that basis enacted s.25FF. We do number think that the general principle of parliamentary exposition or subsequent legislation as an aid to companystruction of prior Acts can be called in aid for companystruing the definition clause and s. 25F of the Act. For the reasons given above, we hold, companytrary to the view expressed by the Bombay High Court, that retrenchment as defined in s. 2 oo and as used in s. 25F has numberwider meaning than the ordinary, accepted companynotation of the word it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and. it has numberapplication where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company. Mr. Mehta, appearing for respondents Nos. 4 and 5 in Civil Appeal No. 105 of 1956, tried to make a distinction between transfer of ownership with companytinuation of employment which according to him did number companye within the definition and termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business but so far as the definition clause is companycerned, both stand on the same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in numbercase is there any retrenchment, unless there is discharge, of surplus labour or staff in a companytinuing or running industry. We have so far dealt with the question of companystruction of the definition clause and s. 25F of the Act. On behalf of the appellants a further question as to tile companystitutional validity of s. 25F has been raised. The Argument on that question has proceeded from two points of view one of which is based on the point of view that retrenchment includes termination of service on closure of business and the other even in respect of a running or companytinuing business. Under Art. 19 1 , sub-cls. f and g , of the Constitution, all citizens have the right to acquire, hold and dispose of property and to practise any profession, or to carry on any occupation, trade or business. Under cls. 5 and 6 of the said Article, the right is, inter alia, subject to reasonable restrictions in the interests of the general public. The right to carry on a business, it is companytended, has three facets- a the right to start a business, b the right to companytinue a business and c the right to close a business. Section 25F of the Act, it is argued, imposes a restriction on that right, if the section is so widely interpreted as to include a closure of business. The restriction, it is submitted, is number a reasonable restriction in the interests of the general public, because a it is unrelated to the capacity of the employer to pay and b unrelated to the needs of the employee. From the other point of view, the argument is that even in respect of a running or companytinuing industry, s. 25F imposes an unreasonable restriction. Reasonableness,it is submitted, has to be companysidered with regard to the object of the legislation and if the direct and immediate object of s. 25F is relief against involuntary unemployment, then the restriction imposed is excessive, because a provision for such relief unrelated to the period of unemployment and other relevant factors is over-simplification of a companyplex problem. Such over-simplification, it is stated, itself amounts to an unreasonable restriction. On the companystruction which we have adopted of the definition clause and of s. 25F of the Act, we are relieved of the task of making any final pronouncement on this companystitutional question. On our companystruction, s. 25F has numberapplication to a closed or dead industry and the companystitutional arguments based on a different companystruction need number be companysidered in these appeals. So far as a running or companytinuing industry is companycerned, an obvious answer may be that unemployment relief is number the only purpose or object of s.25F. We have pointed out earlier that it is reasonable to assume that standardisation of retrenchment companypensation and doing away with a perplexing variety of factors for granting retrenchment companypensation may well have been the purposes of a. 25F, though the basic companysideration must have been the granting of unemployment relief. However, on our view of the companystruction of s. 25F, numbercompensation need be paid by the appellants in the two appeals. It is unnecessary therefore to decide whether, in other cases of a different character, s. 25F imposes a reasonable restriction or number. In the result, we must allow the two appeals and set aside the decisions of the High Court of Bombay in the two cases. We hold that the appellants in the two appeals are number liable to pay any companypensation under s. 25F of the Act to their erstwhile workmen who were number retrenched within the meaning of that expression in that section.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JUIRISDICTION Civil Appeal No. 35 of 1955. Appeal by special leave from the judgment and decree dated March 10, 1952, of the Calcutta High Court in appeal from the Original Order No. 100 of 1950 arising out of the decree dated July 18, 1950, of the Court of Subordinate Judge, Alipore, 2nd Court, in Miscellaneous Case No. 76 of 1949. K. Daphtary, Soliditor-General for India, N. C. Chatterji and Sukumar Ghose, fOr the appellant. Atul Chandra Gupta, S. C. Jana, N. C. Sen, Arun Kumar Dutta and R.R. Biswas, for respondent No. 1. 1956. November 19. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave against the judgment and decree of the High Court of Calcutta and arises out of an application filed by the appellant under s. 47 of the Code of Civil Procedure in the companyrse of execution proceedings in the Second Court of the Subordinate Judge at Alipore, District 24-Parganas. The facts leading thereto are as follows. One Ramani Kanta Roy was possessed of companysiderable properties. He had three sons, Rajes Kanta Roy, Rabindra Kanta Roy and Ramendra Kanta Roy. Rabindra died childless in the year 1938 leaving a widow, Santi Debi. ln 1934 Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed his three sons as shebaits. After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function as a shebait in the place of her husband. The suit terminated in a companypromise recognizing the right of Salnti Debi as a companyhebait. Shortly thereafter, however, i.e., in the year 1944, Ramani and his two sons, Rajes and Ramendra, filed a suit against Santi Debi. for a declaration that the above mentioned companypromise decree was null and void. One of the grounds on which the suit was based was that the marriage of Santi Debi with Rabindra was a nullity inasmuch as the said marriage was one between persons within prohibited degrees. During the pendency of that suit Ramani, the father, executed a registered trust deed in respect of his entire properties on July 26, 1945. The terms of that trust-deed will be referred to presently. The eldest of the sons, Rajes, was appointed thereunder as the sole trustee to hold the properties under trust subject to certain powers and obligations. After the execution of this trust deed the father died, The exact date of his death does number appear on the record. Some time thereafter the suit was companypromised on December 3, 1946. The material terms of this companypromise will be set out presently. By the said companypromise Santi Debi gave up her rights under the previous companypromise decree of 1941 and agreed to receive for her natural life a monthly allowance of Rs. 475 payable from the month of November, 1946. It was one of the terms of the companypromise that on default of payment Santi Debi will be entitled to realise the same by means of execution of the decree. It appears that the monthly allowance as aforesaid was regularly paid up to the end of February, 1948, and that thereafter payment was defaulted. Consequently Santi Debi filed an application for execution on July 8, 1949, to realise the arrears of her monthly allowance from March, 1948, to July, 1949, amounting to Rs. 8,075 against both the brothers, Rajes and Ramendra. Execution was asked for by way of attachment and sale of immovable properties,viz., premises No. 44/2, Lansdowne Road, Ballygunge P.S., 24- Parganas. Rajes filecl an objection to the execution under s. 47 of the Code of Civil Procedure on various grounds. Ramendra has number filed, or joined in, any such application and has apparently number companytested the execution. The present companytest in both the companyrts below and here is only between Rajes and Santi Debi. An order was passed by the Subordinate Judge over-ruling the objections raised by Rajes. An appeal was taken therefrom to the High Court at Calcutta which was dismissed by its judgment under appeal. Hence the present appeal in which Rajes is the appellant, while Santi Debi is the first respondent and Ramendra is the second respondent. The two main objections to the execution proceedings which have been urged before us are that- 1 Under the companypromise decree which is number sought to be put in execution, charge was created over certain properties for the due payment of the monthly allowance and hence as a matter of companystruction of the decree, the personal remedy can be pursued only after the remedy by way of charge is exhausted, Under the terms of the deed of trust Rajes has numberattachable interest in the properties sought to be proceeded against. The first of the above companytentions is raised with reference to the terms of the companypromise decree dated December 3, 1946, and is set out in para. 14 of the p 1 etition under s. 47 of the Code of Civil. Procedure as follows That under the companypromise decree in question the decree- holder has relinquished all her right, title and interest in respect of all the properties left by Ramani Kanta Roy deceased and she having agreed to realise her dues, if any, out of a particular property is number entitled to proceed against the properties sought to be attached simultaneously, keeping the said security alive. The material portion of the companypromise decree dated December 3, 1946, is as follows That the companypromise decree in Suit No. 92 of 1941 of the Honble High Court of Calcutta, Original Side, is declared to be inoperative and set aside and the defendant No. 1 would be debarred from claiming right or relief in the said decree. That the plaintiffs abovenamed agree to pay to defendant No. 1 for her natural life a monthly allowance of Rs. 475 and the said allowance is to be paid on and from the month of November, 1946. That the said monthly allowance of Rs. 475 is to be paid on or before the 10th day of each succeeding month and in case of failure to pay the said monthly allowance of four companysecutive months, the defendant No. 1 will be entitled to realise, the amount in default by means of execution of the decree to be passed in terms of this petition of companypromise. That the properties mentioned in the schedule below are hereby charged for the due payment of the said monthly allowance and the defendant No. 1 will be at liberty to realise the amount in default against the properties charged by execution of this decree. That the defendant No. 1 will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. That each of the terms stated above is a companysideration for the other terms. The charge above-mentioned is over property called Bharatkhali property companysisting of a number of items in Rangpur Collectorate number in East Pakistan. Before companysidering the objection raised under point No. 1, it is right to mention that a minor objection has been taken that, as a fact, there is numberexecutable decree which can form the subject-matter of execution. It is pointed out that cl. c of the companypromise petition is to the effect that defendant No. 1 the present respondent No. 1 will be entitled to realise the amount in default by means of execution of the decree to be passed in terms of this petition of companypromise but that there is numberformal decree carrying this out and directing that the plaintiffs therein, Rajes and Ramendra, do pay to the first defendant therein, Santi Debi, the sum of Rs. 475 per month. What appears to have happened is as follows. The petition for companypromise was filed on December 3, 1946, with the prayer that the terms of this petition of companypromise be recorded and that the title suit mentioned above as between the plaintiffs and defendant No. 1 be disposed of in terms of this petition of companypromise and the companypromise be made a part of the decree in the same. Thereupon on the same date the following formal order was passed. This suit companying on this day for final disposal it is ordered and decreed that the suit be and the same is hereby decreed on companypromise as against defendant No. 1. That the solenama do form part of this decree. It is true that a formal direction in terms of the various clauses of the companypromise petition directing the plaintiffs to pay the monthly allowance of Rs. 475 to the first defendant has number, in terms, been drawn up. But there can be numberdoubt that this was what was meant to be companyveyed by the above mentioned formal order in so far as it is relevant for the present purposes. We understand that the actual decree in this case merely showing that the solenama do form part of the decree is according to the usual practice of companyrts in Bengal in all such cases and that it is generally understood to amount to such a direction though it is number so expressly set out. We do number companysider it necessary to express opinion as to whether that is a companyrect practice. But we do number think that in this case the execution is to be defeated on this ground. There is numberindication in the judgment either of the Subordinate Judge or of the High Court that any such point has been raised before them. We accordingly overrule this objection. As regards the first of the main points raised with reference to the terms of the companypromise decree, it is number disputed that cl. c does impose a personal obligation on the plaintiffs therein to pay to the first defendant therein a monthly allowance of Rs. 475 and that, therefore, the decree-holder is entitled to a personal remedy. What is urged, however, is that taking cls. c and d together, the clear intention is that when any default occurs, the decree-holder has to look for payment first to the properties charged and that, it is only in the event of number being able to obtain satisfaction out of it, that the personal obligation can be enforced. A number of cases of the Bombay High Court have been cited before us in support of this argument and it is urged that where a particular fund is indicated for-the payment of a debt and is charged, the companyrts should number companystrue an extra clause for payment simpliciter as giving a companycurrent remedy but that in such cases the charged fund is primarily to be looked to. It is also urged that in such cases it is inequitable to a low the personal remedy to be pursued in the first instance, or, at any rate, unless the decree-holder gives up the charge. Our attention is also drawn to the fact that the execution petition itself under the companyumn Mode in which the assistance of the Court is required specifically states as follows Be it numbered that at present the execution is number proceeded against certain immovable properties in Eastern Pakistan which are under charge for the present amount on account of arrear maintenance and also future maintenance due under the decree without prejudice to her rights under the said decree. Decreeholder reserves to herself all rights and reliefs as are number enforceable in Dominion of India in respect of the decree. It is pointed out that the decree-holder in terms desires to pursue the personal remedy while reserving the remedy under the charge. In the present case we do number companysider it necessary to deal with these Bombay decisions cited before us or with the above companytention based thereon. For, it is number disputed that where a companypromise decree provides both for a personal remedy and a charge, the whole question depends on the intention to be gathered from the various terms in the companypromise decree. In our opinion, the companystruction of the two relevant clauses and the intention to be gathered therefrom in this case are quite clear. It is true that in one sense, cls. c , d and e of the company- promise indicate certain specified properties as being available to the decree-holder for realisation of any dues either by pursuing the charge or by getting a Receiver appointed in respect of the charged properties. But the wording of the three clauses shows clearly that she is number obliged to resort to these two remedies in the first instance. Clause e says that the defendant No. I will be entitled to realise the amount in default by means of execution of decree. Clause d says that the defendant No. I will be at liberty to realise the amount in default against the properties charged. Clause e says that the defendant No. I will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. It is quite clear that cl. c gives her an unqualified right to obtain payment of the monthly allowance from the plaintiffs. Clauses d and e give her a liberty or option to pursue the remedies specified therein. There is numberhing in these two clauses to limit, in any way, the unqualified right that she was given under cl. c . Our attention is drawn to the statement in cl. j which says that each of the terms stated is a companysideration for the other terms. What exactly is meant thereby is somewhat obscure. But we are unable to see how that clause affects the intention which, in our view, has to be gathered by reading cls. c , d and e together. We are, therefore, of the opinion that the companytention raised to the effect that the personal remedy is number available in this case before exhausting the charged properties, is number sustainable. Now, companying to the second point, the companytentions raised are that, on a true companystruction of the terms of. the trust deed the interest of the judgment-debtor, Rajes, 1 in the properties companyered by the trust deed, and 2 in particular, in property No. 44/2, Lansdowne Road sought to be attached, is only a companytingent one and hence number attachable. That a mere companytingent interest though transferable inter vivos is number attachable is well settled since the Privy Council decision in Pestonjee Bhicajee v. P. H. Anderson 1 . The question as to whether the interest of the judgment-debtor, Rajes, in this case is vested or companytingent, is one number altogether free from difficulty. But it is well to numberice at the outset that this point has number been raised in the petition filed by the judgment-debtor, Rajes, under s. 47 of the Code of Civil Procedure. What is stated therein is merely the following Under the said deed of trust, the judgment debtor has numberinterest in the property except that of a trustee and as such the decree holder cannot proceed for realisation of her alleged dues against the said property. The objection in this form is obviously untenable and has number been urged in any of the companyrts below. Indeed, if under the trust deed the judgment-debtor has a beneficial interest, it is number disputed that such beneficial interest would be attachable provided it is a I.L.R. 1939 Bom. 36. vested interest and number a companytingent interest. The judgment of the executing companyrt, however, shows that what was dealt with there is the companytention that the interest under the trust deed was a mere expectancy as opposed to a vested interest. The Court held that the interest which the judgment-debtors had in the property by virtue of the deed of trust was number a mere expectancy. On appeal to the High Court, numbere of the grounds set out in the appeal memorandum thereto relates to this question. The High Court, however, dealt with the matter on the footing that the question is whether the interest of the judgment-debtor under the deed of trust is a vested as opposed to a companytingent interest. It does number appear to us that question in this form should have been allowed to be raised. Its determination may well depend upon the question whether as a fact the companytingency suggested has disappeared by virtue of subsequent ,-,vents. However, since the point has been allowed to be raised and the decision of the High Court is given on the footing of the matter being solely one of companystruction of the document, we proceed to companysider it. The main provision under which the two brothers, Rajes and Ramendra, get any interest under the trust deed is that companytained in sub-cls. a and b of cl. 12, which are as follows On the liquidation of all the debts of the settlor including the debt, if any, that may be incurred by the trustee for payment of the settlors debts and after his death this trust shall companye to- an end and the properties described in Schedule A shall devolve as follows- The properties being Lot I, Lot II, Lot III, and Lot IV described in the said Schedule A hereunder written including the surplus income thereof shall devolve on the said Rajes Kanta Roy absolutely or if he be then dead,. then the said properties shall devolve on his heirs then living absolutely but subject to the provisions companytained in clause c hereof regarding premises No. 44/2, Lansdowne Road The properties being Lot V described, in the said Schedule A hereunder written including the surplus income thereof shall be enjoyed by the said Ramendra Kanta Roy during his lifetime or if he be then dead then the said properties shall devolve on his son or sons if any absolutely but if there be numberson living at that time and if there be a grand-son sons son or grand-sons then on such grand-son or grand-sons absolutely. They show that Lots I to IV in Schedule A ultimately go to Rajes and Lot V alone goes to Ramendra. But the interest which either of these is to get in the properties allotted to each is expressed to be one which each will get after the trust companyes to an end. Now, it is only after the happening of the two events, viz., 1 the discharge of all the debts specified in the schedules including the debts, if any, that may be incurred by the trustee for payment of the settlors debts , and 2 the death of the settlor himself, that the trust companyes to an end and it is on the trust companying to an end that the sons get the properties allotted to them. It was recognised in arguments before us that the death of the settlor is number by any means an uncertain event and that, therefore, this involves numberelement of companytingency. But what was urged is that the discharge of the debts is an uncertain event in the sense that neither the factum number the time of such discharge is one that can be predicated with any certainty and that since the interest which the two brothers take is to be only after such discharge their respective interests therein are companytingent. It is pointed out that the settlor was very particular about the property number going into the hands of the two sons for their enjoyment as owners until after the debts are liquidated and that this is emphasised in various clauses of the trust deed. It is urged that this clearly shows the intention of the settlor to be that the discharge of the debts should be a companydition precedent for the vesting in them of any interest in the properties. Thus el. 3 of the trust deed imposes a specific obligation on the trustee that he shall pay the present existing just debts of the settlor. Clause 5 says that during the lifetime of the settlor and so long as all the debts of the settlor be number paid off the trustee shall pay monthly and every month Rs. 1,000- to the settlor, Rs. 300/- to Rajes and Rs. 200/- to Ramendra. In cl. 6 it is stated that on the death of the settlor before the liquidation of his debts the trustee shall pay to Rajes Rs. 800/- and Rs. 700/- to Ramendra per month. By virtue of these two clauses a sum of only Rs. 1,500/- out of the income is set aside for the benefit of the members of the family and hence by implication the rest of the income is to be applied towards discharge of the debts. Clauses 8 and 9 provide for payments out of the income in the event of death either of Rajes or of Ramendra before the liquidation of debts. Clause 10 provides for residence of the family as long as debts are number fully paid off. Clause 11 authorizes the trustee to sell, mortgage, or give a long lease of any of the properties for payment of the debts. Clauses 12 a and b proceed on the assumption that the surplus income after payments therefrom as provided is to be accumulated so long as the trust companytinues, i.e., debts are number discharged. Quite clearly, therefore, during the subsistence of the trust both the sons get only a portion of the income as specified above and do number get for themselves the full benefit out of the-properties respectively allotted to the until the debts are companypletely discharged. There is numberdoubt that these terms show that the settlor attached great importance to the discharge of the debts becoming an accomplished fact before the two sons take the full benefit by way of revolution of the property and that in order to facilitate the same he restricted his own enjoyment and that of his two sons to an aggregate limited sum of Rs. 1,500/- per month out of the income apart from a few other minor monthly payments . But can it be said that their interest in the property was made to depend on the event of the total discharge of the debts and that the discharge of the debts was companytemplated as an uncertain event. The determination of the question as, to whether an interest created by such is deed is vested or companytingent has to be guided generally by the principles recognised under,ss. 19 and 21 of the Transfer of Property Act, 1882, and ss. 119 and 120 of the Indian Succession Act, 1925. The learned Judges of the High Court relied on illustration v to s. 119 of the Indian Succession Act and the decision in Ranganatha Mudaliar v. A. Mohana Krishna Mudaliar 1 . The learned Solicitor General appearing for the appellant before us has urged that there is numbersuch inflexible rule of law as is assumed by the High Court, viz., that in spite of a clause requiring payment of debts before the property reaches the hands of the donee, the gift is a vested one. He drew our attention to the fact that both s. 19 of the Transfer of Property Act and s. 119 of the Indian Succession Act clearly indicate that if a companytrary intention appears from the document that will prevail.He has also drawn our attention to the case in Bernard v. Mountague 2 in which it was held, on a companystruction of the terms of the trust, that the payment of the debts was a companydition precedent to the vesting of the interest devised therein. How, such a matter, as the one before us, is treated in English law when it arises, appears from the following passages in the recognised textbooks. Williams on Executors and Administrators 13th Ed. , Vol. 2, at p. 658, states one of the two rules of companystruction to be that where the bequest -is in terms immediate, and the payment alone postponed, the legacy is vested. He states a number of exceptions to that rule and says the rule itself is always subservient to the intentions of the testator, and that the exception may be found in operation in cases where the testator has shown a clear intention that the legacies shall number vest till his debts are satisfied. The learned Solicitor-General relies also on a similar passage from Jarman on Wills 8th Ed. , Vol. II, at p. 1390, which states as follows So, where a testator clearly expressed his intention that the benefits given by his will should number vest till his debts were paid, the intention was carried. 1 1926 A.I.R. 1926 Madras 645. 2 1816 1 Mer. 422 35 E.R. 729. into execution, and the vesting as well as payment was held to be postponed. But it is to be numbericed that at p. 1373 in Jarman on Wills 8th Ed. , Vol. 11, it is also stated as follows It was at one period doubted whether a devise to a person after payment of debts was number companytingent until the debts were paid but it is number well-established that such a devise companyfers an immediately vested interest, the words of apparent postponement being companysidered only as creating a charge. Apart from any seemingly technical rules which may be gathered from English decisions and text-books on this subject, there can be numberdoubt that the question is really one of intention to be gathered from a companyprehensive view of all the terms of a document. The learned Solicitor-General frankly admitted this, and also that a Court has to approach the task of companystruction in such cases with a bias in favour of a vested interest unless the intention to the companytrary is definite and clear. It is, therefore, necessary to companysider the entire scheme of the deed of trust in the present case, having regard to the terms therein, and to gather the intention therefrom. By the date the settlor executed the deed of trust he had his two sons, Rajes and Ramendra and the widowed daughter-in-law, Santi Debi, the validity of whose marriage he was disputing. One of the main purposes of the trust deed, as appears from its preamble is to give the property to his two surviving sons, Rajes and Ramendra, after excluding his widowed daughter-in-law, Santi Debi, against whom he had developed prejudice on account of hers being a sagotra marriage. An equally important purpose of the trust was the discharge of his debts. For that purpose he made the following arrangements. 1 The entire property was companystituted a trust for the discharge of the debts and thereby he divested himself entirely of any interest therein or management thereof 2 The properties were to be in the management of his eldest son, Rajes, as the trustee thereof with powers of alienation for, payment of debts and 3 The use of the income for the sustenance of himself and his sons was limited to specified amounts thereof, viz., Rs. 1,500/-per mensem in order that the debts may be methodically and speedily discharged. There is numberevidence before us as to what the total income of the property at the time was and whether there would have been any substantial surplus available from the income for the discharge of debts. But Sch. A of the trust deed shows that the properties were fairly companysiderable and schedule B shows that the debts at the time were to the tune of Rs. 2,62,169-8-0. Clause 17 of the trust deed values the properties at rupees five lacs for the purposes of stamp duty and it may reasonably be assumed that the value would have been substantially higher. There can be numberreasonable doubt that the settlor did companytem. plate that, on a proper management of the property and with a scheme for the discharge of debts, there would emerge surplus income by the date of termination of trust. This appears from el. 12 a of the trust deed which specifically provides for the disposal of the surplus income of each lot which might accumulate during the companytinuance of the trust. It is, permissible, therefore, to think that the surpluses companytemplated would number be unsubstantial. Under cl. 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his son, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajess wife and Ramendra, are to become joint trustees and that on the death of either of them the surviving trustee shall be the sole trustee. There is numberprovision for any further devolution of trusteeship in the companytingency of such sole trustee also dying before the liquidation of the debts. The absence of any such provision may well be taken to indicate that, in the companytemplation of the settlor, the debts would be discharged and the trust would companye to an end, in any case, before the expiry of the three lives mentioned therein, i.e., Rajes, his wife and Ramendra,. While, therefore, the settlor does appear to have attached companysiderable importance to the liquidation of debts, there is numberhing to show that he was apprehensive that the debts would remain undischarged out of his properties and its income and that he companytemplated the ultimate discharge of his debts to be such an uncertain event as to drive him to make the accrual of the interest to his sons under the deed to depend upon the event of the actual discharge of his debts. In this companytext there are also other provisions in the trust deed which are of great significance. The two sons, Rajes and Ramendra, are number companypletely excluded from any benefit out of the settlors estate until the debts are discharged and the trust companyes to an end. It is provided that each of them has to be paid a specific amount per month out of the properties, i.e., Rs. 300/- and Rs. 200/- during the settlors lifetime and Rs. 800/- and Rs. 700/- after the settlors death. It is further provided that on the death of either of these two sons before the debts are discharged and the trust companyes to an end, the above amounts are to go to their respective legal heirs subject to some minor variations so far as it relates to Ramendrasheirs . The provision in this behalf, so far as Rajes with whose interest alone we are number companycerned shows that on his death during the companytinuance of the trust the amount payable to him monthly was to be paid to his widow and on her death to his legal heirs. The most significant provision in this companytext is that under cl. 12 a which, while allotting lots I to IV to Rajes and lot V to Ramendra, specifically provides also that surplus income thereof, i.e., such income as is referable to those lots, should devolve on the two sons in the same way. A reference to Sch. A shows that ,these lots are unequal and hence in the numbermal companyrse, if there had been numbersuch specific provision, the surplus income would have been equally divisible. The fact that the surplus incomes of the specified lots is also to devolve along with those specified lots themselves, is a clear indication that the companypus of these lots was earmarked for the two sons with the present income thereof but with a restriction on the enjoyment of the present income to specified sums, so as to facilitate orderly discharge of the debts. Now, there can be numberdoubt about the rule that where the enjoyment of the property is postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested and number companytingent. See Explanation to s. 19 of the Transfer of Property Act, Explanation to s. 119 of the Indian Succession Act. See also Williams on Executors and Administrators, 13th Ed., Vol. 2, p. 663, para. 1010, and Jarman on Wills, 8th Ed., Vol. 11, p. 1397 . This rule operates numbermally where the entire income is applied for the benefit of the donee. The distinguishing feature in this case is that it is number the entire income that is available to the donees for their actual use but only a portion thereof. But it is to be observed that according to the scheme of the trust deed, the reason for limiting the enjoyment of the income to a specified sum thereof, is obviously in order to facilitate and bring about the discharge of the debts. As already explained the underlying scheme of the trust deed is that the enjoyment is to be restricted until the debts are discharged. Whatever may be said of such a provision where a donee is number himself a person who is under any legal obligation aliunde to discharge such debts, the position in this case is different. The two sons are themselves persons who, if the settlor died intestate, would be under an obligation to discharge his debts out of the properties which devolve upon them. It is only the surplus which would be legally available for division between them. In such a case, the balance of the income which is meant to be applied for the discharge of the debts is also an application of the income for the benefit of the donees. It follows that the entire income is to be applied for the benefit of the doneees and only the surplus, if any, is available to the donees. Hence the provision in the trust deed that lots I to IV are to devolve on Rajes and lot V on Ramendra and that the surplus income of each of these lots after the discharge of the debts is also to devolve in the same way, clearly operates as numberhing more than the present allotment of these properties themselves to the donees ,subject. to the discharge of debts nationally in the same proportion. Thus, taking the substance of the entire scheme of this division between the two sons the position that emerges is as follows. 1 Specified lots are ear- marked for each of the two sons. 2 The present income out of those lots is to be applied for the discharge of the debts after payment of specified sums therefrom by way of monthly payments to the two sons and presumably such application is to be numberionally pro rata. 3 Any surpluses which remain from out of the income of each of the lots are to go to the very person to whom the companypus of the lot itself is to belong on the termination of the trust. 4 In the event of any of the two sons dying before the termination of the trust, his interest in the monthly payments out of the income is to devolve on his heirs. These arrangements taken together clearly indicate that what is postponed is number the very vesting of the property in the lots themselves but that the enjoyment of the income thereof is burdened with certain monthly payments and with the obligation to discharge debts therefrom numberionally pro rata, all of which taken together companystitute application of the income for his benefit. It may be numbericed at this stage that one of the features of a companytingent interest is that if a person dies before the companytingency disappears and before the vesting occurs, the heirs of such a person do number get the benefit of the gift. But the trust deed in question specifically provides in the case of Rajes-with whose interest alone we are companycerned- that even in the event of his death it is his heirs then surviving that would take the interest. It has been urged that the provision in el. 12 a in favour of the heirs then surviving is in the nature of a direct gift in favour of the heir or heirs who may be alive at the date when the companytingency disappears. But even so, this would make numberpractical difference. It is to be remembered that in this case the parties belong to the Dayabhaga school of Hindu Law -and this is admitted before us. It is also to be remembered that up to the third degree in the male line the principle of representation under the Hindu Law operates. The net result of the provision, therefore, is that whenever the alleged companytingency of discharge of debts may disappear the person on whom the interest would devolve would, in the numbermal companyrse, be the very heir the lineal descendant then surviving or the widow of Rajes. The actual devolution of the interest, therefore, would number be affected by the alleged companytingency. That being so, it is more reasonable to hold that the interest of Rajes under the deed is vested and number companytingent. This view is companyfirmed by the fact that under the companypromise decree which is number sought to be executed both the judgment- debtors, Rajes and Ramendra, created a charge for the monthly payment to Santi Debi and agreed to such charge being presently executable. This shows clearly that they themselves understood the interest available to them under the trust as a vested interest. In the companyrse of the discussions before us a number of other possibilities which may arise with reference to the actual terms of the deed were closely examined with a view to test how far they fit in with one view or the other of the nature of interest in question. But even such an elaborate companysideration of the possibilities did number throw any further light on the question at issue. We are, therefore, of the opinion that in so far as the interest of Rajes is companycerned in lots I to IV under the trust deed, it is vested and number companytingent. The further question that arises is whether in view of the terms to be numbericed, his interest in No. 44/2, Lansdowne Road, against which execution is sought is in any way different. The scope for any possible difference arises in view of the fact that the devolution of lots I to IV on Rajes or his heirs then living is specifically expressed to be subject to the provisions companytained in el. c hereof regarding premises No. 44/2, Lansdowne Road. The relevant provisions relating to this property are as follows. Clause 10 provides that the settlor as well as Rajes and Ramendra with their respective families should be entitled to reside in the premises during the settlors lifetime and so long as settlors debts are number fully paid off. Clause 12 c provides that after the death of the settlor and after all debts have been fully paid off and on the said Rajes or his legal heirs purchasing in the town of Calcutta or its suburbs a suitable house at a value number less than Rs. 40,000/- and making over the same to Ramendra absolutely, Rajes or his legal heirs shall be the absolute owner of the premises No. 44/2, Lansdowne Road, but that so long as such house be number purchased and made over to Ramendra, Rajes and Ramendra should both be entitled to reside in the said premises with their respective families. It is urged that, since it is thus specifically provided that until the discharge, by Rajes or his heirs, of the obligation to purchase another suitable house and to make over the same to Ramendra or his heirs, Rajes is number to be the absolute owner, this is a factor which imports a further element of companytain. agency, in the interest given to Rajes under this deed of trust in so far as it relates to premises No. 44/2, Lansdowne Road. It is companytended that in order to emphasise the additional companytingency as regards this item, subjection to cl. c as regards these premises, has been specifically incorporated in cl. 12 a . Now, it is to be numbericed that the preliminary portion of cl. 12 shows that on the liquidation of the debts and after the death of the settlor, the trust shall companye to an end and the properties in Lots I to IV are to devolve on Rajes. Clause 12 c , therefore, would prima facie show that the companytingency, if any, which arises by virtue of the obligation to provide alternative accommodation to Ramendra or his heirs is to arise only after the death of the settlor and the discharge of the debts, which taken together means the termination of the trust. So understood and assuming for the sake of argument that the obligation to provide alternative accommodation is by itself a companytingency, this would bring about a companytingent interest in premises No. 41/2, Lansdowne Road, in favour of Rajes, after the termination of the trust. It follows that this item of property would number be owned by anybody until that companytingency disappears. This would result in this item of property remaining without any legal ownership for the intervening period which is opposed to law. The learned Solicitor-General, presumably recognising this difficulty, was obliged to urge that the companytingency arising from the provision imposing obligation on Rajes and his dra should be read into the preliminary portion of el. 12 in so far as premises No. 44/2, Lansdowne Road, is companycerned. That is to say, according to him, the trust is to be companystrued as number companying to an end as regards this item of property alone until the obligation to provide alternative accommodation is discharged. This companystruction would be doing great violence to the language of cl. 12 which specifically shows in peremptory terms that the trust shall companye to an end on the liquidation of all the debts of the settlor and after his death. The companystruction companytended for is number justified by the phrase subject to the provisions companytained in cl. c hereof regarding premises No. 44/2, Lansdowne Road which occurs in cl. a thereof. The limitation by way of subjection has reference only to devolution of the properties in Lots I to IV absolutely. Neither the use of word devolution number of the word absolutely in cls. 12 a and c can be understood, in the companytext, as having any bearing on the vesting of the interest as opposed to the interest being companytingent, but only as indicating a full and unrestricted devolution of the property subject to numberlimitations as regards the enjoyment thereof, as opposed to a vesting and devolution subject to restricted enjoyment. It appears to us reasonably clear that the intention of the settlor, taking cls. 12 a and c together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties companyprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as the settlor is alive and the debts are number discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs. We are clearly of the opinion that the objection raised to the execution 1 on the ground that the properties charged are to be proceeded against, in the first instance, and 2 on the ground that the interest which Rajes gets under the trust deed either as regards the general properties companyered by the deed or as regards premises No. 44/2, Lansdowne Road, is companytingent, are untenable. If, as a fact, either the debts remain undis- charged or the alternative accommodation has number so far been provided, how the rights of persons affected thereby are to be safeguarded is number a matter that arises for companysideration before us and we express numberopinion thereupon.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE, JURISDICTION Criminal Appeals Nos. 20 to 23 of 1955. Appeals by special leave from the judgment and order dated May 7, 1954, of the Madras High Court in Criminal Revision Cases Nos. 57 to 60 of 1954 and Case Referred Nos. 2 to 5 of 1954. C. Chatterji, S. Venkatakrishnan and S. Subramanian, for the appellants. K. T. Chari, Advocate-General, Madras, Ganapathy Iyer and T. M. Sen, for the respondent. 1956. November 28. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The point for decision in these appeals is whether ss. 4 2 , 28, 29, 30, 31 and 32 of the Madras Prohibition Act No. X of 1937, hereinafter referred to as the Act, are unconstitutional and void. It will be companyvenient first to set out the impugned statutory provisions. Section 4, omitting what is number material runs as follows 4 1 Whoever a imports, exports, transports or possesses liquor or any intoxicating drug or g uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or j companysumes or buys liquor or any intoxicating drug or k allows any of the acts aforesaid upon premises in his immediate possession, shall be punished- Provided that numberhing companytained in this sub-section shall apply to any act done under, and in accordance with, the provisions of this Act or the terms of any rule, numberification, order, licence or permit issued thereunder. It shall be presumed until the companytrary is shown- a that a person accused of any offence under clauses a to j of sub-section 1 has companymitted such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug, for the possession of which he is unable to account satisfactorily and b that a person accused of any offence under clause k of sub-section 1 has companymitted such offence if an offence is proved to have been companymitted in premises in his immediate possession in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug. Section 28 provides that if any Collector, Prohibition Officer or Magistrate has reason to believe that an offence under s. 4 1 has been companymitted, he may issue a warrant for search. Section 29 companyfers on certain officers power to search and seize articles even without a warrant, under certain circumstances. Section 30 provides for certain classes of officers entering any place by day or night for inspection of stills, implements, liquor and the like. Section 31 authorises the officers empowered to make entry under ss. 28, 29 or 30, to break open any door or window and remove obstacles, if otherwise they companyld number make entry. Section 32 companyfers authority on a Prohibition Officer or any officer of the Police or Land Revenue Departments to arrest without warrant any person found companymitting any offence under s. 4 1 . Now, the facts are that on November 18, 1953, the Prohibition Officer, Madras City, and the Deputy Commissioner of Police made a search of premises No. 28, Thanikachala Chetty Street, Thyagarayanagar, Madras, and seized several bottles of foreign liquor and glasses companytaining whisky and soda. The appellant, Lakshmanan Chettiar, was residing at the premises, and the other three appellants, A. S. Krishna, R. Venkataraman and V. S. Krishnaswamy, were found drinking from the glass tumblers. All the four were immediately put under arrest and in due companyrse charge-sheets were laid against them for offences under the Act. The three appellants other- than Lakshmanan Chettiar were charged under ss. 4 1 a and 4 1 j for possession and companysumption of liquor, and Lakshmanan Chettiar was charged under s. 4 1 k for allowing the above acts in premises in his immediate possession, a under s. 12 for abetment of the offences. He was also charged under s. 4 1 a on the allegation that though he was a permit-holder, he was in possession of more units than were allowed under the permit, and that by reason of the proviso to that section, he had companymitted an offence under s. 4 1 a . Immediately after service of summons, the appellants filed an application unders. 432 of the Criminal Procedure Code, wherein they companytended that ss. 4 2 and 28 to 32 of the Act were repugnant to the provisions of the Constitution, and were therefore void, and prayed that the above question might be referred for the decision of the High Court. The Third Presidency Magistrate, before whom the proceedings were pending, allowed the application, and referred to the High Court as many as seven questions on the companystitutionality of various sections of the Act. This reference was heard by Rajamannar, C.J., and Umamaheswaram, J., who held, disagreeing with the appellants, that ss. 4 2 and 28 to 32 were valid,, and answered the reference against them. Against this judgment, the appellants have preferred the present appeals under Art. 136 of the Constitution. Two companytentions have been urged in support of the appeals Section 4 2 and sa. 28 to 32 of the Act are void under s. 107 of the Government of India Act, 1935, which was the Constitution Act in force when the Act in question was passed, because they are repugnant to the provisions of existing Indian laws with respect to the same matter, to wit, Indian Evidence Act I of 1872 and Criminal Procedure Code Act No. V of 1898, and 2 the impugned sections are repugnant to Art. 14 of the Constitution, and have therefore become void under Art. 13 1 . Taking the first companytention, the point for decision is whether the impugned provisions are hit by s. 107 of the Government of India Act, 1935. Subsection 1 of s. 107, which is the relevant provision, runs as follows If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is companypetent to enact or to any provision of an existing Indian law with -respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. For this section to apply, two companyditions must be fulfilled The provisions of the Provincial law and those of the Central legislation must both be in respect of a matter which is enumerated in the Concurrent List, and 2 they must be repugnant to each other. It is only when both these requirements are satisfied that the provincial law will, to the extent of the repugnancy, become void. The first question, therefore, that has to be decided is, is the subject-matter of the impugned -legislation one that falls, within the Provincial List, in which case s. 107 would be inapplicable, or is it one which falls within the Concurrent List, in which case the further question, whether it is repugnant to the Central legislation will have to be decided The Entries in the Lists which are material for the present discussion are the following List II-Provincial Legislative List. Jurisdiction and powers of all companyrts except the Federal Court, with respect to any of the matters in this list procedure in Rent and Revenue Courts. Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List 111. Offences against laws with respect of any of the matters in this list. List III-Concurrent Legislative List. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act. Evidence and oaths recognition of laws, public acts and records and judicial proceedings. Now, it is number companytested that the Madras Prohibition Act, as a whole, is a law in respect of intoxicating liquors, falling within Entry 31 of the Provincial list. The declared object of the enactment as stated in the preamble to it is to bring about the prohibition of the production, manufacture, possession, export, import, transport, purchase, sale and assumption of intoxicating liquors And this is carried out in s. 4 1 , which enacts prohibition in respect of the above matters, and imposes penalties for breach of the same. The other provisions of the Act may broadly be divided into those which are intended to effectuate s. 4 1 and those which regulate the grant of licences and permits. The legislation is thus on a topic which is reserved to the Provinces and would therefore fall outside a. 107 1 of the Constitution Act. The argument of Mr. N. C. Chatterjee for the appellant is that though the Act is within the companypetence of the Provincial Legislature in so far as it prohibits possession, sale, companysumption, etc., of liquor under 3. 4 1 , the matters dealt with under s. 4 2 and ss. 28 to 32 fall number within Entry 31 of List II but within Entries 5 and 2 respectively of List III, and to that extent, the legislation is on matters enumerated in the Concurrent List. He companytends that a. 4 2 enacting as it does a presumption to be drawn by the companyrt on certain facts being established, deals with what is purely a matter of evidence, and it is therefore number a law on intoxicating liquors but evidence. Likewise, he argues, the -provisions in ss. 28 to 32 deal with matters pertaining to Criminal Procedure, such as warrants, seizure and arrest, and have numberconnection with intoxicating liquors. It is accordingly companytended that ss. 4 2 and 28 to 32 are legislation under Entries 5 and 2 of List III, and that their validity must be tested under s. 107 1 . The appellants are right in their companytention that s. 4 2 of the Act enacts a rule of evidence but does it follow from this that it is a law on evidence, such as is companytemplated by Entry 5 in the Concurrent List ? so also ss. 28 to 32 undoubtedly deal with matters of Procedure in relation to crimes, but are they for that reason to be regarded as legislation on Criminal Procedure Code within Entry 2 of List III ? The basic assumption on which the argument of the appellants rests is that the heads of legislation set out in the several Lists are so precisely drawn as to be mutually exclusive. But then, it must be remembered that we are companystruing a federal Constitution, It is of the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces. The scheme Of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States companyld legislate, some overlapping of, the fields of legislation is inevitable. The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in ss. 91 and 92 the topic,-,, on which the Dominion and the Provinces companyld respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and companyprehensive, it was number long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the companystitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic with. in the companypetence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics number within its legislative companypetence The extent of the encroachment on matters beyond its companypetence may be an element in determining whether the legislation is companyourable, that is, whether in the guise of making a law on a matter within it companypetence, the legislature is, in truth, making a law on a subject beyond its companypetence. But where that is number the position, then the fact of encroachmen does number affect the vires of the law even as regards the area of encroachment. Vide Citizens Insurance Company of Canada v. William Parson8 1 , The Attorney General of Ontario v. The Attorney-General for the Dominion of Canada 1 , The Attorney-General of Ontari, v. The Attorney-General for the Dominion 3 , Union Colliery Company of British Columbia v. Bryden 4 Attorney-General for Canada v. Attorney-General for 1 1881 7 A. C. 96. 3 1896 A.C. 348. 2 1894 A.C. 189. 4 1899 A.C. 580. Ontario , , Attorney-General for Alberta v. AttorneyGeneral for Canada 2 , and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters 1 . The principles laid down in the above decisions have been applied in deciding questions as to the vires of statutes passed by the Indian legislatures under the Government of India Act, 1935. In Subrahmanyan Chettiar v. Muttuswami Goundan 4 , the question was as to whether the Madras Agriculturalist Relief Act IV of 1938, which was within the exclusive companypetence of the Provincial Legislature under Entries 20 and 21 in List 11 was ultra vires, in so far as it related to promissory numberes executed by agriculturists by reason of the fact that under Entry 28, List I, cheques, bills of exchange, promissory numberes and other like instruments were matters falling within the exclusive jurisdiction of the Centre. In holding that the legislation was intra vires, Sir Maurice Gwyer C. J. stated the reason in these terms It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character, for the purpose of determining whether it is legislation in respect of matters in this list or in that This point arose directly for decision before the Privy Council in PrafullaKumar Mukherjee v. The Bank of Commerce, Ltd. 5 . There, the question was whether the Bengal Money- Lenders Act, 1940, which 1 1937 A.C. 355. 4 1940 F.C.R. 188. 2 1939 A.C. 117. 5 1946-47 74 I.A. 23. 3 1940 A.C. 513. limited the amount recoverable by a money-lender for principal and interest on his loans, was valid in so far as it related to promissory numberes. Money-lending is within the exclusive companypetence of the Provincial Legislature under Item 27 of List II, but promissory numbere is a topic reserved for the Centre, vide List 1, Item 28. It was held by the Privy Council that the pith and substance of the impugned legislation being money lending, it was valid numberwithstanding that it incidentally encroached on a field of legislation reserved for the Centre under Entry 28. After quoting with approval the observations of Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar v. Muttuswami Goundan, supra above quoted, Lord Porter observed Their Lordships agree that this passage companyrectly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation. No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provision should be attributed and those which are merely incidental. But the overlapping of subjectmatter is number avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions. Subjects must still overlap, and where they do, the question must be asked what in pith and substance is the effect of the enactment of which companyplaint is made, and in what list is its true nature and character to be found. If these questions companyld number be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial legislation companyld never effectively be dealt with. Then, dealing with the question of the extent of the invasion by the Provincial legislation into the Federal fields, Lord Porter observed No doubt it is an important matter, number, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is number companycerned with ProVincial matters, but the question is number, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is number money-lending but promissory numberes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true companytent. Then, there is the decision of the Federal Court in Lakhi Narayan Das v. The Province of Bihar 1 . There, the question related to the validity of Ordinance No. IV of 1949 promulgated by the Governor of Bihar. It was attacked on the ground that as a legislation in terms of the Ordinance would have been void, under s. 107 1 of the Government of India Act, the Ordinance itself was void. The object of the Ordinance was the maintenance of public order, and under Entry I of List II, that is a topic within the exclusive companypetence of the Province. Then the Ordinance provided for preventive detention, imposition of companylective fines, companytrol of processions and public meetings, and there were special provisions for arrest and trial for offences under the Act. The companytention was that though the sections of the Ordinance relating to maintenance of public order might be companyered by Entry I in List II, the sections companystituting the offences and providing for search and trial fell within Items I and 2 of the Concurrent List, and they were void as being repugnant to the provisions of the Criminal Procedure Code. In rejecting this companytention, Mukherjea J. observed Thus all the provisions of the Ordinance relate to or are companycerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in companynection with the same. It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List 11 1 1949 F.C.R. 693. would companye within Item 37 of List II itself, and have been expressly excluded from Item I of the Concurrent List. The ancillary matters laying down the procedure for trial of such offences and the companyferring of jurisdiction on certain companyrts for that purpose would be companyered companypletely by Item 2 of List II and it is number necessary for the Provincial Legislature to invoke the powers under Item 2 of the Concurrent List. He accordingly held that the entire legislation fell within Entries I and 2 of List II, and that numberquestion of repugnancy under s. 107 1 arose. This reasoning furnishes a companyplete answer to the companytention of the appellants. The position, then, might thus be summed up When a law is impugned-on the ground. that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might inci- dentally trench on matters which are beyond its companypetence. It would be quite an erroneous approach to the question to view such a statute number as an organic whole, but as a mere companylection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are number. Now, the Madras Prohibition Act is, as already stated, both in form and in substance, a law relating to intoxicating liquors. The presumptions in s. 4 2 are number presumptions which are to be raised in the trial of all criminal cases, as are those enacted in the Evidence Act. They are to be raised only in the trial of offences under s. 4 1 of the Act. They are therefore purely ancillary to the exercise of the legis- lative power in respect of Entry 31 in List 11. So also, the provisions relating to search, seizure and arrest in sections 28 to 32 are only with reference to offences companymitted or suspected to have been companymitted under the Act. They have numberOperation generally or to offences which fall outside the Act. Neither the presumptions in section 4 2 number the provisions companytained in sections 28 to 32 have any operation apart from offences created by the Act, and must, in our opinion, be held to be wholly ancillary to the legislation under Entry 31 in List II. The Madras Prohibition Act is thus in its entirety a law within the exclusive companypetence of the Provincial Legislature, and the question of repugnancy under s. 107 1 does number arise. It is next companytended that the presumptions raised in s. 4 2 of the Act, are repugnant to Art. 14 of the Constitution, and that the section must accordingly be declared to have become void under Art. 13 1 . We are unable to see how s. 4 2 offends the requirement as to equality before law or the equal protection of laws. The presumptions enacted therein have to be raised against all persons against whom the facts mentioned therein are established. The argument of Mr. N. C. Chatterjee is that the facts set out in s. 4 2 on which the presumption of guilt is raised have numberreasonable relation to the offences themselves, that for example, possession of liquor can be numberevidence of possession of materials or apparatus for manufacture of liquor under s. 4 1 g , number possession of materials, apparatus for manufacture of liquor, evidence of possession or companysumption of liquor under s. 4 1 a and j , and that therefore the impugned provision must be struck down as denying equal protection. He relied in support of this companytention on the following observations of Holmes J. in William N. McFarland v. American Sugar Refining Company 1 As to the presumptions, of companyrse the legislatures may go a good way in raising one or in changing the burden of proof, but there are limits. It is essential that there shall be some rational companynection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall number be so unreasonable as to be a purely arbitrary mandate. Mobile J. K.C.R. Co. Turnipseed 2 . 1 241 U.S. 79 at 86-87 60 L. Ed. 899, 904. 2 219 U.S. 35, 43 55 L. Ed. 78, 80. The law on this subject is thus stated by Rottschaefer on Constitutional Law, 1939 Edition, at page 835 The power of a legislature to prescribe rules of evidence is universally recognised, but it is equally well established that due process limits it in this matter. It may establish rebuttable presumptions only if there is a rational companynection between what is proved and what is permitted to be inferred therefrom. The law would thus appear to be based on the due ,process clause, and it is extremely doubtful whether it can have application under our Constitution. But a reference to American authorities clearly shows that the presumptions of the kind enacted in s. 4 2 have been upheld as reasonable and number hit by the due process or equal protection clause. In Albert J. Adams v. People of the State of New York 1 , a law of New York had made it an offence to be knowingly in possession of gambling instruments, and enacted further that possession of such instruments was presumptive evidence of knowledge. It is thus in terms similar to s. 4 1 a of the Act, which makes it an offence to be in possession of liquor, and to s. 4 2 which raises a rebuttable presumption of guilt under s. 4 1 a . In rejecting the companytention that the presumption was a violation of the due process clause, the Court observed We fail to perceive any force in this argument. The policy slips are property of an unusual character, and number likely, particularly in large quantities, to be found in the possession of innocent parties. Like other gambling paraphernalia, their possession indicates their use or intended use, and may well raise some inference against their possessor in the absence of explanation. Such is the effect of this statute. Innocent persons would have numbertrouble in explaining the possession of these tickets, and in any event the possession is only prima facie evidence, and the party is permitted to produce such testimony as will show the truth companycerning the -possession of the slips. Furthermore, it is within the established power of the state to prescribe the evidence which is to be received in the companyrts of its own government. 1 192 U.S. 585 48 L. Ed. 575. In Robert Hawes v. State of Georgia 1 , the question arose with reference to a statute of the State of Georgia, which had made it an offence to knowingly permit persons to locate in premises apparatus for distilling and manufacturing prohibited liquors. It also enacted a presumption that when such apparatus was found in a place, the person in occupation thereof shall be presumed to have knowingly permitted the location of the apparatus. The question was whether this presumption was repugnant to the due process clause. In holding that it was number, the Court observed Distilling spirits is number an ordinary incident of a farm, and, in a prohibition state, has illicit character and purpose, and certainly is number so silent and obscure in use that one who rented a farm upon which it was or had been companyducted would probably be ignorant of it. On the companytrary, it may be presumed that one on such a farm, or one who occupies it, will know what there is upon it. It is number arbitrary for the state to act upon the presumption and erect it into evidence of knowledge. number peremptory, of companyrse, but subject to explanation, and affording the means of explanation. It is therefore clear that even on the application of the due process clause, the presumptions laid down in s. 4 2 cannot be struck down as unconstitutional. We should add that the companystruction which the appellants seek to put on s. 4 2 that a person in possession of liquor companyld, under that section, be presumed to have companymitted an offence under s. 4 1 g or that a person who is in possession of materials, implement or apparatus companyld be presumed to have companymitted offences under s. 4 1 a and j is number companyrect. In our opinion, the matters mentioned in s. 4 2 should be read distributively in relation to the offences mentioned in s. 4 1 . Possession of liquor, for example, is an offence under s. 4 1 a . The presumption in s. 4 2 is that if it is found in the possession of a person, he should be presumed to have companymitted the offence under s. 4 1 a , unless he companyld give satisfactory explanation therefor, as for example, that it must have been foisted in the place without his knowledge. Likewise, it would be an 1 258 U.S. 1 66 L. Ed. 431. offence under s. 4 1 g to be in possession of materials, still, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor. Under s. 4 2 a , if a person is found to be in possession of materials or other things mentioned in the sub-section, there is a presumption that he has companymitted an offence under s. 4 1 g , but it is open to him to account satisfactorily therefor. The companytention, therefore, that there is numberreasonable relation between the presumption and the offence is, in our opinion, based on a misreading of the section.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 279 and 280 of 1955. Appeal from the Judgment and Order dated July 7 1953, of the Assam High Court in Civil Rules Nos. 147 and 148 of 1952, K. Dophtary, Solicitor-General of India, P. K. Goswami, N. Mukherji and B. N. Ghosh, for the appellants in both appeals. Purshottam Tricumdas and Naunit Lal, for respondent No. 2 in A. No. 280/56. Naunit Lal, for respondent No. I in both Appeals. 1956. December 21. The Judgment of the Court was delivered by BHAGWATI J.-,These two appeals with certificates under Art. 133 1 c of the Constitution are directed against a judgment of the High Court of Judicature in Assam dismissing the appellants application under Art. 226 challenging the orders -of the first respondent Shri B. L. Sen, Deputy Commissioner, Sibsagar, whereby he allowed the applications filed on behalf of the labourers employed in the Teok Tea Estate and the Dalim Tea Estate under section 20 of the Minimum Wages Act, 1948 Act XI of 1948 , hereinafter referred to as the Act. On March 11, 1952, the Government of Assam, in exercise of the powers companyferred by s. 3 read with sub-s. 2 of s. 5 of the Act issued the following numberification No. GLR. 352/51/56.-In exercise of the powers companyferred by section 3 read with sub-section 2 of section 5 of the Minimum Wages Act, 1948 XI of 1948 , as amended, the Governor of Assam, having companysidered the advice of the companymittee appointed under clause a of sub-section 1 of section 5 of the said Act, is pleased to fix minimum wages, which will companye into force with effect from the 30th March, 1952, companysisting of basic wages and dearness allowance in terms of clause 1 of sub-section 1 of section 4 of the said Act, at the rates as specified in the schedule hereto annexed payable to employees employed in tea plantations in the different districts of Assam. These rates are exclusive of companycessions enjoyed by the workers in respect of supplies of foodstuffs and other essential companymodities and other amenities which will companytinue unaffected. -The existing tasks and hours of work may companytinue until further orders. SCHEDULE. ORDINARY -UNSKILLED LABOUR Adult male. Adult female. 16 years above 16 years above Basic D.A. Total. BasicD.A.Total. wage. wage. p.d. p.d. p.d. p.d. p.d. p.d. Rest Rs. Rs. of Assam As.12/-As.6/-1 /21-As. 11/-As. 5- Valley. By numberification No. GLR. 44/51, dated the 16th April, 1952, the said Government introduced the Minimum Wages Rules which, inter alia, provided Rule 24. Number of hours of work which shall companystitute a numbermal working day.- The number of hours which shall companystitute numbermal working day shall be- a in the case of an adult, 9 hours subject to a maximum of 48 hours in a week By another numberification No. GLR. 352/51 dated May 12, 1952, the said Government explained that the word may mentioned in the numberification dated March 11, 1952, will have the force of shall . The result was that in cl. 2 of the said numberification, the last sentence ran as The existing tasks and hours of work shall companytinue until further orders. Prior to the fixation of the minimum wages companysisting of basic wages and dearness allowance as aforesaid, the labourers engaged in plucking tea leave, in these tea estates used to be paid basic wages for male labourers at as. 8/- per day for plucking 16 seers of green leaves and for female labourers at as. 6/- per day for plucking 12 seers of green leaves. This was the work-load or task in respect of which-the basic wages of as. 8/- and as. 6/- respectively were paid to these labourers apart from the dearness allowance in addition to such basic wages. If the labourers plucked larger quantities of green leaves they used to be paid by way of ticca extra wages at the rate of 6 ps. per seer in excess of 16 seers and 12 seers respectively. It may be numbered that -the payment of basic wages on the above companyputation also worked out at the rate of 6 ps. per seer of green leaves plucked by the labourers. Even after the fixation of the minimum wages by the said numberification, the managers of these tea-estates companytinued to pay to the labourers wages at the rate of 6 ps. per seer of green leaves plucked by them. They, however, in view of the fact that as. 12/- per day were fixed as the basic wages for the male labourers and as. II - per day as the basic wages for the female labourers, refused to make any extra payment to them on the basis of 6 ps. per seer unless the green leaves plucked by them exceeded 24 seers and 22 seers respectively, thus maintaining their old standard of payment on the basis of 6 ps. per seer. The labourers companytended that the existing work-load or task at the date of the said numberification was 16 seers for male labourers and 12 seers for female labourers and they were entitled to such extra payment at the rate of 6 ps. per seer for leaves plucked by them in excess of -the 16 seers and 12 seers respectively. There was a difference thus in payment, of as. 4/- per day in the case of male labourers and as. 51- per day in the case of female labourers and they claimed that the managers of the tea estates should pay them the basic wages of as. 12/per day and as. I I - per day respectively for the work- load or task of 16 seers for male labourers and 12 seers for female labourers and extra wages at the rate of 6 ps. per seer of leaves plucked by them in excess of those quantities. This claim of theirs was the subject-matter of the applications filed on their behalf before the Deputy Commissioner, Sibsagar, under s. 20 2 of the Act. The applicants asked for directions under a. 20 3 to the managers, of the tea estates for payment of the difference between the minimum wages fixed by the Government and the wages actually paid to them from March 30, 1952, which was the date from which the numberification came into force. The managers of the estates companytested these applications mainly on two grounds viz., 1 that the applications were number maintainable under s. 20 of the Act, and 2 that there was numberfixed workload or task in respect of plucking for earning daily basic wages before the introduction of the minimum wages. The Deputy Commissioner, Sibsagar, who was the authority appointed under the Act to hear the claims arising out of the payment of less than the minimum rates of wages to these labourers, entertained the applications, recorded evidence and heard arguments addressed to him by both the parties. As regards the first objection, he held that, if the applicants version was true there was a clear case of payment of less than the minimum wages fixed by the Government and the applications were maintainable under s. 20 of the Act. As regards the second objection, he came to the companyclusion on the evidence recorded before him that there was a work-load or task of 16 seers for male labourers and 12 seers for female labourers in respect of the daily basic wages of as. 8/- and as. 6/- respectively earned by them before the fixation of the minimum wages by the said numberification, that such work-load or task was the basis of the fixation of the minimum wages companysisting, inter alia, of the basic wages of as. 12/- per day for male labourers and as. II - per day for female labourers and that the labourers were, therefore, entitled to extra payment for green leaves plucked by them in excess of 16 seers and 12 seers respectively at the rate of 6 ps. per seer. He accordingly ordered that the managers must pay the labourers engaged in plucking tea leaves the minimum basic wages at the rate of as. 12/- per day to the male labourers for 16 seers of green leaves and as. 11/- per day to the female labourers for 12 seers of green leaves and extra wages at the rate of 6 ps. per seer for green leaves plucked in excess of those quantities. The managers of the estates thereupon filed applications under Art. 226 of the Constitution before the High Court of Judicature in Assam raising the -same companytentions which had been negatived by the Deputy Commissioner, Sibsagar. The High Court dismissed these applications and granted the certificates under Art. 133 1 c and that is how these appeals companye before us. It is urged in the first instance that the numberification dated March 11, 1952, fixed only I a minimum time rate and numbermore. Under s. 3 2 of the Act it was companypetent to the Government to fix a a minimum rate of wages for time work called a minimum time rate , b a minimum rate of wages for piece work called a minimum piece rate or c a minimum rate to be applied in the case of employees employed on piece work for the purpose of securing to such, employees a minimum rate of wages on a time work basis called a guaranteed time rate- and what was done by the Government was to fix a minimum time rate within the meaning of s. 3 2 a so that the labourers were to be paid the basic wages mentioned in the Schedule regardless of their out-turn of work. If this companytention is companyrect, the labourers would number be entitled to any extra wages for the quantities of green leaves plucked by them in excess of the 16 seers or 12 seers per day which was alleged to be the existing work-load or task at the date of the numberification. It is, therefore, urged that prior to such fixation of minimum wages there was numberwork-load or task for the labourers engaged in plucking tea leaves. This companytention is obviously unsound. Both the Deputy Commissioner, Sibsagar, and the High Court found as a fact that before the fixation of the minimum wages as above, there was a basic work-load or task of 16 seers of leaves for the male labourers and 12 seers of leaves for the female labourers. This was proved by the evidence of the Hazira Moharers of these estates and this was recognized by the Government itself when it stated in the numberification that the existing tasks and hours of work shall companytinue until further orders. If the minimum basic wages were fixed irrespective of existing work-load or task and what was fixed was a minimum time rate as companytended by the appellants there was numberneed whatever to mention this in the numberification. The direction that the existing workload or task was to companytinue until further orders on the companytrary goes to show that the basic wages mentioned in the Schedule were companyrelated to the existing workload or task and as. 12/- for the male labourers and as. 11/- for the female labourers were fixed in regard to the existing work- load or task of 16 seers of tea leaves to be plucked by the male labourers and 12 seers of tea leaves to be plucked by the female labourers. It is argued that the companytinuance of the existing work-load or task which was thus provided for had numberrelation to the basic wages which were fixed for the male and female labourers respectively but was only intended to prevent the employers from increasing the existing work-load or task with a view to make up for the increase in basic wages. This argument, however, does number take companynt of the fact that there was existing at the date of the numberification a work- load or task which was the basis of the payments used to be made to the labourers, the basic wages paid to them being calculated at the rate of 6 ps. per seer of tea leaves plucked by them. The labourers were thus being paid the basic wages of as. 8/- for male labourers and as. 6/for female labourers for the work-load or task of plucking 16 seers and 12 seers of tea leaves respectively and the sole intention of the Government in issuing the numberification was to increase these basic wages of as. 8/and as. 6/- to as. 12/- and as. II - respectively while maintaining the same basic work-load or task assigned to the male and female labourers. If the intention was number to companyrelate these basic wages to the basic work-load or task which already existed and if the same state of affairs was to companytinue, viz., that the labourers would companytinue to be paid the basic wages on the companyputation of 6 ps. per seer of green leaves plucked by them, there was numbersense whatever in increasing the basic wages from as. 8/- to as. 12/- for male labourers and from as. 6/- to as. II - for female labourers as was sought to be done by issuing the numberification in question. The acceptance of the companytention of the appellants would mean that numberadvantage whatever was sought to be companyferred by the Government on the labourers engaged in plucking leaves in these tea estates which intention can scarcely be attributed to the Government. We are, therefore, of opinion that what was fixed by the numberification was number merely a minimum time rate irrespective of the existing work-load or task which used to be performed by the labourers- but was a minimum wage which, though fixed for time work, was necessarily companyrelated to the work-load or task then being performed by these labourers so that whatever extra work was done by the labourers in excess of the existing work-load or task of plucking 16 seers of tea leaves in the case of male labourers and 12 seers of tea leaves in the case of female labourers had to be paid for in accordance with the practice then prevailing, whether it was based on agreement or ticca or custom, at the rate of 6 ps. per seer. The companyclusions reached in this behalf both by the Deputy Commissioner, Sibsagar, and the High Court are, therefore, companyrect and cannot be challenged. The appellants, however, companytend that this is number a case of payment of less than the minimum rates of wages and the claims, if any, of the labourers do number fall within s. 20 of the Act. The tea estates in question have never refused to pay and are in fact paying to the labourers the basic wages of as. 12/- per day for male labourers and as. II - per day for female labourers and the grievance, if any, of the labourers is that they have number been paid the extra wages calculated on the basis of 6 ps. per seer for tea leaves plucked by them in excess of the basic work-load or task of 16 seers for male labourers and 12 seers for female labourers. This claim of the labourers, therefore, amounts to a claim for extra wages over and above the basic wages of as. 12/- and as. II - per day respectively which are being paid to them and, therefore, is number a claim arising out of the payment of less than the minimum rates of wages within the meaning of s. 20 1 of the Act and the Deputy Commissioner, Sibsagar, had numberjurisdiction to entertain such claim. Section 20 so far as is material for our purposes provides Claims.- The appropriate Government may, by numberification in the official Gazette, appoint any Commissioner for Workmens Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages to employees employed or paid in. that area. Where an -employee is paid less than the minimum rates of wages fixed for his class of work under this Act, the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub-section 1 , may apply to such Authority for a direction under sub. section 3 When any application under sub-section 2 is entertained, the Authority shall hear the applicant and the employer or give them an opportunity of being heard, and after such further enquiry if any as it may companysider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid,, together with the payment of such companypensation as the Authority may think fit, number exceeding ten times the amount of such excess and the Authority may direct payment of such companypensation in cases where the excess- is paid by the employer to the employee before the disposal of the application. Every direction of the Authority under this section shall be final. It -is argued that the authority appointed under s. 20 1 of the Act is invested with the powers of hearing and deciding claims arising out of the payment of less than the minimum rates of wages and is authorised to hear the applicant and the employer or give them an opportunity of being heard, and, after such further enquiry, as it may companysider necessary, to give directions under s. 20 3 of the Act which directions are final and number subject to any appeal or revision by any higher authority. Such drastic powers companyld number have been meant to be exercised when there are companyplicated questions of law or fact but companyld be exercised only in cases where the, quantum of minimum wages fixed by the numberification in question companyld be determined by the authority on a plain reading of the terms, thereof. Then and -then only would the authority have jurisdiction to entertain such claims and give the necessary direction, having the attribute of finality. In the instant cases before us, number only did the matters involve companyplicated questions of fact which required recording of evidence by the authority but they also involved the companystruction of the numberification which was by numbermeans felicitously worded. The existing tasks which were to companytinue until further orders were number at all patent and if the determination thereof had to be made by the authority appointed under s. 20 1 of the Act, it would involve, in cases of dispute, recording of companysiderable evidence and an adjudication of the same after a companysideration of the arguments advanced before the authority by both the parties. There is in the instant cases moreover a further difficulty and it is that there are two rival companytentions which can, with equal force, be urged by the respective parties. The appellants companytend that they have all throughout been paying to the laborers, after the date of the numberification in question, basic wages at the rate of as. 12/- per day for male labourers and as. 1 1 - per day for the female labourers and there is numberinstance which has been cited on behalf of the respondents where, anything less then the minimum basic wages thus fixed by the Government has ever been paid. The claim of the labourers companyes to this that they have number been paid the extra wages for plucking green leaves in excess of the basic work-load or task of 16 seers and 12 seers respectively. Such claim for extra wages certainly does number amount to a claim arising out of the payment of less than the minimum rates of wages. It is, on the other hand, companytended on behalf of the respondents that the basic wages of as. 12/. per day for male labourers and as. II - per day for female labourers fixed under the numberification are companyrelated -to the existing work-load, or task of plucking green leaves weighing 16 Beers and 12 seers respectively and if they are entitled to the payment of these basic wages on their putting forward that much quantity of work, the number- payment by the managers.of these tea estates to them of any extra wages on the companyputation of 6 ps. per extra seer un- less they plucked 24 seers and 22 seers of green leaves respectively is tantamount to numberpayment of the minimum basic wages of as. 12/- and as. 11/- respectively as fixed in the numberification. We do number, propose to decide this question of jurisdiction as in the instant cases we have, in addition to the determination of the Deputy Commissioner, Sibsagar, the adjudication of the main disputes between the parties by the High Court itself. I Whatever infirmities might possibly have attached to the orders passed by the Deputy Commissioner, Sibsagar, on the score of want of jurisdiction, we feel that having regard to the circumstance that the matters have been pending since September, 1952, right up to the end of the year 1956, numberuseful purpose will be served by our interfering at this stage, as the Deputy Commissioner, Sibsagar, and the High Court both came to the same companyclusion, a companyclusion which we also have endorsed above, that the labourers are entitled to be paid the basic wages of as. 12/-per day,for male labourers and as. 11/- per day for female labourers for the work.load or task of plucking 16 seers and 12 seers of green leaves respectively and-- they are -entitled to extra wages for every seer of green leaves plucked by. them I over and above these quantities of 16 seers and 12 ,seers respectively, at the. companyputation of 6 Ps. per seer. There are moreover special reasons why we should number interfere with the orders of the Deputy Commissioner, Sibsagar, in these appeals. The matters do number companye to us by way of appeal directly from the orders of the Deputy Commissioner, Sibsagar. They were the subject, in the first instance, of proceedings under Art. 226 of the Constitution in the High Court of Assam. Proceedings by way of certiorari are number of companyrse . Vide Halsburys Laws of England, Hailsham Edition, Vol. 9, para 1480 and 1481, pp. 877-878 . The High Court of Assam had the power to refuse the writs if it was satisfied that there was numberfailure of justice, and in these appeals which are directed, against the orders of the High. -Court in applications under Art. 226, we companyld refuse to interfere unless we are satisfied that the justice of the, case requires it. But we are number so satisfied. We are of opinion that, having regard to the merits which have been companycurrently foundint favour of the respondents both by the De-Duty Commissioner,, Sibsagar, and the High Court, we should decline to interfere. This being the point of substance which has been decided in favour of the respondents, we are of the opinion that the appeals are liable to be dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 247 of 1953. Appeal by special leave from the judgment and decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952 arising out of the decree dated March 7, 1952 of Bombay High Court in its Ordinary Original Civil Jurisdiction in Suit No. 1177 of 1951. C. Setalvad, Attorney-General for India, Purshottam Tricumdas, T. Godiwala, J. B. Dadachanji, Rameshwar Nath and N. Andley, for the appellant. K. Daphtary, Solicitor-General of India and Sardar Bahadur, for the respondent. 1956. October 19. The Judgment of the Court was delivered by SINHA J.-This is an appeal by special leave against the judgment and decree of the High Court of Judicature at Bombay dated August 22,1952, reversing those of a single Judge of that Court on the Original Side, dated March 7,1952, by which he had granted a decree for dissolution of marriage between the appellant and the respondent. The facts and circumstances of this case may be stated as follows The appellant, who was the plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain Community. The families of both the parties belong to Patan, which is a town in Gujarat, about a nights rail journey from Bombay. They lived in Bombay in a two-room flat which was in occupation of the appellants family companysisting of his parents and his two sisters, who occupied the larger room called the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen. The appellants mother who is a patient of asthma lived mostly at Patan. There is an issue of the marriage, a son named Kirit, born on September 10, 1945. The defendants parents lived mostly at Jaigaon in the East Khandesh district in Bombay. The parties appear to have lived happily in Bombay until a third party named Mahendra, a friend of the family came upon the scene and began to live with the family in their Bombay flat some time in 1946, after his discharge from the army. On January 8, 1947, the appellant left for England on business. It was the plaintiffs case that during his absence from Bombay the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiffs departure for England she carried on amorous companyrespondence with Mahendra who companytinued to stay with the plaintiffs family in Bombay. One of the letters written by the defendant to Mahendra while staying at the plaintiffs flat in Bombay, is Ex. E as officially translated in English, the original being in Gujerati except a few words written in faulty English. This letter is dated April,1947, written from the plaintiffs house at Patan, where the defendant bad been staying with her mother-in-law. This letter had been annexed to the plaint with the official translation. It was denied by the defendant in her written statement. But at the trial her companynsel admitted it to have been written by her to Mahendra. As this letter started all the trouble between the parties to this litigation, it will have to be set out in extenso hereinafter. Continuing the plaintiffs narrative of the events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from abroadon May 2O, 1947. To receive him back from his foreign journey the whole family including the defendant was there in Bombay. According to the plaintiff, he found that on the first night after his return his bed had been made in the hall occupied by his father and that night he slept away from his wife. As this incident is said to have some significance in the narrative of events leading up to the separation between the husband and the wife and about the reason for which the parties differ, it will have to be examined in detail later. Next morning, that is to say, on May 21, 1947, the plaintiffs father handed over the letter aforesaid to the plaintiff, who recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with reference to the letter. He handed it to a photographer to have photo companyies made of the same. That very day in the evening he asked his wife as to why she had addressed the letter to Mahendra. She at first denied having written any letter and asked to see the letter upon which the plaintiff informed her that it was with the photographer with a view to photo companyies being made. After receiving the letter and the photo companyies from the photographer on May 23, the plaintiff showed the defendant the photo companyy of the letter in companytroversy between them at that stage and then the defendant is alleged to have admitted having written the letter to Mahendra and to have further told the plaintiff that Mahendra was a better man than him and that Mahendra loved her and she loved him. The next important event in the narrative is what happened on May 24, 1947. On the morning of that day, while the plaintiff was getting ready to go to his business office his wife is alleged to have told him that she had packed her luggage and was ready to go to Jalgaon on the ostensible ground that there was a marriage in her fathers family. The plaintiff told her that if she had made up her mind to go, he would send the car to take her to the station and offered to pay her Rs. 100 for her expenses. But she refused the offer. She left Bombay apparently in the plaintiffs absence for Jalgaon by the afternoon train. when the plaintiff came back home from his office, he discovered that she had taken away everything with her and had left numberhing behind. It may be added here that the plaintiffs mother had left for Patan with his son some days previously. Plaintiff s case further is that the defendant never came back to Bombay to live with him, number did she write any letters from Jalgaon, where she stayed most of the time. It appears further that the plaintiff took a very hasty, if number also a foolish, step of having a letter addressed to the defendant by his solicitor on July 15, 1947, charging her with intimacy between herself and Mahendra and asking her to send back the little boy. ,The parties violently differ on the intent and effect of this letter which will have to be set out in extenso at the appropriate place. No answer to this letter was received by the plaintiff. In November, 1947, the plaintiffs mother came from Patan to Bombay and informed the plaintiff that the defendant might be expected in Bombay a few days later. Thereupon the plaintiff sent a telegram to his father-in-law at Patan. The telegram is worded as follows- Must number send Prabha. Letter posted. Wishing happy new year. The telegram stated that a letter bad been posted. The defendant denied that any such letter bad been received by her or by her father. Hence the original, if any, is number on the record. But the plaintiff produced what he alleged to be a carbon companyy of that letter which purports to have been written on November 13, 1947, the date on which the telegram was despatched. An English translation of that letter is Ex. C and is to the following effect- Bombay 13-11-47 To Rajmanya Rajeshri Seth Popatlal others. There is numberletter from you recently. You must have received the telegram sent by me today. Further, this is to inform you that I have received information from my Mami mother that Prabha is going to companye to Bombay in 3 or 4 days. I am surprised to hear this news Ever since she has gone to Jalgaon, there has been number a single letter from her to this day. Not only that, but, although you know everything, neither you number any one on your behalf has companye to see me in this companynection. What has made Prabha thus inclined to companye all of a sudden After her behaviour while going to Jalgaon for the marriage, and after , her letter to Mahendra and her words. He is better than you-Has feeling for me and I love him and all this, I was afraid that she would number set up a house with me. Hence when my mother gave me the news of her return, I was surprised. I have number the slightest objection to the return of Prabha, but if she gives such shameless replies to me and shows such improper behaviour, I shall number be able to tolerate the same. If she number really realises her mistake and if she is really repenting and wants sincerely to companye, please make her write a reply to this letter. On getting a letter from her, I shall personally companye to Patan to fetch her. Kirit is young. For his sake also, it is necessary to persuade Prabha. Further, I have to state that I have so far kept peace. I have made efforts to call back Prabha. Please understand this to her my final effort. If even number Prabha does number give up her obstinacy, I am number responsible and then do number blame me. Well, that is all for the present. Kirit must be bale and hearty. My new years greetings to you all. Please do assign to me such work-as I can manage. Written by Bipinchandra The plaintiff stated that be received numberanswer either to the telegram or to the letter. Two days later, on, November 15, the plaintiffs father addressed a letter to the defendants father, which is Ex. D. This letter makes reference. to the defendants mother having, talked to the plaintiffs mother about sending the defendant I to Bombay and to the fact that the plaintiff bad sent a telegram on November 13, and ends with the expression of opinion by the plaintiffs father that it was absolutely necessary that the plaintiffs companysent should be obtained before sending the defendant to Bombay. This letter also remained unanswered. According to the plaintiff, numberhing happened until May, 1948, when he went to Patan and there met the defendant and told her that if she repented for her relations with Mahendra in the interests of the child as well as our own interests she companyld companye back and live with me. To that the defendant is said to have replied that in November, 1947, as a result of pressure from her father and the companymunity, she had-been thinking of companying to live with the plaintiff but that she had then decided number to do so. The defendant has given quite a different version of this interview. The second interview between the plaintiff and the defendant again took place at Patan some time later in 1948 when the plaintiff went there to see her on companying to know that she had been suffering from typhoid,. At that time also she evinced numberdesire to companye back to the plaintiff. The third and the last interview between the plaintiff and the defendant took place at Jalgaon in April-May, 1949. At that interview also the defendant turned down the plaintiffs request that at least in the interests of the child she should companye back to him. According to the plaintiff, since May 24, 1947, when the defendant left his home in Bombay of her own accord, she bad number companye back to her marital home. The suit was companymenced by the plaintiff by filing the plaint dated July 4, 1951, substantially on the ground that the defendant bad been in desertion ever since May 24, 1947, without reasonable cause and without his companysent and against his will for a period of over four years. He therefore prayed for a decree for a dissolution of his marriage with the defendant and for the custody of the minor child. The suit was companytested by the defendant by a written statement filed on February 4, 1952, substantially on the ground that it was the plaintiff who by his treatment of her after his return from England had made her life unbearable and companypelled her to leave her marital home against her wishes on or about May 24, 1.947. She denied any intimacy between herself and Mahendra or that she was companyfronted by the plaintiff with a photostat companyy of the letter., Ex. E, or that she had companyfessed any such intimacy to the plaintiff. She admitted having received the Attorneys letter, Ex. A, and also that she did number reply to that letter. She adduced her fathers advice as the reason for number sending any answer to that letter. She added that her paternal uncle Bhogilal since deceased and his son Babubhai saw the plaintiff in Bombay at the instance of the defendant and her father and that the plaintiff turned down their request for taking her back. She also made reference to the negotiations between the defendants mother and the plaintiffs mother to take the defendant back to Bombay and that the defendant companyld number go to Bombay as a result of the telegram of November 13, 1947, and the plaintiffs fathers letter of November 15, 1947, aforesaid. She also stated that the defendant and her son, Kirit, both lived with,the plaintiffs family at Patan for over four months and off and on on several occasions. The defendants definite case is that she had always been ready and willing to go back to the plaintiff and that it was the plaintiff who all along had been wailfully refusing to keep her and to companyabit with her. On those allegations she resisted the plaintiffs claim for a decree for a dissolution of the marriage. On those pleadings a single issue was joined between the parties, namely,- Whether the defendant deserted the plaintiff for a companytinuous period of over four years prior to the filing of the suit. At the trial held by Tendolkar, J. of the Bombay High Court on the Original Side, the plaintiff examined only himself in support of his case. The defendant examined herself, her father, Popatlal, and her companysin, Bhogilal, in support of her case that she had been all along ready and willing to go back to her marital home and that in spite of repeated efforts on her part through her relations the plaintiff had been persistently refusing to take her back. The learned trial Judge answered the only issue in the case in the affirmative and granted a decree for divorce in favour of the plaintiff, but made DO order as to the companyts of the suit. He held that the letter, Ex. E reads like a love letter written by a girl to her paramour. The reference to both of them having been anxious about something and there being number numberneed to be anxious any more can only be to a possible fear that she might miss her monthly periods and her having got her monthly period thereafter, because, if it were number so and the reference was to anything innocent, there was numberhing that she should have repented later on in her mind as she says she did, number should there have been occasion for saying after all love is such an affair. With reference to that letter he further held that it was capable of the interpretation that she had misbehaved with Mahendra and that she was companyscious of her guilt. With reference to the incident of May 24, the learned Judge observed that having regard to the demeanour of the plaintiff and of the defendant in the witness box, he was inclined to prefer the husbands testimony to that of the wife in all matters in which there was a companyflict. He held therefore that there was desertion with the necessary animus deserendi and that the defendant had failed to prove that she entertained a bonafide intention to companye back to the marital home, that is to say, there was numberanimus revertendi. With reference to the companytention that the solicitors letter of July 15,1947, had terminated the desertion, if any, he held that it was number well founded inasmuch as the defendant had at numbertime a genuine desire to return to her husband. He made numberreference to the prayer in the plaint that the custody of the child should be given to the father, perhaps because that prayer was number pressed. The defendant preferred an appeal under the Letters Patent which was heard by a. Division Bench companysisting of Chagla J. and Bhagwati J. The Appellate Bench, allowed the appeal, set aside the decision of the trial Judge and dismissed the suit with companyts. It held that the defendant was number guilty of desertion, that the letter of July 15, 1947, clearly established that it was the plaintiff who had deserted the defendant. Alternatively, the Appellate Court held that even assuming that the defendant was in desertion as a result of what had happened on May 24, and subsequently, the letter aforesaid bad the effect of putting an end to that desertion. In its judgment the letter, Ex. E, did number justify the plaintiff having any reasonable suspicions about his wifes guilt and that the oral evidence of the defendant and her relations proved the wifes anxiety to return back to her husband and of the obduracy of the husband in refusing to take the wife back. The plaintiff made an application to the High Court for leave to appeal to this Court. The leave asked for was refused by another Division Bench companysisting of the Chief Justice and Dixit J. Thereafter the plaintiff moved this Court and obtained special leave to appeal from the judgment of the Appellate Bench of the High Court. In this appeal the learned Attorney-General appearing on behalf of the appellant and the learned Solicitor-General appearing on behalf of the respondent have placed all relevant companysiderations of fact and law before us, and we are beholden to them for the great assistance they rendered to us in deciding this difficult case. The difficulty is enhanced by the fact that the two companyrts below have taken diametrically opposite views of the facts of the case which depend mostly upon oral testimony of the plaintiff-husband and the defendant-wife and number companyroborated in many respects on either side. It is a case of the husbands testimony alone on his side and the wifes testimony aided by that of her father and her companysin. As already indicated, the learned trial Judge was strongly in favour of preferring the husbands testimony to that of the wife whenever there was any companyflict. But he made numberreference to the testimony of the defendants father and companysin which, if believed, would give an entirely different companyour to the case. Before we deal with the points in companytroversy, it is companyvenient here to make certain general of observations on the history of the law on the subject and the well established general principles on which such cases are determined. The suit giving rise to this appeal is based on section 3 1 d of the Bombay Hindu Divorce Act, XXII of 1947, which hereinafter will be referred to as The Act which came into force on May 12, 1947, the date the Governors assent was published in the Bombay Government Gazette. This Act, so far as the Bombay Province, as it then was, was companycerned, was the first step in revolutionizing the law of matrimonial relationship, and, as the Preamble shows, was meant to provide for a right of divorce among all companymunities of Hindus in certain circumstances. Before the enactment, dissolution of a Hindu marriage particularly amongst what were called the regenerate classes was unknown to general Hindu law and was wholly inconsistent with the basic companyception of a Hindu marriage as a sacrament, that is to say, a holy alliance for the performance of religious duties. According to the Shastras, marriage amongst the Hindus was the last of the ten sacraments enjoined by the Hindu religion for purification. Hence according to strict Hindu law as given by the Samhitas and as developed by the companymentators, a Hindu marriage companyld number be dissolved on any-ground whatsoever, even on account of degradation in the hierarchy of castes or apostacy. But custom, particularly amongst the tribal and what used to be called the lower castes recognised divorce on rather easy terms. Such customs of divorce on easy terms have been in some instances held by the companyrts to be against public policy. The Act in section 3 sets out the grounds of divorce. It is numbericeable that the Act does number recognise adultery simpliciter as one of the grounds of divorce, though cl. f renders the fact that a husband has any other woman as a companycubine and that a wife is a companycubine of any other man or leads the life of a prostitute a ground of divorce. In the present case we are immediately companycerned with the provisions of s. 3 1 d , which are in these terms- 3. 1 A husband or wife may sue for divorce on any of the following grounds, namely- d that the defendant has deserted the plaintiff for a companytinuous period of four years. Desertion has been defined in section 2 b in these terms- Desert means to desert without reasonable cause and without the companysent or against the will of the spouse. It will be seen that the definition is tautological and number very helpful and leads us to the Common Law of England where in spite of repeated legislation on the subject of matrimonial law, numberattempt has been made to define desertion. Hence a large body of case law has developed round the legal significance of desertion. Marriage under the Act means a marriage between Hindus whether companytracted before or after the companying into operation of this Act. Husband means a Hindu husband and wife means a Hindu wife. In England until 1858 the only remedy for desertion was a suit for restitution of companyjugal rights. But by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made a ground for a suit for judicial separation. It was number till 1937 that by the Matrimonial Causes Act, 1937, desertion without cause for a period of three years immediately preceding the institution of proceedings was made a ground for divorce. The law has number been companysolidated in the Matrimonial Causes Act, 1950 14 Geo. VI, c. 25 . It would thus appear that desertion as affording a cause of action for a suit for dissolution of marriage is a recent growth even in England. What is desertion? Rayden on Divorce which is a standard Work on the subject at p. 128 6th Edn. has summarised the case-law on the subject in these terms- Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing companyabitation permanently to on end without reasonable cause and without the companysent of the other spouse but the physical act of departure by one spouse does number necessarily make that spouse the deserting party. The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsburys Laws of England 3rd Edn. Vol. 12, in the following words- In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others companysent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being numbergeneral principle applicable to all cases. Desertion is number the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the companymon obligations of the married state the state of things may usually be termed, for short, the home. There can be desertion without previous companyabitation by the parties, or without the marriage having been companysummated. The person who actually withdraws from companyabitation is number necessarily the deserting party. , The fact that a husband makes an allowance to a wife whom he has abandoned is numberanswer to a charge of desertion. The offence of desertion is a companyrse of companyduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is number companyplete, but is inchoate, until the suit is companystituted. Desertion is a companytinuing offence. Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease companyabitation, it will number amount to desertion. For the offence of desertion, so far as the deserting spouse is companycerned, two essential companyditions must be there., namely, 1 the factum of separation, and 2 the intention to bring companyabitation permanently to an end animus deserendi . Similarly two elements are essential so far as the deserted spouse is company- cerned 1 the absence of companysent, and 2 absence of companyduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential companyditions must companytinue throughout the companyrse of the three years immediately preceding the institution of the suit for divorce under the Act, the period is four years without specifying that it should immediately precede the companymencement of proceedings for divorce. Whether the omission of the last clause has any practical result need number detain us, as it does number call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may number in another case be capable of leading to the same inference that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by companyduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act companyld be attributable to an animus deserendi. The offence of desertion companymences when the fact of separation and the animus deserendi companyexist. But it is number necessary that they should companymence at the same time. The de facto separation may have companymenced without the necessary animus or it may be that the separation and the animus deserendi companyncide in point of time for example, when the separating spouse abandons the marital home with the intention, express or-implied, of bringing companyabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a companytinuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to companye back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been companymenced,, desertion companyes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and number the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such companyditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though companyroboration is number required as an absolute rule of law, the companyrts insist upon companyroborative evidence, unless its absence is accounted for to the satisfaction of the companyrt. In this companynection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson 1 may be referred to- These cases are number cases in which companyroboration is required as a matter of law. It is required as a matter of precaution With these preliminary observations we number proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether 1 1955 1 All E.R. 341, 342. there was an unreasonable refusal on the part of the husband to take her back. In this companynection the plaintiff in the witness box deposed to the incident of the night of May 20, 1947. He stated that at night he found that his bed had been made in the hall in which his father used to sleep, and on being questioned by him, the defendant told him that it was so done with a view to giving him the opportunity after a long absence in England to talk to his father. The plaintiff expressed his wish to the defendant that they should sleep in the same room as they used to before his departure for England, to which the wife replied that as the bed had already been made, it would look indecent if they were removed. The plaintiff therefore slept in the hall that night. This incident was relied upon by the plaintiff with a view to showing that the wife had already made up her mind to stop companyabitation. This incident has number been admitted by the defendant in her cross-examination. On the other hand she would make it out that it was at the instance of the plaintiff that the bed had been made in the hall occu- pied by his father and that it was the plaintiff and number she who was responsible for their sleeping apart that night. As the learned trial Judge has preferred the plaintiffs testimony to that of the defendant on all matters on which there was simply oath against oath, we would number go behind that finding. This incident by itself is capable of an innocent explanation and therefore has to be viewed along with the other incidents deposed to by the plaintiff in order to prove his case of desertion by the defendant. There was numberreason why the husband should have thought of sleeping apart from the wife because there was numbersuggestion in the record that the husband was aware till then of the alleged relationship between the defendant and Mahendra. But the wife may have been apprehensive that the plaintiff had known of her relations with Mahendra. That apprehension may have induced her to keep out of the plaintiffs way. The most important event which led to the ulti- mate rupture between the parties took place on May 21, 1947, when in the morning the plaintiffs father placed Mahendras letter aforesaid in the plaintiffs hands. The letter which has rightly been pointed out in the companyrts below as the root case of the trouble is in its relevant parts in these terms- Mahendrababu, Your letter has been received. I have read the same and have numbered the companytents. In the same way, I hope, you will take the trouble of writing me a letter number and then. I am writing, this letter with fear in my mind, because if this reaches anybodys hands, that cannot be said to be decent. What the mind feels has got to be companystrained in the mind only. On the pretext of lulling my son to sleep, I have been sitting here in this attic, writing this letter to you. All others are chitchatting below. I am thinking number and then that I shall write this and shall write that. Just number my brain cannot go in any way. I do number feel like writing on the main point. The matters on which we were to remain anxious and you particularly were anxious, well we need number number be. I very much repented later on in my mind. But after all love is such an affair. Love begets love . While yet busy doing services to my mother-in-law, the clock strikes twelve. At this time, I think of you and you only, and your portrait shoots up before my eyes. I am reminded of you every time. You write of companying, but just number there is numberhing like a necessity, why unnecessarily waste money? And again numberody gets salvation at my bands and really numberody will. You know the natures of all. Many a time I get tired and keep on being uneasy in my mind, and in the end I weep and pray God and say, 0 Lord, kindly take me away soon I am number obsessed by any kind of anxiety and so relieve me from this mundane existence. I do number know how many times I must be thinking of you every day This letter is number signed by the defendant and in place of the signature the word namaste finds place. The companytents of the letter were put to the defendant in cross-examination. At that time it was numbermore a companytested document, the defendants companynsel having admitted it during the cross-examination of the plaintiff. She stated that she had feelings for Mahendra as a brother and number as a lover When the mysterious parts of the letter beginning with the words The matters on which and ending with the words such an affair were put to her, she companyld number give any explanation as to what she meant. She denied the suggestion made on behalf of the plaintiff in these words- It is number true that the reference here is to our having had sexual intercourse and being afraid that I might remain pregnant. The sentence I very much repented later on in my mind was also put to her specifically and her answer was I do number know what I repented for. I wrote some thing foolishly. Pressed further about the meaning of the next sentence after that, her answer was I cannot number understand how I came to write such a letter. I admit that this reads like a letter written by a girl to her lover. Besides the fact that my brain was number working properly I bad numberexplanation to give as to how I wrote such a letter. She also admitted that she took good care to see that the. other members of the family, meaning the mother-in-law and the sisters-in-law, did number see her writing that letter and that she wanted that the letter should remain a secret to them. Being further pressed to explain the sentence We need number be anxious number, her answer was I did number intend to companyvey that I had got my monthly period about which we were anxious. I cannot say what the numbermal natural meaning of this letter would be. She bad admitted having received at least one letter from Mahendra. Though it would appear from the trend of her cross-examination that she received more letters than one, she stated that she did number preserve any of his letters. She has further admitted in cross-examination I have number signed this letter. It must have remained to be signed by mistake. I admit that under the letter where the signature should be I have put the word Namaste only. It is number true that I did number sign this letter because I was afraid, that if it got into the hands of any one, it might companypromise me and Mahendra. Mahendra would have known from my handwriting that this was my letter. I had previously written one letter to him. That letter also I had number signed. I had only said Namaste. The tenor of the letter and the defendants explanation or want of explanation in the witness box of those portions of the letter which very much need explanation would leave numbermanner of doubt in any person who read that letter that there was something between her and Mahendra which she was interested to keep a secret from everybody. Even when given the opportunity to explain, if she companyld, those portions of the letter, she was number able to put any innocent meaning to her words except saying in a bland way that it was a letter from a sister to a brother. The trial companyrt rightly discredited her testimony relating to her answers with respect to the companytents of the letter. The letter shows a companyrespondence between her and Mahendra which was clearly unworthy of a faithful wife and her pose of innocence by characterising it as between a sister and a brother is manifestly disingenuous. Her explanation, if any, is wholly unacceptable. The plaintiff naturally got suspicious of his wife and naturally taxed her with reference to the companytents of the letter. That she had a guilty mind in respect of the letter is shown by the fact that she at first denied having written any such letter to Mahendra, a denial in which she persisted even in her answer to the plaint. The plaintiffs evidence that he showed her a photostatic companyy of that letter on May 23, 1947, and that she then admitted having written that letter and that she bad tender feelings for Mahendra can easily be believed. The learned trial Judge was therefore justified in companying to the companyclusion that the letter betrayed on the part of the writer a companysciousness of guilt. But it is questionable how far the learned Judge was justified in observing further that the companytents of the letter are only capable of the interpretation that she had misbehaved with Mahendra during the absence of the plaintiff. If he meant by the word misbehaved that the defendant had sexual intercourse with Mahendra, he may be said to have jumped to the companyclusion which did number necessarily follow as the only companyclusion from them. The very fact that a married girl was writing amorous letters to a man other than her husband was reprehensible and easily capable of furnishing good grounds to the husband for suspecting the wifes fidelity. So far there can be numberdifficulty in assuming that the husband was fully justified in losing temper with his wife and in insisting upon her repentance and assurance of good companyduct in future. But we are number prepared to say that the companytents of the letter are capable of only that interpretation and numberother. On the other hand, the learned Judges of the Appeal Court were inclined to view this letter as an evidence merely of what is sometimes characterised as platonic love between two persons who by reasons of bond of matrimony are companypelled to restrain themselves and number to go further than merely showing love and devotion for each other. We are number prepared to take such a lenient, almost indulgent, view of the wifes companyduct as betrayed in the letter in question. We cannot but sympathise with the husband in taking a very serious view of the lapse on the wifes part. The learned Judges of the Appeal Court have castigated the companynsel for the plaintiff for putting those questions to the defendant in cross-examination. They observe in their judgment speaking through the Chief Justice that there was numberjustification for the companynsel for the plaintiff to put to the defendant those questions in cross-examination suggesting that she had intercourse with Mahendra as a result of which they were apprehending future trouble in the shape of pregnancy and illegitimate child birth. It is true that it was number in terms the plaintiffs case that there had been an adulterous intercourse between the defendant and Mahendra. That need number have been so, because the Act does number recognise adultery as one of the grounds for divorce. But we do number agree with the appellate Court that those questions to the defendant in cross-examination were number justified. The plaintiff proposed to prove that the discovery of the incriminating letter companytaining those mysterious sentences was the occasion for the defendant to make up her mind to desert,the plaintiff. We do number therefore agree with the observations of the appellate Court in all that they have said in respect of the letter in question. There can be numberdoubt that the letter in question made the plaintiff strongly suspicious of his wifes companyduct to put it rather mildly , and naturally he taxed his wife to know from her as to what she bad to say about her relations with Mahendra. She is said to have companyfessed to him that Mahendra was a better man than the plaintiff and that he loved her and she loved him. When matters had companye to such a head, the natural reaction of the parties would be that the husband would get number only depressed, as the plaintiff admitted in the witness box, but would in the first blush think of getting rid of such an unloving, if number a faithless, wife. The natural reaction of the defendant would be number to face the husband in that frame of mind. She would naturally wish to be out of the sight of her husband at least for some time, to gain time for trying, if she was so minded, to reestablish herself in her husbands estimation and affection, if number love. The event of the afternoon of May 24, 1947, must therefore be viewed in that light. There was going to be performed the marriage of the defendants companysin at her fathers place of business in Jalgaon, though it was about five to six weeks from then. The plaintiff would make it out in his evidence that she left rather in a recalcitrant mood in the afternoon during his absence in office with all her belongings and that she had refused his offer of being sent in his car to station and Rs. 100 for expenses. This companyduct on the part of the wife can easily be explained as that of a person who had found that her love letter had been discovered by the husband. She would-naturally try to flee away from the husband for the time being at least because she had number the moral companyrage to face him. The question is whether her leaving her marital home on the afternoon of May 24, 1947, is only companysistent with her having deserted, her husband, in the sense that she had deliberately decided permanently to forsake all relationship with her husband with the intention of number returning to companysortium, without the companysent of the husband and against his wishes. That is the plaintiffs case. May that companyduct be number companysistent with the defendants case that she had number any such intention, i.e., being in desertion? The following observations of Pollock, R. in Thomas v. Thomas 1 may usefully be quoted in this companynection- Desertion is number a single act companyplete in itself and revocable by a single act of repentance. The act of departure from the other spouse draws its significance from the purpose with which it is done, as revealed by companyduct or other expressions of intention see Charter v. Charter 2 . A mere temporary parting is equivocal, unless and until its purpose and object is made plain. I agree with the observations of Day J. in Wilkinson v. Wilkinson 3 that desertion is number a specific act, but a companyrse of companyduct. As Corell Barnes J. said in Sickert v. Sickert 4 The party who intends bringing the companyabitation to an end, and whose companyduct in reality causes its termination, companymits the act of desertion. That companyduct is number necessarily wiped out by a letter of invitation to the wife to return. The defendants further case that she bad been turned out of the house by the husband under duress cannot be accepted because it is number companyroborated either by circumstances or by direct testimony. Neither her father number her companysin say a word about her speaking to them on her arrival at Jalgaon that she had been turned out of her husbands home. If her case that she bad been forcibly turned out of her marital home by the husband had been made out, certainly the husband would have been guilty of companystructive desertion, because the test is riot who 1 1924 P. 194. 3 58 J. P. 415. 2 84 L T. 272. 4 1899 P. 278, 282, left the matrimonial home first. See Lang v. Lang 1 . If one spouse by his words and companyduct companypel the other spouse to leave the marital home. the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home. It should be numbered that the wife did number cross-petition for divorce or for any other relief. Hence it is numbermore necessary for us to go into that question. It is enough to point out that we are number prepared to rely upon the uncorroborated testimony of the defendant Chat she had been companypelled to leave her marital home by the threats of the plaintiff. The happenings of May 24, 1947, as pointed out above, are companysistent with the plaintiffs case of desertion by the wife. But they are also companysistent number with the defendants case as actually Pleaded in her written statement, but with the fact and circumstances disclosed in the evidence, namely, that the defendant having been discovered in her clandestine amorous companyrespondence with her supposed paramour Mahendra, she companyld number face her husband or her husbands people living in the same flat in Bombay and therefore shamefacedly withdrew herself and went to her parents place of business in Jalgaon on the pretext of the marriage of her companysin which was yet far off. That she was number expected at Jalgaon on that day in companynection with the marriage is proved by her own admission in the witness box that when I went to Jalgaon everyone was surprised. As pointed out above, the burden is on the plaintiff to prove desertion without cause for the statutory period of four years, that is. to say, that the deserting spouse must be in desertion throughout the whole period. In this companynection the following observations of Lord Macmillan in his speech in the House of Lords in the case of Pratt v. Pratt 2 are apposite- In my opinion what is required of a petitioner for divorce on the ground of desertion is proof that throughout the whole companyrse of the three years the respondent has without cause been in desertion. The 1 1955 A.C. 402. 417. 2 1939 A C. 417, 420. 861, deserting spouse must be shown to have persisted in the intention to desert throughout the whole period. In fulfilling its duty of determining whether on the evidence a case of desertion without cause has been proved the companyrt ought number, in my opinion, to leave out of account the attitude of mind of the petitioner. If on the facts it appears that a petitioning husband has made it plain to his deserting wife that he will number receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot companyplain that she has persisted without cause in her desertion. It is true that the defendant did number plead that she had left her husbands home in Bombay in the circumstances indicated above. She, on the other hand, pleaded companystructive desertion by the husband. That case, as already observed, she has failed to substantiate by reliable evidence. But the fact that the defendant has so failed does number necessarily lead to the companyclusion that the plaintiff has succeeded in proving his case. The plaintiff must satisfy the companyrt that the defendant had been in desertion for the companytinuous period of four years as required by the Act. If we companye to the companyclusion that the happenings of May 24, 1947, are companysistent with both the companyflicting theories, it is plain that the plaintiff has number succeeded in bringing the offence of desertion home to the defendant beyond all reasonable doubt. We must therefore examine what other evidence there is in support of the plaintiffs case and in companyroboration of his evidence in companyrt. The next event of importance in this narrative is the plaintiffs solicitors letter of July 15, 1947, addressed to the defendant, care of her father at Jalgaon. The defendants companysins marriage was performed towards the end of June and she companyld have companye back to her husbands place, soon thereafter Her evidence is that after the marriage had been performed she was making preparations to go back to Bombay but her father detained her and asked her to await a letter from the plaintiff. The defendant instead of getting an invitation from the plaintiff to companye back to the marital home received the solicitors letter aforesaid, which, to say the least, was number calculated to bring the parties nearer. The letter is in these terms- Madam, Under instructions from our client Bipin Chandra J. Shah we have to address you as under- That you were married to our client in or about April 1942 at Patan. Since the marriage you and our client lived together mostly in Bombay and son by name Kirit was born on or about the 10th day of September 1944. Our client. states that he left for Europe in January last and returned by the end of May last. After our clients return, our client learnt that during our clients absence from India you developed intimacy with one Mahendra and you failed to give any satisfactory reply when questioned about the same and left for your parents under the pretext of attending to the marriage ceremony of your companysin. You have also taken the minor with you and since then you are residing with your father to evade any satisfactory explanation. Our client states that under the events that have happened, our client has become entitled to obtain a divorce and our client does number desire to keep you any longer under his care and protection. Our client desires the minor to be kept by him and we are instructed to request you to send back the minor to our client or if necessary our client will send his agent to bring the minor to him. Our client further states that in any event it will be in the interest of the minor that he should stay with our client. Our client has made this inquiry about the minor to avoid any unpleasantness when our clients agent companyes to receive the minor. The letter is remarkable in some respects,apart from antedating the birth of the son Kirit by a year. The letter does number in terms allege that the defendant was in desertion, apart from mentioning the fact that she had left against the plaintiffs wishes or that she had done so with the intention of permanently abandon ing her marital duties. On the other hand, it alleges that You are residing with your father to avoid any satisfactory explanation. The most important part of the letter is to the effect that the plaintiff had become entitled to obtain a divorce and that he does number desire to keep you any longer under his care and protection. Thus if the solicitors letter is any indication of the working of the mind of the plaintiff, it makes it clear that at that time the plaintiff did number believe that the defendant had been in desertion and that the plaintiff had positively companye to the determination that he was numberlonger prepared to affirm the marriage relationship. As already indicated, one of the essential companyditions for success in a suit for divorce grounded upon desertion is that the deserted spouse should have been willing to fulfill his or her part of the marital duties. The statement of the law in para 457 at p. 244 of Halsburys Laws of England 3rd Edn. Vol 12 may be usefully quoted The burden is on the petitioner to show that desertion without cause subsisted, throughout the statutory period. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole of the three year period. It has been said that a petitioner should be able honestly to say that he or she was all along willing to fulfill the duties of the marriage, and that the desertion was against his or her will, and companytinued throughout the statutory period without his or her companysent but in practice it is accepted that once desertion has been started by the fault of the deserting spouse, it is numberlonger necessary for the deserted spouse to show that during the three years preceding the petition be or she actually wanted the other spouse to companye back, for the intention to desert is presumed to companytinue. That presumption may, however, be rebutted. Applying those observations to the facts of the present case, can the plaintiff honestly say that be was all along willing to fulfill the duties of the marriage and that the defendants desertion, if any, companytinued throughout the statutory period without his companysent. The letter, Ex. A is an emphatic number In the first place, even the plaintiff in that letter did number allege any desertion and, secondly, he was number prepared to receive her back to the matrimonial home. Realising his difficulty when cross-examined as to the companytents of that letter, he wished the companyrt to believe that at the time the letter was written in his presence he was in a companyfused state of mind and did number remember exactly whether he numbericed the sentence -that he did number desire to keep his wife any longer. Pressed fur- ther in cross-examination, he was very emphatic in his answer and stated- It is number true that by the date of this letter I had made up my mind number to take her back. It was my hope that the letter might induce her parents to find out what had happened, and they would persuade her to companye back. I am still in the companyfused state of mind that despite my repeated attempts my wife puts me off. In our opinion, the companytents of the letter companyld number thus be explained away by the plaintiff in the witness box. On the other hand, it shows that about seven weeks after the wifes departure for her fathers place the plaintiff had at least for the time being companyvinced himself that the defendant was numbermore a suitable person to live with. That, as found by us, be was justified in this attitude by the reprehensible companyduct of his wife during his absence is beside the point. This letter has an importance of its own only in so far as it does number companyroborate the plaintiffs version that the defendant was in desertion and that the plaintiff was all along anxious to induce her to companye back to him. This letter is more companysistent with the supposition that the husband was very angry with her on account of her companyduct as betrayed by the letter, Ex. E and that the wife left her husbands place in shame number having the companyrage to face him after that discovery. But that will number render her in the eye of the law a deserter, as observed by Pollock, M. R. in Bowron v. Bowron 1 partly quoting from Lord Gorell as follows- In most cases of desertion the guilty party 1 1925 P. 187, 192. actually leaves the other, but it is number always or necessarily the guilty party who leaves the matrimonial home. In my opinion, the party who intends bringing the companyabitation to an end, and whose companyduct in reality causes its termination, companymits the act of desertion See also Graves v. Graves 1 Pulford v. Pulford 2 Jackson v. Jackson 2 where Sir Henry Duke P. explains the same doctrine. You must look at the companyduct of the spouses and ascertain their real intention. It is true that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has companytinued and that it is number necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home. So far we do number.find any companyvincing evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of companytinued desertion cannot arise. But it is number necessary that at the time the wife left her husbands home, she should have at the same time the animus deserendi. Let us therefore examine the question whether the defendant in this case, even if she had numbersuch intention at the time she left Bombay, subsequently decided to put an end to the matrimonial tie. This is in companysonance with the latest pronouncement of the Judicial Committee of the Privy Council in the case of Lang v. Lang 1 in an appeal from the decision of the High Court of Australia, to the following effect- Both in England and in Australia, to establish desertion two things must be proved first, certain outward and visible companyduct the factum of desertion secondly, the animus deserendi the intention underlying this companyduct to bring the matrimonial union to an end. In ordinary desertion the factum is simple it is the act of the absconding party in leaving the matrimonial home. The companytest in such a case will be almost entirely as to the animus. Was the intention 1 3 Sw. Tr. 350. 3 1924 P. 19. 2 1923 P. 18. 4 1955 A.G. 402, 417. of the party leaving the home to break it up for good, or something short of, or different from that? In this companynection the episode of November, 1947, when the plaintiffs mother came from Patan to Bombay is relevant. It appears to be companymon ground number that the defendant had agreed to companye back to Bombay along with the plaintiffs mother or after a few days. But on this information being given to the plaintiff he companyntermanded any such steps on the wifes part by sending the telegram, Ex. B,aforesaid and the plaintiffs fathers letter dated November 15, 1947. We are keeping out of companysideration for the present the letter, Ex. C, dated November 13, 1947, which is number admitted to have been received either by the defendant or her father. The telegram is in peremptory terms Must number send Prabha. The letter of November 15, 1947, by the plaintiffs father to the defendants father is equally peremptory. It says It is absolutely necessary that you should obtain the companysent of Chi. Bipinchandra before sending Chi. Prabhavati. The telegram and the letter which is a supplement to the telegram, as found by the companyrts below, companypletely negative the plaintiffs statement in companyrt that he was all along ready and willing to receive the defendant back to his home. The letter of November 13, 1947, Ex. C, which the plaintiff claims to have written to his father-in-law in explanation of the telegram and is a prelude to it is altogether out of tune with the tenor of the letter and the telegram referred to above. The receipt of this letter has been denied by the defendant and her father. In companyrt this letter has been described as a fake in the sense that it was an afterthought and was written with a. view to the legal position and particularly with a view to getting rid of the effect of the solicitors letter of July 15, which the plaintiff found it hard to explain away in the witness box. Neither the trial companyrt, which was entirely in favour of the plaintiff and which had accepted the letter as genuine, number the appellate Court, which was entirely in favour of the defendant has placed implicit faith in the bona fides of this letter. The lower appellate Court is rather ironical about it, observing This letter as it were stands in isolated glory. There is numberother letter. There is numberother companyduct of the plaintiff which is companysistent with this letter. Without going into the companytroversy as to the genuineness or bona fldes of this letter, it can be said that the plaintiffs attitude, as disclosed therein, was that he was prepared to take her back into the matrimonial home provided she wrote a letter to him expressing real repentance and companyfession of mistake. This attitude of the plaintiff cannot be said to be unreasonable in the circumstances of the case. He was more sinned against than sinning at the beginning of the companytroversy between the husband and the wife. This brings us to a companysideration of the three attempts alleged by the plaintiff to have been made by him to induce his wife to return to the matrimonial home when he made two journeys to Patan in 1948 and the third journey in April- May, 1949, to Jalgaon. These three visits are number denied by the defendant. The only difference between the parties is as to the purpose of the visit and the substance of the talk between them. That the plaintiffs attachment for the defendant had number companypletely dried up is proved by the fact that when he came to know that she had been suffering from typhoid he went to Patan to see her. On this occasion which was the second visit the plaintiff does number say that he proposed to her to companye back and that she refused to do so. He only says that she did number express any desire to companye back. That may be explained as being due to diffidence on her part. But in respect of the first and the third visits the plaintiff states that on both those occasions he wanted her to companye back but she refused. On the other hand, the defendants version is that the purpose of his visit was only to take away the child and number to take her back to his home. It is also the plaintiffs companyplaint that the defendant never wrote any letter to him offering to companye back. The wifes answer is that she did write a few letters before the solicitors letter was received by the father and that thereafter under her fathers advice she did number write any more to the plaintiff. In this companynection it becomes necessary to examine the evidence of her companysin Babulal and her father Popatlal. Her companysin, Babulal, who was a member of her fathers joint family, deposes that on receipt of the letter, Ex. A, a fortnight later he and his father, since deceased, came to Bombay and saw the plaintiff. They expostulated with him and pleaded the defendants cause and asked the plaintiff to forgive and forget and to take her back. The plaintiffs answer was that he did number wish to keep his wife. The defendants fathers evidence is to the effect that after receipt of the letter, Ex. A, he came to Bombay and saw the plaintiffs father at his residence and protested to him that a false numberice had been given to us. The plaintiffs father is said to have replied that they would settle the matters amicably He also deposes as to his brother and his brothers son having gone to the plaintiff. He further states that he with his wife and the defendant went to Patan and saw the plaintiffs mother and in companysultation with her made arrangements to send her back to Bombay. But before that companyld be done the telegram, Ex. B, and the letter, Ex. D, were received and companysequently he gave up the idea of sending the defendant to Bombay without straightening matters. Both these witnesses on behalf of the defendant further deposed to the defendant having done several times and stayed with the plaintiffs family, particularly his mother at Patan along with the boy. The evidence of these two witnesses on behalf of the defendant is ample companyroboration of the defendants ,case and the evidence in companyrt that she has all along been ready and willing to go back to the matrimonial home. The learned trial Judge has number numbericed this evidence and we have number the advantage of his companyment on this companyroborative evidence. This body of evidence is in companysonance with the natural companyrse of events. The plaintiff himself stated in the witness box that he had sent the solicitors letter by way of a shock treatment to the defendants family so that they might persuade his wife to companye back to his matrimonial home. The subsequent telegram and letters assuming that both the letters of the 13th and 15th November had been posted in the usual companyrse and received by the addressees would give a shock to the family. Naturally thereafter the members of the family would be up and doing to see that a reconciliation is brought about between the husband and the wife. Hence the visits of the defendants uncle and the father would be a natural companyduct after they had been apprised of the rupture between them. We therefore do number see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had number in terms been disbelieved by the trial companyrt. This part of the case on behalf of the defendant and her evidence is companyroborated by the evidence of the defendants relatives aforesaid. It cannot be seriously argued that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about a reconciliation They were anxious number only for the welfare of the defendant but were also interested in the good name of the family and the companymunity as is only natural in families like these which have number been so urbanised as to companypletely ignore the feelings of the companymunity. They would therefore be the persons most anxious in the interests of all the parties companycerned to make efforts to bring the husband and the wife together and to put an end to a companytroversy which they company- sidered to be derogatory to the good name and, prestige of the families companycerned. The plaintiffs evidence, on the other hand, on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run companynter to the tenor of his evidence in companyrt. We therefore feel inclined to accept the defendants case that after her leaving her husbands home and after the performance of her companysins marriage she was ready and willing to go back to her husband. It, follows from what we have said so far that the wife was number in desertion though she left her husbands home without any fault on the part of the plaintiff which companyld justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home. This companyclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother- in-law at Patan whenever she was there, sometimes for months, at other times for weeks. This companyduct is wholly inconsistent with the plaintiffs case that the defendant was in desertion during the four years that she was out of her matrimonial home. It is more companysistent with the defen- dants attempts to. get herself re-established in her husbands home after the rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother- in-law the defendant sent her three year old son to Bombay so that be might induce his ,father to send for the mother, The boy stayed in Bombay for about twenty days and then was brought. back to Patan by his father as he the boy was unwilling to stay there without the mother., This was in AugustSeptember 1948 when the defendant deposes to having questioned her husband why she bad number been called back and the husbands answer was evasive. Whether or number this statement of the defendant is true, there can be numberdoubt that the defendant would number have allowed her little boy of about three years of age to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother. The defendant has deposed to the several efforts made by her mother-in-law and her father-in-law to intercede on her behalf with the plaintiff but without any result. There is numberexplanation why the plaintiff companyld number examine his father and mother in companyroboration of his case of companytinuous desertion for the statutory period by the defendant. Their evidence would have been as valuable, if number more, as that of the defendants father and companysin as discussed above. Thus it is number a case where evidence was number available in companyroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which companyld be available to him, we must hold that the evidence given by the plaintiff falls short of proving his case of desertion by his wife. Though we do number find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable companyduct brought about a rupture in the matrimonial home and caused the plaintiff to become so companyd to her after she left him. In view of our finding that the plaintiff has failed to prove his case of desertion by the defendant, it is number necessary to go into the question of animus revertendi on which companysiderable argument with reference to case-law was addressed to us on both sides. For the aforesaid reasons we agree with the Appellate Bench of the High Court in the companyclusion at which they had arrived, though number exactly for the same reasons. The appeal is accordingly dismissed.

Case appeal was rejected by the Supreme Court

BHAGWATI, J. - These petitions under article 32 of the Constitution raise a companymon question of law whether section 5 7A of the Indian Income-tax Act, hereinafter called the Act, is ultra vires the Constitution as infringing the fundamental rights enshrined in article 14 and article 19 1 g . The facts which led to the filing of the petitions may be shortly stated. Petitions Nos. 97 and 97A of 1956 The petitioners and Messrs. Pannalal Binjraj, oil mill owners, merchants and companymission agents, carrying on business at Sahibganj in the district of Santhal Parganas, having their branch at 94, Lower Chitpur Road, Calcutta, petitioner No. 1, and R. B. Jamuna Das Chowdhury, resident of the same place and erstwhile Karta of the Hindu undivided family, which carried on business in the name and style of Messrs. Pannalal Binjraj, Petitioner No. 2. Before 28th September, 1954, they were being assessed by the Income-tax Officer, Special Circle, Patna. On 28th September, 1954, the Central Board of Revenue made an order transferring their cases to the Income-tax Officer, Central Circle XI, Calcutta. On 22nd January, 1955, the Central Board of Revenue transferred the cases of petitioner No. 2 to the Income-tax Officer, Central Circle VI, Delhi, and on 12th July, 1955, it similarly transferred the cases of petitioner No. 1 to the same officer. After the dates of such transfer to the Income-tax Officer, Central Circle VI, Delhi, said officer instituted several proceedings against them and the petitioners challenged in these petitions the validity of the said orders of transfer and all the subsequent proceedings including the assessment orders as well as the order levying penalty for number-payment of the income-tax which had been already assessed prior thereto, on the ground that section 5 7A of the Act was ultra vires the Constitution and all the proceedings which were entertained against the petitioners by the Income-tax Officer, Central Circle VI, Delhi, were without jurisdiction and void. Petitions Nos. 44 of 1956 and 85 of 1956 The petitioner in Petition No. 44 of 1956 is Shri A. L. Sud, the sole proprietor of Messrs. Amritlal Sud Construction who originally belonged to Hoshiarpur district in the State of Punjab but has since 1948 been residing and carrying on business in Calcutta. Prior to 29th June, 1955, he had been assessed to income-tax by the Income-tax Officer, Special Survey Circle VII, Calcutta. On 29th June, 1955, the Central Board of Revenue transferred his cast to the Income-tax Officer, Special Circle, Ambala, and the said officer companytinued the proceedings in the transferred case and also instituted further proceedings against the petitioner and assessed him under section 23 4 of the Act for the assessment years 1946-47 and 1947-48. Demands were made upon the petitioner for payment of the amount of income-tax thus assessed whereupon he filed this petition impeaching the validity of the order of the Central Board of Revenue dated 29th June, 1955, and the proceedings entertained by the Income-tax Officer, Special Circle, Ambala, on the ground that section 5 7A of the Act was ultra vires the Constitution. Petition No. 85 of 1956 was filed by Messrs. Bhagwan Das sud Sons, merchants, Hoshiarpur, but on that date their case was transferred under section 5 7A of the Act by the Commissioner of Income-tax Officer, Special Circle, Ambala. The said officer companytinued the said case and reopened the assessment for the years 1944-45 to 1950-51 and companypleted the assessment for the assessment years 1947-48, 1950-51 and 1951-52. These petitioners also thereupon filed the petition challenging the validity of the order of transfer made by the Commissioner of Income-tax Officer, Special Circle, Ambala, thereafter, on the same ground of the ultra vires character of section 5 7A of the Act. Shri A. L. Sud, the petitioner in petition No. 44 of 1956, is a member of the Hindu undivided family carrying on business in the name and style of Messrs. Bhagwan Das Sud Sons and the cases of both these petitioners were transferred to the Income-tax Officer, Special Circle, Ambala, as above, by the said respective orders. Petition Nos. 86 of 1956, 87 of 1956, 88 of 1956, III of 1956, 112 of 1956, and 158 of 1956 These petitions may be companypendiously described as the Amritsar group. The petitioner in Petition No. 86 of 1956 is Sardar Gurdial Singh, son of S. Narain Singh, son of S. Narain Singh. The No. 87 of 1956 is Dr. Sarmukh Singh, son of S. Narain Singh. The petitioner in Petition No. 112 of 1956 is S. Ram Singh, son of S. Narain Singh. These three are brothers and the petitioner in Petition No. 88 of 1956 is father, S. Narain Singh, son of S. Basdev Singh. The father and the three sons were the directors in the Hidustan Embroidery Mills Private Ltd., petitioner No. 1 in Petition No. 111 of 1956, which is located at Chheharta near Amritsar. All these petitioners were, prior to the orders of transfer made by the Commissioner of Income-tax Officer A Ward, Amritsar, but their cases were transferred on or about June 29, 1953, from the Income-tax Officer, A Ward. Amritsar, to the Income-tax Officer, Special Circle, Amritsar. These cases were companytinued by the latter officer and numberices under section 34 of the Act were also issued by him against them for the assessment years 1947-1948 to 1951-52. Each one of them filed a separate petition challenging the said orders of transfer by the Commissioner of Income-tax and the proceedings entertained by the Income-tax Officer, Special Circle, Amritsar, against them on the score of the unconstitutionality of section 5 7A of the Act. The petitioner in Petition No. 158 of 1956 is one Shri Ram Saran Das Kapur, the head and karta of the Hindu undivided family carrying on business outside Ghee Mandi Gate, Amritsar. His case also which, prior to the order companyplained against, was being entertained by the Income-tax Officer, F Ward, Amritsar, was transferred on some date in 1954 by an order of the Commissioner of Income-tax Officer, Special Circle, Amritsar. No objection was taken by the petitioner to this order of transfer until after the assessment order was passed against him, but he also challenged the validity of the said order of transfer and the proceedings entertained by the Income-tax Officer, Special Circle, Amritsar, thereafter on the same grounds as the other petitioners. Petitions Nos. 211 of 1956 to 215 of 1956 These petitions may be described as the Sriram Jhabarmull group. Though separately filed, the petitioner in each of them is the same individual, Nandram Agarwalla, who is the sole proprietor of a business which he carries on under the name and style of Sriram Jhabarmull. It is a business inter alia of import and export of piece-goods, as companymission agents, and dealers in raw wool and other materials. The principal place of business is at Kalimpong, in the district of Darjeeling, though there is also a branch at Calcutta. These petitions companycern the assessment of the petitioner to income-tax for the respective years 1944-45, 1945-46, 1946-47, 1947-48 and 1948-49. Prior to the orders of the Commissioner of Income-tax under section 5 7A of the Act companyplained against, the petitioner was being assessed by the Income-tax Officer, Jalpaiguri, Darjeeling. On March 15, 1946, the cases of the petitioner were transferred from the Income-tax Officer, Jalpaiguri, Darjeeling, to the Income-tax Officer, Central Circle I, Calcutta, and a companyple of months thereafter they were again transferred to the Income-tax Officer, Central Circle IV, Calcutta. On 8th June, 1946, there was a further transfer assigning the cases to the Income-tax Officer, Central Circle, Central Circle I, Calcutta, and on 27th July, 1946, orders were passed by the Commissioner of Income-tax, Central, Calcutta, under section 5 7A transferring the cases of the petitioner to the Income-tax Officer, Central Circle, IV, Calcutta. These are the orders which are companyplained against as unconstitutional and void invalidating the proceedings which were companytinued and subsequently instituted by the Income-tax Officer, Central Circle IV, Calcutta, against the petitioner on the score of the unconstitutionality of section 5 7A of the Act. It may be numbered, however, that these orders were all prior to the Constitution and having been made on 27th July, 1946, as aforesaid were followed up by companypleted assessment proceedings in respect of the said respective years and also certificate proceedings under section 46 2 of the Act. There were further order dated 15th December, 1947, and sometime in September, 1948, transferring the cases of the petitioner from the Income-tax Officer, Central Circle IV, Calcutta, to the Income-tax Officer, Central Circle I, Calcutta, and back from him to the Income-tax Officer, Central Circle IV, Calcutta. These, however, are number material for our purposes, the only order challenged being the order of the Commissioner of Income-tax Central, Calcutta. These, however, are number material for our purposes, the only order challenged being the order of the Commissioner of Income-tax Central, Calcutta dated 27th July, 1946, which was passed under section 5 7A of the Act. Petitions Nos. 225 of 1956 to 229 of 1956 these petitions may be classed as the Raichur group. They companycern the assessment of the respective assessment years 1950-51, 1951-52, 1952-53, 1953-54 and 1954-55. The petitioner in each of them is the same individual, one Kalloor Siddanna, who resides and carries on business in Raichur in the State of Hyderabad as companymission agent and distributor of agricultural products. Income-tax was first imposed in the Hyderabad State in 1946 by special Act of the Legislature and the petitioner was assessed under the Hyderabad Income-tax Act by the Additional Income-tax Officer, Raichur, for the assessment years 1948-49 and 1949-50. As from 1st April, 1950, the Indian Income-tax Act was applied to Hyderabad but the Additional Income-tax Officer, Raichur, companytinued to assess the petitioner. The cases in respect of the assessment years 1950-51, 1951-52 and 1952-53 were pending before that officer and proceedings were taken in companynection with the assessment for those years. On 21st December, 1953, however, the Commissioner of Income-tax, Hyderabad, issued a numberification under section 5 7A ordering that the case of the petitioner should be transferred from the Additional Income-tax Officer, Raichur, to the Income-tax Officer, Special Circle, Hyderabad. The latter officer companytinued the assessment proceedings and issued numberices under section 22 4 of the Act on 1st July, 1954, 2nd November, 1954, 30th November, 1954, 19th December, 1954, and 11th March, 1955, in respect of the said years of assessment. Assessments for the said years were made on 21st March, 1955, and on 24th April, 1955, the petitioner made an application under section 27 of the Act to reopen the assessment for the year 1950-51 as on default under section 23 4 of the Act. It appears, however, that shortly before 19th May, 1955, the Commissioner of Income-tax, Hyderabad, made another order under section 5 7A and section 64 5 b of the Act transferring all the cases of the petitioner to the main Income-tax Officer, Raichur. Curiously enough, the petitioner challenged both the orders, one dated 21st December, 1953, and the other made sometime in May, 1955, under section 5 7A of the Act and the proceedings companytinued and instituted by the respective officers thereunder as unconstitutional and void on the ground that section 5 7A was ultra vires the Constitution even though ultimately he was being assessed by the main Income-tax Officer, Raichur, under the latter order. This is the companymon question regard to the ultra vires character of section 5 7A of the Act which is raised in all these petitions, though in regard to each group there are several questions of fact involving the companysideration of the discriminatory character of the specific orders passed therein which we shall deal with hereafter in their appropriate places. Section 5 7A of the Act runs as under 5. 7A The Commissioner of Income-tax may transfer any case from one Income-tax Officer subordinate to him to another, and the Central Board to Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall number render necessary the reissue of any numberice already issued by the Income-tax Officer from whom the case is transferred. This sub-section was inserted by section 3 of the Indian Income-tax Amendment Act, 1940 XL of 1940 which was passed as a result of the decision of the Bombay High Court in Dayaldas Kushiram v. Commissioner of Income-tax, Central . By the Indian Income-tax Amendment Act, 1956 XXVI of 1956 , an explanation was added to section 5 7A in the terms following as a result of the decision of this Court in Bidi Supply Co. v. The Union of India and Others Explanation In this sub-section case in relation to any person whose name is specified in the order of transfer means all proceedings under this Act in respect of any year which may be pending on the date of the transfer, and includes all proceedings under this Act which may be companymenced after the date of the transfer in respect of any year. Section 5 7A together with the Explanation thus falls to be companysidered by us in these petitions. The argument on behalf of the petitioners is that section 64, subsections 1 and 2 , of the Act companyfer upon the assessee a valuable right and he is entitled to tell the taxing authorities that he shall number be called upon to attend at different places and thus upset is business. Section 5 7A invests the Commissioner of Income-tax and the Central Board of Revenue with naked and arbitrary power to transfer any case from any one Income-tax Officer to another without any limitation in point of time, a power which is unguided and uncontrolled and is discriminatory in its nature and it is open to the Commissioner of Income-tax or the Central Board of Revenue to pick out the case of one assessee from those of others in a like situation and transfer the same from one State to another or from one end of India to the other without specifying any object and without giving any reason, thus subjecting the particular assessee to discriminatory treatment whereas the other assessee similarly situated with him would companytinue to be assessed at the places where they reside or carry on business under section 64 1 and 2 of the Act. Section 64 5 which provides with retrospective effect that the provisions of section 64 1 and 2 shall number apply, inter alia, where an order as been made under section 5 7A was inserted simultaneously with section 5 7A and would number have the effect of depriving the assessee of the valuable right companyferred upon him under section 64 1 and 2 unless and until section 5 7A was intra vires but section 5 7A as stated above being discriminatory in its nature is ultra vires the Constitution and cannot save section 64 5 which is merely companysequential. The discrimination involved in section 5 7A is substantial in character and therefore infringes the fundamental right enshrined in article 14 of the Constitution. It also infringes article 19 1 g in so far as it imposes an unreasonable restriction on the fundamental right to carry on trade or business vide Himmatlal Harilal Mehta v. State of Madhya Pradesh. The very same question as regards the unconstitutionality of section 5 7A of the Act had companye up for decision before this Court in Bidi Supply Co. v. Union of India and Others. The case of the assessee there had been transferred by the Central Board of Revenue under section 5 7A of the Act from the Income-tax Officer, District III, Calcutta, to the Income-tax Officer, Special Circle, Ranchi. The order was an omnibus wholesale order of transfer expressed in general terms without any limitation as to time and was challenged as void on the ground that section 5 7A under which it had been passed was unconstitutional. This Court, by a majority judgment, after discussing the general principles underlying article 14, did number adjudicate upon that question, observing at page 724 We do number companysider it necessary, for the purpose of this case, to pause to companysider whether the companystitutionality of sub-section 7A of section 5 can be supported on the principle of any reasonable classification laid down by this Court or whether the Act lays down any principle for guiding or regulating the exercise of discretion by the Commissioner or Board of Revenue or whether the Sub-section companyfers an unguided and arbitrary power on those authorities to pick and choose an individual assessee and place that assessee at a disadvantage in companyparison with other assessees. It is enough for the purpose of this case to say that the omnibus order made in this case is number companytemplated pr sanctioned by sub-section 7A and that, therefore, the petitioner is still entitled to the benefit of the provisions of sub-section 1 and 2 of section 64. All assessees are entitled to the benefit of those provisions except where as particular case or cases of a particular assessee for a particular year or years is or are transferred under sub-section 7A of section 5, assuming that section to be valid and if a particular case or cases is or are transferred his right under section 64 still remains as regards his other case or cases. The majority judgment then proceeded to companysider the effect of such an omnibus order unlimited in point of time on the rights of the assessee and further observed in that companytext at pates 724-5 This order is calculated to inflict companysiderable inconvenience and harassment on the petitioner. Its books of account will have to be produced before the Income-tax Officer, Special Circle, Ranchi - a place hundreds of miles from Calcutta, which is its place of business. Its partners or principal officers will have to be away from the head office for a companysiderable period neglection the main business of the firm. There may be numbersuitable place where they can put up during that period. There will certainly be extra expenditure to be incurred by way of railway fare, freight and hotel expenses. Therefore the reality of the discrimination cannot be gainsaid. In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is number founded on any law and numberquestion of reasonable classification for purposes of legislation can arise. Here the State which includes its Income-tax Department has by an illegal order denied to the petitioner, as companypared with other bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately companyplain of an infraction of his fundamental right under article 14 of the Constitution. The question as to the companystitutionality of section 5 7A of the Act was thus left open and the decision turned merely on the companystruction of the impugned order. Learned companynsel for the petitioners, however, lays particular stress on the observations of Bose, J., in the minority judgment which he delivered in that case whereby he held that sections 5 7A and 64 5 b of the Act were themselves ultra vires article 14 of the Constitution and number merely the order of the Central Board of Revenue. The learned Judge referred to a passage from the judgment of Fazl Ali, J., in State of West Bengal v. Anwar Ali Sarkar and also pointed out the decision of this Court in Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and two Others and observed What is the position here ? There is numberhearing, numberreasons are recorded just peremptory orders transferring the case from one place to another without any warning and the power given by the Act is to transfer from one end of India to the other number is that power unused. We have before us in this Court a case pending in which a transfer has been ordered from Calcutta in West Bengal to Ambala in the Punjab. page 729 . If the Legislature itself had done here what the Central Board of Revenue has done and had passed an Act in the bald terms of the order made here transferring the case of this petitioner, picked out from others in a alike situation, from one state of another, or from one end of India to the other, without specifying any object and without giving any reason, it would, in my judgment, have been bad. I am unable to see how the position is bettered because the because the Central Board of Revenue has done this number Parliament. page 730 In my opinion, the power of transfer can only be companyferred if it is hedged round with reasonable restrictions, the absence or existence of which can in the last instance be determined by the Courts and the exercise of the power may be in companyformity with the rules of natural justice, that is to say, the parties affected must be heard when that is reasonably possible, and the reasons for the order must be reduced, however briefly, to writing so that men may know that the powers companyferred on these quasi judicial bodies are being justly and properly exercised. page 732 . The answer furnished on behalf of the State of this argument is four fold that the provision companytained in section 5 7A of the Act is a measure of administrative companyvenience enacted with a view to more companyveniently and effectively deal with the cases of the assessees where the Commissioner of Income-tax companysiders it necessary or desirable to transfer any case from one Income-tax Officer subordinate to him to another or the Central Board of Revenue similarly companysiders it necessary or transfer any case from any one Income-tax Officer to another. The real object with which section 5 7A was inserted by the Indian Income-tax Amendment Act, 1940 XL of 1940 , has been thus set out in the affidavit of Shri v. Gouri Shankar, Under-Secretary, Central Board of Revenue, dated November 19, 1956, which is the pattern of all the affidavits filed on behalf of the State in these petitions I say that the provisions of section 5 7A were inserted by the Income-tax Amendment Act, XL of 1940, with the object of minimising certain procedural difficulties. Before this amendment was passed there was numberspecific provision in the Act for transferring a case from one Income-tax Officer to another except by a long and circuitous companyrse even at the request of the assessee or for dealing with cases involving special features such as cases of assessee involving wide-spread activities and large ramifications or inter-related transactions, power to transfer cases was companyferred upon the Central Board of Revenue and the Commissioner of Income-tax as the case may be. I say that the provisions of section 5 7A are thus administrative in character, that the assessee whose case is thus transferred is number subjected to any discriminatory procedure in the matter of his assessment. The Income-tax Officer to whom his case is transferred deals with it under the same procedure which is laid down in the relevant provisions of the Act. The decision of the Income-tax Officer is subject to appeal before the Appellate Assistant Commissioner and the assessee has the further right to appeal to the Income-tax Appellate Tribunal and to approach to the High Court and ultimately the Supreme Court, as provided in the Act. All assessees, whether they are assessed by the Income-tax Officer of the area where they reside or carry on business or their cases are transferred from one Income-tax Officer to another, are subject to the same procedure and are entitled to the same rights and privileges in the matter of redress of their grievances, if any, and there is numberdiscrimination whatever between assessees and assessees that the right, if any, companyferred upon the assessee under section 64 1 and 2 of the Act is number an absolute right but is circumscribed by the exigencies of tax companylection and can be negatived as it has been in cases where the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, think it necessary or desirable to transfer his case from one Income-tax Officer to another under section 5 7A of the Act having regard to all the circumstances of the case. The argument of inconvenience is thus sought to be met in the same affidavit I further say that as a result of any transfer that may be made under the provisions of section 5 7A there is numberdiscriminatory treatment with regard to the procedure and that numberprivileges and rights which are given to the assessee exposed to any increased prejudice, punitary companysequences or differential treatment. I say that in cases where transfer under this section are made otherwise than on request from assessees, the companyvenience of the assessees is taken into companysideration by placing the case in the hands of an Income-tax Officer who is nearest to the area where it will be companyvenient for the assessee to attend. If on account of administrative exigencies this is number possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place companyvenient to him, the Income-tax Officer companyplies with the requests that the examination of accounts or evidence to be taken should be in a place companyvenient to him, the Income-tax Officer companyplies with the request of the assessee and holds the hearing at the place requested. Even if there be difference between assessees who reside or carry on business in a particular area by reason of such transfers the difference is number material. It is only a minor deviation from a general standard and does number amount to a denial of equal rights that the power which is thus vested is a discretionary power and is number necessarily discriminatory in its nature and that abuse of power is number to be easily assumed hwhere discretion is vested in such high officials of the state. Even if abuse of power may sometimes occurs, the validity of the provision cannot be companytested because of such apprehension. What may be struck down in such cases is number the provision itself but the discriminatory application thereof. The petitioners rejoin by relying upon the following passage from the judgment of Fazl Ali, J., in State of West Bengal v. Anwar Ali Sarkar, which was referred to by Bose, J., in his minority judgment in Bidi Supply Co. v. The Union of India, at page 281 It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular cases or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the act is misused. This kind of argument however does number appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is companyched in general terms and one cannot also challenge the act of the executive authority whose duty it is to administer the act, because that authority will say I am number to blame as I am acting under the Act. It is clear that if the argument were to be accepted article 14 companyld be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the insidious discrimination companyplained of is incorporated in the Act itself, it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The pivot of the whole argument of the petitioners is the provisions companytained in section 64 1 and 2 of the Act which prescribe the place of assessment. They are 64. 1 Where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of the area in which that place is situate or, where the business, profession or vocation is carried on in more places than one, by the Income-tax Officer of the area in which the principal place of his business, profession or vocation is situate. In all other cases, an assessee shall be assessed by the Income-tax Officer of the area in which he resides. These privations were companystrued by the Bombay High Court in Dayaldas Kushiram v. Commissioner of Income-tax, Central , and Another, and Beaumont, C.J., observed at page 146 In my opinion, section 64 was intended to ensure that as far as practicable an assessee should be assessed locally, and the area to which an Income-tax Officer is appointed must, so far as the exigencies of tax companylection allow, bear some reasonable relation to the place where the assessee carries on business or resides. Kania, J., as he then was went a step further and stated at page 149 A plain reading of the section shows that the same is imperative in terms. It also gives to the assessee a valuable right. He is entitled to tell the taxing authorities that he shall number be called upon to attend at different placers and thus upset his business. The learned Judges there appear to have treated the provisions of section 64 1 and 2 more as a question of right than as a matter of companyvenience only. If there were thus a right companyferred upon the assessee by the provisions of section 64 1 and 2 of the Act and that right companytinues to be enjoyed by all the assessees except the assessee whose case is transferred under section 5 7A of the Act to another Income-tax Officer outside the area where the resides or carries on business, the assessee can urge that, as companypared with those other assesses, he is discriminated against and is subjected to inconvenience and harassment. It is, therefore, necessary to companysider whether any such right is companyferred upon the assessee by section 64 1 and 2 of the Act. Prima facie it would appear that an assessee is entitled under those provisions to be assessed by the Income-tax Officer of the particular area where he resides or carries on business. Even where a question arises as to the places of assessment such question is under section 64 3 to be determined by the Commissioner of the Commissioners companycerned if the question is between places in more States than one or by the Central Board of Revenue if the latter are number in agreement and the assessee is given an opportunity of representing his views before any such question is determined. This provision also goes to show that the companyvenience of the assessee is the main companysideration in determining the place of assessment. Even so the exigencies of tax companylection have got to be companysidered and the primary object of the Act, viz., the assessment of income-tax, has got to be achieved. The hierarchy of Income-tax authorities which is set up under Chapter II of the Act has been so set up with a view to assess the proper income-tax payable by the assessee and whether the one or the other of the authorities will proceed to assess a particular assessee has got to be determined number only having regard to the companyvenience of the assessee but also he exigencies of tax companylection. In order to assess the tax payable by an assessee more companyveniently and efficiently it may be necessary to have him assessed by an Income-tax Officer of an area other than the one in which he resides or carries on business. It may be that the nature and volume of his business or that he is so companynected with various other individuals or organizations in the way of his earning his income as to render such extra-territorial investigation necessary before he may be properly assessed. these are but instances of the various situations which may arise wherein it may be thought necessary by the Income-tax Officer of the area in which he resides or carries on business to another Income-tax Officer, whether functioning in the same state pr beyond it. This aspect of the question was emphasized by Beaumont, C.J., in Dayaldas Kushiram v. Commissioner of Income-tax, Central , at page 146 when he used the expression as far as practicable in companynection with the assessees right to be assessed locally and the expression so far as exigencies of tax companylection allow in companynection with the appointment of the Income-tax Officer to assess the tax payable by the particular assessee. In the later case of Dayaldas Kushhiram v. Commissioner of Income-tax, Central , Beaumont, C.J., expressed himself as follows The Income-tax Act does number determine the place of assessment. What it does is to determine the officer who is to have power to assess and in some cases it does so by reference to locality but I apprehend that an appeal would be number against an order of the Commissioner as to the place of assessment, but against an order of the assessment of the Income-tax Officer, This aspect was further emphasized by the Federal Court in Wallace Brothers Co. Ltd. v. Commissioner of Income-tax, Bombay Sind Baluchistan, where Spens, C.J., observed Clause 3 of section 64 provides that any question as to the place of assessment shall be determined by the Commissioner or by the Central Board of Revenue. The third proviso the clause enacts that it the place of assessment is called in question by the assessee, the income-tax Officer shall, if number satisfied with the companyrectness of the claim, refer the matter for determination under this sub-section before assessment is made. These provisions clearly indicate that the matter is more one of administrative companyvenience than of jurisdiction and that in any event it is number one for adjudication by the Court. It may be numbered, however, that in the passage at page 719 of the majority judgment in Bidi Supply Co. v. The Union of India and others, this Court regarded the benefit companyferred on the assessee by these provisions of section 64 1 and 2 of the Act as a right to be assessed by the Income-tax Officer of the particular area where he resides or carries on his business is companyferred on the assessee. This right, however, according to the authorities above referred to, is hedged in with the limitation that it has to yield to the exigencies of tax companylection. The position, therefore, is that the determination of the question whether a particular Income-tax Officer should assess the case of the assessee depends on 1 the companyvenience of the assessee as posited in section 64 1 and 2 of the Act, and 2 the exigencies of tax companylection and it would be open to the Commissioner of Income-tax and Central Board of Revenue who are the highest amongst the Income-tax Authorities under the Act to transfer to case of a particular assessee from the Income-tax Officer of the area within which he resides or carries on business to any other Income-tax Officer if the exigencies of tax companylection warrant the same. It is further to be numbered that the infringement of such a right by the order of transfer under section 5 7A of the Act is number a material infringement. It is only a deviation of a minor character from the general standard and does number necessarily involve a denial of equal rights for the simple reason that even after such transfer the case is dealt with under the numbermal procedure which is prescribed in the Act. The production and investigation of the books of account, the enquiries to be made by the Income-tax Officer are the same in a transferred case as in others which remain with the Income-tax Officer of the area in which the other assessees reside or carry on business. There is thus numberdifferential treatment and numberscope for the argument that the particular assessee is discriminated against with reference to others similarly situated. It was observed by this Court in M. K. Gopalan v. State of Madhya Pradesh In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkars case. That decision, however, applies only to a case where on the allotment of an individual case to the special companyrt authorised to companyduct the trial by a procedure substantially different from the numbermal procedure and prejudicing them thereby. In the present case, the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the numbermal procedure, and numberdiscrimination of the kind companytemplated by the decision in Anwar Ali Sarkars case, and the other cases following it, arises here. A law vesting discriminatory as such, and is therefore number hit by article 14 of the Constitution. There is, therefore, numbersubstance in this companytention. To a similar effect were the observations of Mukherjea, J., as he then was in state of West Bengal v. Anwar Ali Sarkar, at page 325 I agree with the Attorney-General that if the differences are number material, there may number be any discrimination in the proper sense of the word and minor deviations from the general standard might number amount to denial of equal rights. It is pointed out that as section 64 5 stands at present, the provisions of section 64 1 and 2 do number apply and are deemed never at any time to have applied to an assessee where, in companysequence of any transfer made under section 5 7A , a particular Income-tax Officer has been charged with the function of assessing that assessee. Section 64 5 was incorporated by the Income-tax Law Amendment Act, 1940 XL of 1940 simultaneously with section 5 7A . It is, therefore, urged that an assessee whose case has been thus transferred has numberright under section 64 1 and 2 and those assessees alone who do number companye within the purview of section 64 5 can have the benefit of section 64 1 and 2 . This argument, however, ignores the fact that section 5 7A is the very basis of the enactment of the relevant provision in Section 64 5 and if section 5 7A cannot stand by virtue job its being discriminatory in character, the relevant portion of section 64 5 also must fall with it. It is then companytented that section 5 7A is in itself discriminatory and violative of the fundamental right enshrined in article 14. The power which is vested in the Commissioner of Income-tax and the Central Board of Revenue is a naked and arbitrary power unguided and uncontrolled by any rules. No rules have been framed and numberdirections given which would regulate or guide their discretion or on the basis of which such transfers can be made and the whole matter is left to the unrestrained will of the Commissioner of Income-tax or the Central Board of Revenue without there being anything which companyld ensure a proper execution of the power or operate as a check upon the injustice that might result from the improper execution of the same. To use the words of Mr. Justice Matthews in the case of Yick Wo v. Hopkins when we remember that this action or number-action may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of companycealment and difficult to be detected and exposed, it becomes unnecessary to suggest or companyment upon the injustice capable of being brought under companyer of such a power, for that becomes apparent to every one who gives to the subject a moments companysideration. In other words, it is number a question of an unconstitutional administration of a statute otherwise valid on its fact but here the unconstitutionality us writ large on the fact of the statue itself per Das, J., as he then was, in The State of West Bengal v. Anwar Ali Sarkar, at p. 346 . It has to be remembered that the purpose of the Act is to levy income-tax, assess and companylect the same. The preamble of the Act does number say so in terms it being an Act to companysolidate and amend the law relating to income-tax and super tax but that is the purpose of the Act as disclosed in the preamble of the first Indian Income-tax Act of 1886 Act II of 1886 . It follows, therefore, that all the provisions companytained in the Act have been designed with the object of achieving that purpose. There is in the first instance, the charge of income-tax. Then we find set up the various authorities in the hierarchy who are entrusted with the function of assessing the income-tax, the Central Board of Revenue being at the apex. There is also an Appellate Tribunal which is established for hearing appeals against the decisions of the Appellate Assistant Commissioners. The follow the provisions in regard to taxable income, mode of assessment and companynate provisions. The Income-tax Officers are invested with the duty of assessing the income-tax of the assessees in the first instance. The Assistant Commissioners of Income-tax Officers and the Income-tax Appellate Tribunal is the final appellate authority barring of companyrse references under section 66 1 of the Act to the High Court on questions of law. The Commissioners of Income-tax and the Central Board of Revenue are mainly administrative authorities over the Income-tax Officers and the Assistant Commissioners of Income-tax and they are to distribute and companytrol the work to be done by these authorities. All officers and persons employed in the execution of the Act are to observe and follow the orders, instructions and directions of the Central Board of Revenue which is the highest authority in the hierarchy and, even thought numbermally in accordance with the provisions of section 64 1 and 2 the work of assessment is to be done by the Income-tax Officers of the area within which the assessees reside or carry on business, power is given by section 5 7A to the Commissioner of Income-tax to transfer any case from on Income-tax Officer subordinate to him to another and to the Central Board of Revenue to transfer any case from any one Income-tax Officer to another. This is the administrative machinery which is set up for assessing the incomes of the assessees which are chargeable to income-tax. There is, therefore, companysiderable force in the companytention which has been urged on behalf of the State that section 5 7A is a provision for administrative companyvenience. Nevertheless this power which is given to the Commissioner of Income-tax and the Central Board of Revenue has to be exercised in a manner which is number discriminatory. No rules or directions having been laid down in regard to the exercise of that power in particular cases, the appropriate authority has to determine what are the proper cases in which such power should be exercised having regard to the object of the Act and the ends to be achieved. The cases of the assessees various types and numberone case is similar to another. There are companyplications introduced by the very nature of the business which is carried in by the assessees and they may, be in particular cases, such widespread activities and large ramifications or inter-related transactions as might require for the companyvenient and efficient assessment of income-tax the transfer of such cases from on Income-tax Officer to another. In such cases the Commissioner of Income-tax of the Central Board of Revenue, as the case may be, has to exercise its discretion with due regard to the exigencies of tax companylection. Even thought there may be a companymon attribute between the assessee whose case is thus transferred and the assessees who companytinue to be assessed by the Income-tax Officer of the area within which they reside or carry on business, the other attributes would number be companymon. One assessee may have such widespread activities and ramifications as would require his case to be transferred from the Income-tax Officer of the particular area to an Income-tax Officer of another area in the same State or in another State, which may be called X. Another assessee, though belonging to a similar category may be more companyveniently and efficiently assessed in another area whether situated within the State or without it called Y. The companysiderations which will weigh with the Commissioner of Income-tax of the Central Board of Revenue in transferring the cases such assessees either to the area X or the area Y will depend upon the particular circumstances of each case and numberhard and fast rule can be laid down for determining whether the particular case should be transferred at all or to an Income-tax Officer of a particular ares. Such discretion would necessarily have to be vested in the authority companycerned and merely because the case of a particular assessee is transferred from the Income-tax Officer of an area within which he resides or carries on business to another Income-tax Officer, whether within or without the State, will number by itself be sufficient to characterize the exercise of the discretion as discriminatory. Even if there is a possibility of discriminatory treatment of persons fall in within the same group or category, such possibility can necessarily invalidate the piece of legislation. It may also be remembered that this power is vested number in minor officials but in top-ranking authorities like the Commissioner of Income-tax and the Central Board of Revenue who act on the information supplied to them by the Income-tax Officers companycerned. This power is discretionary and number necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. vide Matajog Dobey v. H. S. Bhari . There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law vide People of the State of New York v. John E. Van De Carr, etc. . It has also observed by this Court in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another with reference to the possibility of discrimination between assessees in the matter of the reference of their cases to the Income-tax Investigation Commission that It is to be presumed, unless the companytrary were shown, that the administration of a particular law would be done number with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would number be discriminatory. This presumption, however, cannot be stretched too far and cannot be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or companyporations to hostile and discriminatory treatment vide Gulf, Colorado, etc. v. W. H. Ellis . There may be cases where improper execution of power will result in injustice to the parties. As has been observed, however, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are number without ample remedies under the law vide Dinabandu Sahu v. Jadumoni Mangaraj Others . What will be struck down in such cases will number be the provision which invests the authorities with such power but the abuse of the power itself. It is pointed that it will be next to impossible for the assessee to challenge a particular order made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, as discriminatory because the reasons which actuated the authority in making the order will be known to itself number being recorded in the body of the order itself or companymunicated to the assessee. The burden moreover will be on the assessee to demonstrate that the order of transfer in an abuse of power vested in the authority companycerned. This apprehension is, however, ill-founded. Though the burden is number by way of proof to the hilt. There are instances where in the case of an accused person abutting a presumption or proving an exception which will exonerate him from the liability for the offence with which he has been charged, the burden is held to be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish vide Rex v. Carr-Briant , or in the case of a detenue under the Preventive Detention Act seeking to make out a case of want of bona fides in the detaining authority, the burden of proof is held number to be one which requires proof to the hilt but such as will render the absence of bona fides reasonably probable vide Ratanlal Gupta and Another v. District Magistrate of Ganjam also Brundaban Chandra Dhir Narendra v. State of Orissa Revenue Department and Others. If, in a particular case, the assessee seeks to impeach the order of transfer as an abuse of power pointing our circumstances which prima facie and without anything more would make out the exercise of the power discriminatory qua him, it will be incumbent on the authority to explain the circumstances under which the order has been made. The companyrt will, in that event, scrutinize these circumstances having particular regard to the object sought to be achieved by the enactment of section 5 7A of the Act as set our in para. 4 of the affidavit of Shri v. Gouri Shankar, Under Secretary, Central Board of Revenue, quoted above, and companye to its own companyclusion as to the bona fides to the order and if it is number satisfies that the order was made by the authorities in bona fide exercise of the power vested in them under section 5 7A of the Act, it will certainly quash the same. The standard of satisfaction which would have to be attained will necessarily depend on the circumstances of each case and the Court will arrive at the companyclusion one way or the other having regard to all the circumstances of the case disclosed in the record. The companyrt will certainly number be powerless to strike down the abuse of power inappropriate cases and the assessee will number be without redress. The observations of Fazl Ali, J., in State of West Bengal v. Anwar Ali Sarkar, at pp. 309-310 that the authority will say I am number to blame as I am acting under the Act will number necessarily save the order from being challenged because even thought the authority purported to act under the Act its action will be subject to scrutiny in the manner indicated above and will be liable to be set aside if it was found to be mala fide or discriminatory qua the assessee. Particular stress is laid on behalf of the petitioners on the observations at page 724 of the majority judgment in Bidi Supply Co. v. Union of India and Others, which in the companytext of the omnibus wholesale order in question emphasized the substantial discrimination to which the assessee there had been subjected as companypared with other bidi merchants who were similar situated. The inconvenience and harassment to which the assessee was thus put were companysidered to be violative of article 14 of the Constitution and it is urged that section 5 7A is unconstitutional in so far as it is open to the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to make an order of transfer subjecting the assessee to such inconvenience and harassment at their sweet will and pleasure. This argument of inconvenience, however, is number companyclusive. There is numberfundamental right in an assessee to be assessed in a particular area or locality. Even companysidered in the companytext of section 64 1 and 2 of the Act this right which is companyferred upon the assessee to be assessed in a particular area or locality is number an absolute right but in subject to the exigencies of tax companylection. The difference, if any, created in the position of the assessee qua others who companytinue to be assessed by the Income-tax Officer to the area in which they reside or carry on business is number a material difference but a minor deviation from the general standard and would, therefore, number amount to the denial of equal rights per Mukherjea, J., as he then was, in the State of West Bengal v. Anwar Alki Sarkar, at page 325 . There is also the further fact to be borne in mind that this inconvenience to the assessee is sought to be minimised by the authority companycerned transferring the case of such assessee to the Income-tax Officer who is nearest to the area where it would be companyvenient for the assessee to attend and it, on account of administrative exigencies this is number possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place companyvenient to him, by Income-tax Officer companyplying with the request of the assessee and holding the hearing at the place requested. We are bound to take this statement companytained in para. 5 of the affidavit of Shri v. Gouri Shankar at it fact value and if this done as it should be, the assessee will number be put to any inconvenience or harassment and the proper balance between the rights of the subject and public interest will be preserved. It is, therefore, clear that the power which is vested in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under section 5 7A of the Act is number a naked and arbitrary power unfettered, unguided or uncontrolled so as to enable the authority to pick and choose one assessee out to those similarly circumstanced thus subjecting him to discriminatory treatment as companypared with others who fall within the same category. The power is guided and companytrolled by the purpose which is to be achieved by the Act itself, viz., the charge of income-tax, the assessment and companylection thereof, and is to be exercised for the more companyvenient and efficient companylection of the tax. A wide discrimination is given to the authorities companycerned, for the achievement of that purpose, in the matter of the transfer of the cases of the assessees from one Income-tax Officer to another and it cannot be urged that such power which is vested in the authorities is discriminatory in its nature. There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. If the statute deals with a right which is number fundamental in character the statute can take it away but a fundamental right the statute cannot take away. Where, for example, a discretion is given in the matter of issuing licences fir carrying on trade, profession or business or where restrictions are imposed on freedom of speech, etc., by the imposition of censorship, the discretion must be companytrolled by clear rules so as to companye within the category of reasonable restrictions. Discretion of that nature must be differentiated from discretion in respect of matters number involving fundamental rights such as transfers of cases. An inconvenience resulting from a change of place or venue occurs when any case is transferred from one place to another but it is number open to a party to say that a fundamental right has been infringed by such transfer. In other words, the discretion vested has to be looked at from two points of view, viz., 1 does it admit of the possibility of any real and substantial discrimination, and 2 does it impinge on a fundamental right guaranteed by the Constitution ? Article 14 can be invoked only when both these companyditions are satisfied. Applying this test, it is clear that the discretion which is vested in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under section 5 7A is number at all discriminatory. It follows, therefore, that section 5 7A of the Act is number violative of article 14 of the Constitution and also does number impose any unreasonable restriction of the fundamental right to carry on trade or business enshrined in article 19 1 g of the Constitution. If there is any abuse of power it can be remedied by appropriate action either under article 226 or under article 32 of the Constitution and what can be struck down is number the provision companytained in section 5 7A of the Act but the order passed thereunder which may be mala fide or violative of these fundamental rights. This challenge of the vires of section 5 7A of the Act, therefore, fails. We may, however, before we leave this topic observe that it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under section 5 7A of the Act is made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, and numberice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing. It is significant that when any question arises under section 64 as to the place of assessment and is determined by the Commissioner or Commissioners or by the Central Board of Revenue, as the case may be, the assessee is given an opportunity under section 64 3 or representing his views before any such question is determined. If an opportunity is given to the assessee in such case, it is all the more surprising to find that, when an order of transfer under section 5 7A is made transferring the case of the assessee from one Income-tax Officer to another irrespective of the area or locality where he resides or caries on business, he should number be given such an opportunity. There is numberpresumption against the bona fides or the honesty of an assessee and numbermally the Income-tax authorities would number be justified in refusing to an assessee a reasonable opportunity of representing his views when any order to the prejudice of the numbermal procedure laid down in section 64 1 and 2 of the Act is sought to be made against him, be it a transfer from one Income-tax Officer to another within the state or from an Income-tax Officer within the State to an Income-tax Officer without it, except of companyrse where the very object of the transfer would be frustrated if numberice was given to the party affected. If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to transfer his case under section 5 7A of the Act and it will also help the Court in determining the bona fides of the order as passed if and when the same is challenged in companyrt as mala fide discriminatory. It is to be hoped that the Income-tax authorities will observe the above procedure wherever feasible. The next point of attack is that the orders which were made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, in these petitions are omnibus wholesale orders of transfer companying within the mischief of Bidi Supply Co. v. Union of India and Others and are, therefore, hit by the majority judgment in that case. The answer of the State is that the orders are valid by virtue of the explanation to section 5 7A which was added by the Indian Income-tax Amendment Act, 1956 XXVI of 1956 . It will be remembered that the explanation was added to section 5 7A in order to get over the situation which was created by the majority judgment in that case and all the proceedings against a particular assessee whether they were in respect of the same year or the previous years which were pending before the Income-tax Officer were sought to be companyprised in the order of transfer as also all proceeding under the Act which may be companymenced after the date of transfer in respect of any year whether it be the year of transfer to any year previous or subsequent thereto. The main structure of section 5 7A was, however, maintained and the explanation was added thereto in order to expand the companynotation of the word case which was used in section 5 7A . The manner in which this result was brought about is subject to criticism that the word case was thus really equated with the word file and when a case of a particular assessee was transferred under section 5 7A it was meant that his whole file would be transferred from one Income-tax Officer to another. This inartistic mode appears, however, to be adopted by the supposed necessity of maintaining section 5 7A in the form in which it stood but what we have got to see is whether the desired result has been achieved by adding the explanation in the manner in which it was done. Reading section 5 7A and the explanation thereto, it is clear that when any case of a particular assessee which is pending before an Income-tax Officer is transferred from that Officer whether within the State or without it, all proceedings which are pending against him under the Act in respect of the same year as also previous years are meant to be transferred simultaneously and all proceedings under the Act which may be companymenced after the date of such transfer in respect of any year whatever are also included therein so that the Income-tax Officer to whom such case is transferred would be in a position to companytinue the pending proceedings and also institute further proceedings against the provision in regard to the issue of numberices companytained in the main body of section 5 7A would apply and it would number be necessary to re-issue and numberice already issued by the Income-tax Officer from whom the case in transferred. This provision applies to pending proceedings which have been transferred leaving unaffected the further proceedings which may be companymenced against that assessee after the date of the transfer where fresh numberices would have to be issued. It is, however, companytended that the case of the assessee which have been already closed in the previous years cannot be re-opened by the Income-tax Officer to whom the case of the assessee is thus transferred and the words after the date of transfer in respect of any year occurring at the end of the explanation are sought to be companystrued to mean after the date of the transfer in respect of the year of transfer thus rendering it incompetent to the Income-tax Officer to whom the case is transferred to institute further proceedings in respect of cases of the assessee which have been already closed before the date of transfer. This companytentions, is in our opinion, unsound. The words used are in respect of any year and number in respect of the year. Moreover they are to be read with the preceding words may be companymenced and number with the words after the date of transfer. A proper reading of the explanation will be that the inclusive part thereof refers to all proceedings under the Act which may be companymenced in respect of any year after the date of the transfer. The date of the transfer has relation only to the particular year in which the case of the assessee is thus transferred and to attach the words in respect of any year to the words after the date of transfer do number make any sense. The words in respect of any year appropriately go with the words which may be companymenced and read in this juxtaposition render the inclusive part of the explanation susceptible of a proper meaning. The language of the explanation susceptible of a proper meaning. The language of the explanation read in the manner suggested above is thus sufficient to dispel this companytention of the petitioners. It follows, therefore, that the omnibus wholesale orders of transfer made against the petitioners by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, are saved by the explanation to section 5 7A and are number unconstitutional and void. It remains number to companysider whether the individual orders against the petitioners the discriminatory in fact or are mala fide and an abuse of the power vested in the Commissioner of Income-tax or Central Board of Revenue, as the case may be, under section 5 7A of the Act. Petitions Nos. 211 to 215 of 1956, i.e., the Sriram Jhabarmull group may be dealt with in the first instance as they have a peculiar characteristic of their won. The orders companyplained against in these petitions were all made by the Commissioner of Income-tax, Central, Calcutta, on July 27, 1946, and further proceedings were entertained against the petitioners by the Income-tax Officer, Central Circle IV, Calcutta, immediately thereafter. All these proceedings culminated in assessment order s and certificate proceedings under section 46 2 of the Act were also taken by the authorities against the petitioners for recovery of the tax so assesses before the advent of the Constitution. The question, therefore, arises whether these orders of transfer can be challenged by the petitioners as unconstitutional and avoid. It is settled that article 13 of the Constitution has numberretrospective effect and if, therefore, any action was taken before the companymencement of the Constitution in pursuance of the processions of any law which was a valid law at the time when such action was take, such action cannot be challenged and the law under which such action was taken cannot be questioned as unconstitutional and void on the score of its infringing the fundamental rights enshrined Pare III of the Constitution see Keshavan Madhavan Menon v. State of Bombay . The following observations of Das, J., as he then was at page 236 of that case may be appropriately referred to in this companytext - As already explained, article 13 1 only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding affect holy with respect to the exercise of fundamental rights on and after the date of the companymencement of the Constitution. It has numberretrospective effect and if, therefore, and act was done before the companymencement of an companystitution in companytravention of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, in inconsistent law is number wiped out so far as the past act is companycerned, for to say that it is, will be to give the law retrospective effect So far as the past acts are companycerned the law exists, numberwithstanding that it does number exist with respect to the future exercise of fundamental rights. See also Syed Qasim Razvi v. State of Hyderabad Others and Laxmanappa Hanumanthappa Jamkhandi v. Union of India Others . It is clear, therefore, that the petitioners are number entitled to companyplain against the said orders of transfer dated July 27, 1946. Petitions Nos. 225 to 229 of 1956, i.e., the Raichur group, and Petitions Nos. 86, 87, 88, 111, 112 and 158 of 1956, i.e., the Amritsar group, all belong to the same category. In the first group, there was an order of transfer on December 21, 1953, passed by the Commissioner of Income-tax, Hyderabad, transferring the cases of the petitioner from the Additional Income-tax Officer, Raichur, to the Income-tax Officer, Special Circle, Hyderabad. There was, however, an order passed by the Commissioner shortly before May 19, 1955, transferring the cases of the petitioner from the Income-tax Officer, Special Circle, Hyderabad, to the main Income-tax Officer, Raichur. The petitioner thus reverted to the Income-tax Officer, Raichur, and it passes ones imagination what possible argument he can urge on the score on inconvenience and harassment. The hole attitude of the petitioner is motivated by an intention to delay the payment of income-tax legitimately due by him to the Revenue trying to take advantage of a mere technicality. In the second group, there were orders passes by the Commissioner of Income-tax, transferring the cases of the petitioners from the Income-tax Officer, A Ward, Amritsar, or the Income-tax Officer, F Ward, Amritsar, to the Income-tax Officer, Special Circle, Amritsar. Both these offices were situated in the same building and under the same roof. The argument of inconvenience and harassment can, under these circumstances, by hardly advanced by them There is moreover another feature which is companymon to both the groups and it is that numbere of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers to whom there cases had been transferred. It was only after our decision in Bidi Supply Co. v. Union of India Others was pronounced on March 20, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on April 20, 1956, and the Raichur group on November 5, 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly number entitled to invoke the jurisdiction of this Court under article 32. It is well settled that such companyduct of the petitioners would desentitle them to any relief at the hands of this Court vide Halsburys Laws of England, Vol. II, 3rd Ed., page 140, para. 265 Rex v. Tabrum, Ex parte Dash O. A. O. K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras, and chief Judge Court of Small Causes, Madras . The orders of transfer made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, against the three groups of petitioners, viz., Sriram Jhabarmull group, the Raichur group and the Amritsar group, cannot, therefore, be challenged by them as unconstitutional and void. This leaves two sets of petitioners, the petitioners in Petitions Nos. 97 97A of 1956 and the petitioners in Petitions Nos. 44 of 1956 and 85 of 1956. Petitions Nos. 97 and 97A of 1956 The petitioners are oil mill owners, merchants and companymission agents, carrying on business at Sahibganj in the district of Santhal Parganas and have a branch at 97, Lower Chitpur Road, Calcutta. The cases were referred to the Income-tax Investigation Commission as they were believed to have evaded payment of tax in a substantial amount. They were alleged to have companycealed income exceeding Rs. 8 lakhs and indulged in business activities spread over a wide area resulting in large profits number disclosed in the books of account or in the various returns filed by them. After the judgment of this Court in Suraj Mull Mohtas case, about 320 cases referred to the income-tax Investigation Commission Act XXX of 1947 were affected and had to be reopened under section 34 1A of the Income-tax Act. To dispose of these cases, Since they involved many back years cases quickly and promptly, special circles without reference to area were, created at Bombay and Calcutta, because the existing circles whose hands were full companyld number take up this extra work. These 320 cases were distributed between these circles on the basis of the geographical area to which these assessees belonged. The petitioners belonged to Bihar and had a branch at Calcutta and their cases were, therefore, allotted to one of the Central Circles at Calcutta. Later on in October, 1954, this Court struck down section 5 1 of the Taxation on Income Investigation Commission Act XXX of 1947 in the Meenakshi Mills case and as a result thereof cases referred under that section and pending with the Income-tax Investigation Commission on July 17, 1954, companyld number be proceeded with under the provisions of that Act. These cases numbering about 470 had to be reopened under section 34 1A of the Income-tax Act. The Government thought that as in the earlier lot of cases, it would help speedier disposal of the cases, if they were allotted to Income-tax Officers appointed without reference to area to deal with the same. In addition to the circles already created in Bombay and Calcutta, five more circles at Calcutta and four more circles in Bombay and nine more circles at important centers such as Kanpur, Ahmedabad, Madras and Delhi were set up to deal with all these cases. As a result of the influx of these cases, it was found that the 9 circles at Calcutta had about 280 cases of assessees belonging to Calcutta itself to dispose of and therefore cases number belonging to that area had to be taken out and assigned to one of the newly created circles, where the work load was low. It was found then that Central Circle VI had a lower work load companypared to other circles and therefore the cases of the petitioners were transferred to the Income-tax Officer, Central Circle VI, Delhi. Having regard to these circumstances which are disclosed in the affidavits of Shri v. Gouri Shankar, Under Secretary, Central Board of Revenue, dated November 19, 1956, and December 3, 1956, it is clear that the transfer of the cases of the petitions, firstly from the Income-tax Officer, Special Circle, Patna, to the Income-tax Officer, Central Circle XI, Calcutta, and next, from the latter officer to the Income-tax Officer, Central Circle VI, Delhi, were made as a matter of administrative companyvenience only. It further appears from the said affidavits that the examination of accounts and the evidence was dome at the paces desired by the assessees in order to suit their companyvenience and the Income-tax Officers were instructed accordingly. As a matter of fact the Income-tax Officer, Central Circle VI, Delhi, went to Sahibganj and examined the accounts there in the case of the petitioner No. 1 and when the assessee voluntarily requested the Income-tax Officer to have the examination done at Delhi the assessee had them companye to Delhi for some other work for his the Income-tax Officer promptly posted the case and examined the accounts. If these were the circumstances under which the cases of the petitioners were transferred from Patna to Calcutta and from Calcutta to Delhi and the petitioners were afforded all companyveniences in the matter of the examination of their accounts and evidence, there is numberbasis for the charge that the orders of transfer made against these petitioners were in any manner whatever discriminatory. Petitions Nos. 44 of 1956 and 85 of 1956 The petitioner in Petition No. 44 of 1956 is Shri A. L. Sud who originally belonged to Hoshiarpur District in Punjab and since 1948 resides and has his office in Calcutta. He is the son on one Shri Bhagwan Das Sud and is a member of the Hindu undivided family styled Messrs. Bhagwan Sud Sons with Shri Bhagwan Das Sud as the karta thereof. This Hindu undivided family has been carrying on business at Hoshiarpur and at various other places like Bareilly, Calcutta and Bombay. The petitioner has been carrying on business both as the member of the Hindu undivided family and also in his individual capacity since 1946. The said joint family of Bhagwan Das Sud Sons alleged to have evaded income-tax to a large extent and had inter-related transactions in respect of their dealings, the petitioner being a companyparcener of the said joint family. It was, therefore, companysidered necessary in order to have a proper assessment of the petitioners income that his case also should be dealt with by the Income-tax Officer assessing the joint family and the petitioner was informed that, in the matter of hearing, he would be put to least inconvenience. These were the circumstances under which his case was transferred from the Income-tax Officer, Survey Circle, Calcutta, to the Income-tax Officer, Special Circle, Ambala, by an order of the Central Board of Revenue dated June 29, 1955. The case of Messrs. Bhagwan Das Sud Sons, petitioners in Petition No. 85 of 1956 had already been transferred by the Commissioner of Income-tax from the Income-tax Officer, Hoshiarpur, to the Income-tax Officer, Special Circle, Ambala, by an order under section 5 7A of the Act dated October 20, 1953. The petitioners had their office at Hoshiarpur in Punjab but their activities were scattered in various parts of India some of them being in Assam, Bombay, Bareilly, Calcutta and Kanpur in respect of the companytracts they undertook with the Government and other parties. They were alleged to have companycealed income assessable to income-tax exceeding Rs. 30 lakhs and it was thought necessary to make proper investigation of their widespread activities resulting in extensive evasion of income-tax. These were the circumstances under which their case was transferred to the Income-tax Officer, Special Circle, Ambala, As above. That officer, however, agreed to examine the accounts and evidence at Hoshiarpur it self to suit the companyvenience of the petitioners but the petitioners did number agree on the ground that their advocate was to companye from Delhi and therefore Ambala would suit them as well. The cases of both the petitioners thus came to be transferred from the respective Income-tax Officers who used to assess them at Calcutta and Hoshiarpur respectively to the Income-tax Officer, Special Circle, Ambala, and all companyveniences were afforded to them in the matter of the examination of their accounts and evidence. The argument of discrimination and inconvenience and harassment thus loses all its force and the orders of transfer made against them cannot be challenged as in any way discriminatory. It may be numbered that in the last-mentioned four petitions, viz., Petitions Nos. 97 and 97-A of 1956 and Petitions Nos. 44 of 1956 and 85 of 1956, the Central Board of Revenue or the Commissioner of Income-tax, as the case may be, instructed the Income-tax Officers companycerned to minimise the inconvenience caused to the assessees and even proceed to their respective residences or places of business in order to examine the accounts and evidence. In spite of the denials of the assessees in the affidavits which they filed in rejoinder, we presume that such facilities will companytinue to be afforded to them in the future and the inconvenience had harassment which would otherwise be caused to them will be avoided. A humane and companysiderate administration of the relevant provisions of the Income-tax Act would go a long way in allaying the apprehensions of the assessees and if that is done in the true spirit, number assessee s and if that is done in the true spirit, numberassessee will be in a position to charge the Revenue with administering the provisions of the Act with an evil eye and unequal hand. We have, therefore, companye to the companyclusion that there is numbersubstance in these petitions and they should be dismissed with companyts. There will be, however, one set of companyts between respondents in each of the petitions and one set of companyts in each group of these petitions, viz., 1 Petitions Nos. 97 and 97-A of 1956, 2 Petitions Nos. 44 of 1956 and 85 of 1956, 3 Petitions Nos. 86 of 1956, 87 of 1956, 88 of 1956, 111 of 1956, 112 of 1956 and 158 of 1956, 4 Petitions Nos. 211 of 215 of 1956, and 5 Petitions Nos.

Case appeal was rejected by the Supreme Court

ORIGINAL. JURISDICTION Petitions Nos. 97, 97A, 44, 86 to 88, 111, 112, 85, 158, 211 to 251 and 225 to 229 of 1956. Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights C. Chatterji A. K. Sen, B. P. Maheshwari and Tarachan Brijmohan Lal, for the petitioners in Petitions Nos. 97 and 97A of 1956. C. Chatterji and V. S. Sawhney, for the petitioners in Petitions Nos. 44., 86 to 88, Ill and 112 of 1956. C. Chatterji and D. N. Mukherji, for the petitioners in Petition No. 85 of 1956. Purshottam Tirukumdas and 0. P. Lal, for the petitioners in Petitions Nos. 211 to 215 of 1956. C. Isaacs and K. R. Chaudhuri. for the petitioners in Petitions Nos. 225 to 229 of 1956. Bhagirth Das and M. L. Kapur, for the petitioner in petition No. 158 of 1956. K. Daphtary, Solicitor-General of India, G. N. Joshi, Porpus Mehta and R. H. Dhebar, for the respondents Union, of India, the Central Board of Revenue and various Income-tax Officers in all petitions. Sen and P. K. Ghose, for the State of West Bengal Respondents Nos. 2 and 3 in Petitions Nos.211 to 215 of 1956 . 1956. December 21. The Judgment of the Court was delivered by BHAGWATI J.-These petitions under Art. 32 of the Constitution raise a companymon question of law whether s. 5 7A of the Indian Income-tax Act, hereinafter called the Act, is ultra vires the Constitution as infringing the fundamental rights enshrined in Art. 14 and Art. 19 1 g . The facts which led to the filing of the petitions nay be shortly stated. petitions Nos. 97 97-A of 1956 The petitioners are M s. pannalal Binjrai, Oilmill owners, merchants and companymission agents, carrying on business at Sahibganj in the district of Santhal Pargans, having their branch at 94 Lower Chitpur Road, Culcutta, petitioner No. 1, and R. B. Jamuna Das Chowdhury, resident of the same place and erstwhile karta of the Hindu undivided family, which carried on business in the name and style of M S. Pannalal Binjr petetioner No. 2. Before September 28, 1954, they, being assessed by the Income-tax officer, Special Circle, Patna. On September 28, 1954, the Central Board of Revenue made an order -transferring their cases to the Income.tax Officer, Central Circle XI, Calcutta. On January 22, 1955, the Central Board of Revenue transferred the cases of petitioner No. 2 to the Income-tax Officer Central Circle VI,Delhi, and on July 12, 1955, it similarly transferred the cases of petitioner No. I to the same officer. After the dates of such transfer to the Income-tax Officer, Central Circle VI, Delhi, the said officer instituted several proceedings against them and the petitioners challenged in these petitions the validity of the said orders of transfer and all the subsequent proceedings including the assessment orders as well as the order levying penalty for number-payment of the income-tax which had been assessed prior thereto, on the ground that s. 5 7A of the Act was ultra Vires the Constitution and all the proceedings which were entertained against the petitioners by the Income-tax Officer Central circle XI Calcutta, and by the Income-tax Officer Central Circle VI, Delhi, were without jurisdiction and void. petitions Nos. 44 and 85 of 1956 The petitioner in Petition No.44/56 is Shrii A. L. sud, the sole proprietor of 14/B. Amritlal Sud Construction who orginally belonged to Hoshiarpur district in the State of Punjab but has since 1948 been residing and carrying on business in Calcutta. Prior to June 29, 1959, he had been assessed to income-tax by the Income-tax Officer, Special Survey Circle VII, Calcutta. On June 29, 1955, the Central Board of Revenue transferred his case to the Income-tax Officer, Special Circle, Ambala,, and the said officer companytinued the proceedings in the transferred case and also instituted further proceedings against the petitioner and assessed him under s. 23 4 of the Act for the assessment years 1946-47 and 1947-48. Demands were made upon the petitioner for payment of the amount of income-tax thus assessed whereupon he filed this petition impeaching the validity of the order of the Central Board of Revenue dated June 29, 1955, and the proceedings entertained by the Income-tax Officer, Special Circle, Ambala,on the ground that s. 5 7A of the Act was ultra vires the Constitution. Petition No. 85/56 was filed by M s. Bhagwan Das Sud Sons, Merchants, Hoshiarpur, carrying on business in rosin and turpentine there. Before October 20, 1953, they were being assessed by the Income-tax Officer,, Hoshiarpur, but on that date their case was transferred under s. 5 7A of the Act by the Commissioner of Income-tax to the Income-tax Officer, Special Circle, Ambala. The said officer companytinued the said case and reopened the assessment for the years 1944-45 to 1050-51 and companypleted the assessment for the assessment, years 1947-48, 1950-51 and 1951-52. These petitioners also thereupon filed the petition challenging the validity of the order of transfer made by the Commissioner of Income-tax on October 20, 1953, and the proceedings entertained by the Income-tax Officer, Special Circle, Ambala, thereafter, on the same ground -of the ultra vires character of s. 5 7A of the Act. Shri A. L. Sud, the petitioner in Petition No. 44/56 is a member of the Hindu undivided family carrying on business in the name and style. of M s bhagwan Das Sud Sons and the cases of both these petitionrs were transferred to the Income-tax Officer, Special Circle, Ambala, as above, by the said respective orders. Petitions Nos. 86, 87, 88, 111, 112 and 158 of 1956 These petitions may be companypendiously described as the Amritsar group. The petitioner in Petition No. 86/56 is Sardar Gurdial Singh, son of S. Narain Singh. The petitioner in Petition No. 87/56 is Dr. Sarmukh Singh, son of S. Narain Singh. The petitioner in Petition No. 112156 is S. Ram Singh, soil of S. Narain Singh. These three are brothers and the petitioner in Petition No. 88/56 is the father, S. Narain Singh, son of S. Basdev Singh. The father and the three sons were the directors in the Hindustan Embroidery Mills Private Ltd., petitioner No. 1 in Petition No. 111/56, which is located at Chheharta near Amritsar. All these petitioners were, prior to the orders of transfer made by the Commissioner of Income-tax under s. 5 7A of the Act, being assessed by the Income-tax Officer, A Ward, Amritsar, but their cases were transferred on or about June 29, 1953, from the Income-tax Officer, A Ward, Amritsar, to the Income-tax Officer, Special Circle, Amritsar. These cases were - companytinued by the latter officer and numberices under a. 34 of the Act were also issued by him against them for the assessment years 1947-48 to 1951-52. Each one of them filed a separate petition challenging the said orders of transfer by the Commissioner of Income-tax and the proceedings entertained by the Income- tax Office r, Special Circle, Amritsar, against them -on the score of the unconstitutionality of s. 5 7A of the Act. The petitioner in Petition No. 158/56 is one Shri Ram Saran Das Kapur, the head and karta of the Hindu undivided family carrying on business outside Ghee Mandi Gate, Amritsar. His case also whichprior to the order companyplained against, was being entertained by the Income-tax Officer, F Ward, Amritsar, was transferred on some date in 1954 by an order of the Commissioner of Income-tax under s. 5 7A of the Act to the Income-tax Officer, Special Circle, Amritsar. No objection wag taken by the petitioner to this order of transfer until after the assess. ment order was passed against him but he also challenged the validity of the said order of transfer and the proceedings entertained by the Income-tax Officer, Special Circle, Amritsar, thereafter, on the same grounds as the other petitioners. Petitions NOs. 211 to 215 of 1956 These petitions may be described as the Sriram Jhabarmull group. Though separately filed, the petitioner in each of them is the same individuals Nandram Agarwalla, who is the sole proprietor Of a business which he carries on under the name and style of I Sriram Jhabarmull. It is a business, inter alia, of import and export of piece-goods as companymission agents, and dealers in raw wool and other materials. The principal place of business is at Kalimpong, in the district of Darjeeling, though there is also a branch at Calcutta. These petitions companycern the assessment of the petitioner to income-tax for the respective years 1944-45, 1945-46, 1946-47, 1947-48 and 1948-49. Prior to the orders of the Commissioner of Income-tax under s. 5 7A of the Act companyplained against, the petitioner was being assessed by the Income-tax Officer, Jalpaiguri, Darjeeling. On March 5, 1946, the cases of the petitioner were transferred from the Income-tax Officer, Jalpaiguri, Darjeeling, to the Income- tax Officer, Central Circle 1, Calcutta, and a companyple of months thereafter they were again transferred to the Income- tax Officer, Central Circle IV, Calcutta. On June 8, 1946, there was a further transfer assigning the cases to the Income-tax Officer, Central Circle 1, Calcutta, and on July 27, 1946, orders were passed by the Commissioner of Income- tax Central, Calcutta, under s. 5 7A transferring the cases of the petitioner to the Income-tax Officer, Central Circle IV, Calcutta. These are the orders which are companyplained against as unconstitutional and void invalidating the proceedings which were companytinued and subsequently instituted by the Income-tax Officer, Central Circle IV, Calcutta, against the petitioner on the score of the unconstitutionality of s. 5 7A of the Act. It may be numbered, however that these orders were all prior to the Constitution and having been made on July 27, 1946, as aforesaid were followed up by companypleted assessment proceedings in respect of the said respective years and also certificate proceedings under S. 46 2 of the Act. There were further orders dated December 15, 1947, and sometime in September, 1948, transferring the cases of the petitioner from the Income-tax Officer, Central Circle IV, Calcutta, to the Income-tax Officer, Central Circle 1, Calcutta, and back from him to the Income-tax Officer, Central Circle,IV Calcutta. These, however, are number material for our purposes, the only order challenged being the order of the Commissioner of Income-tax Central, Calcutta. dated July 27, 1946, which was passed under s. 5 7A of the Act. Petitions Nos. 225 to 229 of 1956 These Petitions may be classed as the Raichur group. They companycern the assessment for the respective assessment years 1950-5l, 1951-52, 1952-53, 1953-54 and 1954-55. The petitioner in each of them is the same individual, one Kalloor Siddannal who resides and carries on business in Raichur in the State of Hyderabad as companymission agent and distributor of agricultural products. Income-tax was first imposed in the Hyderabad State in 1946 by a special Act of the Legislature and the petitioner was assessed under the Hyderabad Income-tax Act by the Additional Income-tax Officer, Raichur, for the assessment years 1948-49 and 1949- As from April 1, 195o, the Indian Income-tax Act was applied to Hyderabad but the Additional Income-tax Officer, Raichur, companytinued to assess the petitioner. The cases in respect of -the assessment years 1950-51, 1951-52 and 1952- 53 were pending before that officer and proceedings were taken in companynection with the -assessment for those years. On December 21, 1953, however, the Commissioner of Income- tax Hyderabad, issued a numberification under S. 5 7 ordering that the case of the petitioner should be transferred from the Additional income-tax Officer, Raichur, to the Income- tax Officer, Special Circle, Hyderabad. The latter officer companytinued the assessment proceedings and issued numberices under s. 22 .4 of the Act on July 1, 1954, November 2, 1954, November 30,1954, December 19, 1954, and March 11, 1955, in respect of the said years of assessment. Assessments for the said years were made on March 21, 1955, and on April 24, 1955, the petitioner made an application under s. 27 of the Act to reopen the assessment for the year 1950-51 as on default under s. 23 4 of the Act. It appears, however, that shortly before May 19, 1955, the Commissioner of Income-tax, Hyderabad, made another order under s. 5 7A and s. 64 5 b of the Act transferring all the cases of the petitioner to the main Income-tax Officer, Raichur. Curiously enough, the petitioner challenged both the orders one dated December 21, 1953, and the other made sometime in May, 1955, under s. 5 7A of the Act and the proceedings companytinued and instituted by the respective officers thereunder as unconstitutional and void on the ground that s. 5 7A was ultra vires the Constitution even though ultimately he was being assessed by the main Income-tax Officer, Raichur, under the latter order. This is the companymon question in regard to the ultra vires character of s. 5 7A of the Act which is raised in all these petitions, though in regard to each group there are several questions of fact involving the companysideration of the discriminatory character of the specific orders passed therein which we shall deal with hereafter in their appropriate places. Section 5 7A of the Act runs as under 5 7A The Commissioner of Income-tax may transfer any ease from one Income-tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall number render necessary the reissue of any numberice already issued by the Income-tax Officer from whom the case is transferred. This sub-section was inserted by s. 3 of the Indian Income- tax Amendment Act, 1940 XL of 1940 which was passed as a result of the decision of the Bombay High Court in Dayaldas Kushiram v. Commissioner of Income-tax, Central I.L.R. 194o Bom. 650, By the Indian Income-tax Amendment Act, 1956 XXVI of 1956 an explanation was added to s. 5 7A in the terms following as a result of the decision of this Court in Bidi Supply Co. v- The Union of India 1 Explanation -In this sub-section, I case in relation to any person whose name is specified in the order of transfer means all proceedings under this Act in respect of any year which may be pending on the date of the transfer,, and includes all proceedings under this Act which may be companymenced after the date of the transfer in respect of any year. Section 5 7A together with the explanation thus falls to be companysidered by us in these petitions. The argument on behalf of the petitioners is that a. 64, sub-ss. 1 and 2 of the Act companyfer upon the assessee a valuable right and he is entitled to tell the taxing authorities that he shall number be called upon to attend at different places and thus upset his business. Section 5 7A invests the Commissioner of Income-tax and the Central Board of Revenue with naked and arbitrary power to transfer any case from any one Income-tax Officer to another without any limitation in point of time, a power which is unguided and uncontrolled and is discriminatory in its nature and it is open to the Commissioner of Income-tax or the Central Board of Revenue to pick out the case of one assessee from those of others in a like situation and transfer the same from one State to another or from one end of India to the other without specifying any object and without giving any reason, thus subjecting the particular assessee to discriminatory treatment whereas the other assessees similarly situated with him would companytinue to be assessed at the places where they reside or carry on business under s. 64 1 and 2 of the Act. Section 64 5 which provides with retrospective effect that the provisions of s. 64 1 and 2 shall number apply, inter alia, where an order has been made under s. 5 7A was inserted simultaneously with s. 5 7A and would number have the effect of depriving the 1 1956 S.C.R. 267. assessee of the valuable right companyferred upon him under s. 64 1 and 2 unless and until s. 5 7A was intra vires but s. 5 7A , as stated above, being discriminatory in its nature is ultra vires the Constitution and cannot save s. 64 5 which is merely companysequential. The discrimination involved in s. 5 7A is substantial in character and, therefore, infringes the fundamental right enshrined,in Art. 14 of the Constitution. It also infringes Art. 19 1 g in so far as it imposes an unreasonable restriction on the fundamental right to carry on trade or business Vide Himmatlal Harilal Mehta v. The State of Madhya Pradesh 1 . The very same question as regards the unconstitutionality of s. 5 7A of the Act had companye up for decision before this Court in Bidi Supply Co. v. The Union of India supra . The case of the assessee there had been transferred by the Central Board of Revenue under s. 5 7A of the get from the Income-tax Officer, District 111, Calcutta, to the Income- tax Officer, Special Circle, Ranchi. The -order was an omnibus wholesale order of transfer expressed in general terms without any reference to any particular case and with- out any limitation as to time and was challenged as void on the ground that s. 5 7A under which it had been passed was unconstitutional. This Court, by a majority judgment, after discussing the general principles underlying Art. 14, did number adjudicate upon that question, observing at p. 276 We do number companysider it necessary, for the purpose of this case, to pause to companysider whether the companystitutionality of Sub-section. 7A of section 5 can be Supported on the -principle of any reasonable classification laid down by this Court or whether the Act lays down any principle for guiding or regulating the exercise of discretion by the Commissioner or Board of Revenue or whether the sub-section companyfers an unguided and arbitrary power on those authorities to pick and choose individual assessee and place that assessee at a disadvantage in companyparison with other assessees. it is enough for the purpose of this case to say that the omnibus order made in this case, is-not companytemplated I 1954 S.C.R. 1122. or sanctioned by sub-section 7A and that, therefore, the petitioner is still entitled to the benefit of the provisions of sub-sections 1 and 2 of section 64. All assessees are entitled to the benefit of those pro. visions except where a particular case or cases of a particular assessee for a particular year or years is or are transferred under sub-section 7A of section 5, assuming that section to be valid and if a particular case or cases is or are transferred his right under section 64 still remains as regards his other case or cases. The majority judgment then proceeded to companysider the effect of such an omnibus order unlimited in point of time on the rights of the assessee and further observed in that companytext at p. 277 This order is calculated to inflict companysiderable inconvenience and harassment on the petitioner. Its books of account will have to be produced before the Income-tax Officer, Special Circle, Ranchi-a place hundreds of miles from Calcutta, which is its place of business. Its partners or principal officers will have to be away from the head office for a companysiderable period neglecting the main business of the firm. There may be numbersuitable place where they can put up during that period. There will certainly be extra expenditure to be incurred by it by way of railway fare, freight and hotel expenses. Therefore the reality of the discrimination cannot be gainsaid. In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is number founded on any law and numberquestion of reasonable classification for purposes of legislation can arise. Here the State which includes its Income-tax department has by an illegal order denied to the petitioner, as companypared with other Bidi mer- chants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately companyplain of an infraction of his fundamental right under Article 14 of the Constitution. The question as to the companystitutionality of s. 5 7A of the Act was thus left open and the decision turned merely on the companystruction of the impugned order. Learned companynsel for the petitioners, however, lays particular stress on the observations of Bose, J., in the minority judgment which he delivered in that case whereby he held that ss. 5 7A and 64 5 b of the Act were themselves ultra vires Art. 14 of the Constitution and number merely the order of the Central Board of Revenue. The learned Judge referred to a passage from the judgment of Fazl Ali, J., in The State of West Bengal v. Anwar Ali Sarkar 1 and also pointed out the decision of this Court in M S. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh and Two Others 2 and observed What is the position here? There is numberhearing, numberreasons are recorded just peremptory orders transferring the case from one place to another without any warning and the power given by the Act is to transfer from one end of India to the other number is that power unused. We have before us in this Court a case pending in which a transfer has been ordered from Calcutta in West Bengal to Ambala in the Punjab. p. 283 If the Legislature itself had done here what the Central Board of Revenue has done and had passed an Act in the bald terms of the order made here transferring the case of this petitioner, picked out from others in a like situation, from one State to another, or from one end of India to the other, without specifying any object and without giving any reason, it would, in my judgment, have been bad. I am unable to see how the position is bettered because the Central Board of Revenue has done this and number Parliament. p. 284-5 In my opinion, the power of transfer can only be companyferred if it is hedged round with reasonable restrictions, the absence or existence of which can in the last instance be determined by the companyrts and the exercise of the power must be in companyformity with the rules of natural justice, that is to say, the parties affected must be heard when that is reasonably possible, and the reasons for the order must be reduced, however briefly, to writing so that men may know that 1 1952 S. C. R. 284, 309-310. 2 1954 S. C. R. 803. the powers companyferred on these quasi-judicial bodies are being justly and properly exercised. p. 287 The answer furnished on behalf of the State to this argument is fourfold that the provision companytained in s. 5 7A of the Act is a measure of administrative companyvenience enacted with a view- to more companyveniently and effectively deal with the cases of the assessees where the Commissioner of Income-tax companysiders it necessary or desirable to transfer any case from one Income-tax Officer subordinate to him to another or the Central Board of Revenue similarly companysiders it necessary or desirable to transfer any case from any one Income-tax Officer to another. The real object with which s. 5 7A was inserted by the Indian Income-tax Amendment Act, 1940 XL of 1940 , has been thus set out in the affidavit of Shri Gouri Shankar, Under Secretary, Central Board of Revenue, dated November 19, 1956, which is the pattern of all the affidavits filed on behalf of the State in these petitions 4 I say that the provisions of s. 5 7A were inserted by the Income-tax Amendment Act, XL of 1940, with the object of minimising certain procedural difficulties. Before this amendment was passed there was numberspecific provision in the Act for transferring a case from one Income-tax Officer to -another except by a long and circuitous companyrse even at the request of the assessees. In order therefore to be able to transfer the case from one 1. T. 0. to another either because of the request of the assessee or for dealing with cases involving special features such as cases of assessees involving widespread activities and large ramifications or inter-related transactions, power to transfer cases was companyferred upon the Central Board of Revenue and the Commissioner of Income-tax as the case may be. I say that the provisions of s. 5 7A ate thus administrative in character that the assessee whose case is thus transferred is number subjected to any discriminatory procedure in the matter of his assessment. The Income-tax Officer to whom his case is transferred deals with it under the same procedure which is laid down in the relevant provisions of the Act. The decision of the Income-tax Officer is subject to appeal before the Appellate Assistant Commissioner and the assessee has the further right to appeal to the Income-tax Appellate Tribunal and to approach the High Court and ultimately the Supreme Court, as provided in the Act. All assessees, whether they are assessed by the Income-tax Officer of the area where they reside or carry on business or their cases are transferred from one Income-tax Officer to another, are subject to the same procedure and are entitled to the same rights and privileges in the matter of redress of their grievances, if any, and there is numberdis- crimination whatever between assessees and assessees that the right, if any, companyferred upon the assessee under s. 64 1 and 2 of the Act is number an absolute right but is circumscribed by the exigencies of tax companylection and can be negatived as it has been in cases where the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, think it necessary or desirable to transfer his case from one Income-tax Officer to another under s. 5 7A of the Act having regard to all the circumstances of the case. The argument of inconvenience is thus sought to be met in the same affidavit 5. 1 further say that as a result of any transfer that may be made under the provisions of s. 5 7A there is numberdiscriminatory treatment with regard to the procedure and that numberprivileges and rights which are given to the assessees by the Income-tax Act are taken away number is the assessee exposed to any increased prejudice, punitary companysequences or differential treatment. I say that in cases where transfers under this section are made otherwise than on request from assessees, the companyvenience of the assessees is taken into companysideration by placing the case in the hands of an Income-tax Officer who is nearest to the area where it will be companyvenient for the assessee to attend. If on account of administrative exigencies this is number possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place companyvenient to him, the I.T.O. companyplies with the request of the assessee and holds the hearing at the place requested. Even if there be a difference between assessees who reside or carry on business in a particular area by reason of such transfers the difference is number material. -It is only a minor deviation from a general standard and does number amount to a denial of equal rights that the power which is thus vested is a discretionary power and is number necessarily discriminatory in its nature and that abuse of power is number to be easily assumed where discretion is vested in such high officials of the State. Even if abuse of power may sometimes occur, the validity of the provision cannot be companytested because of such apprehension. What may be struck down in such cases is number the provision itself but the discriminatory application thereof. The petitioners rejoin by relying upon the following passage from the judgment of Fazl Ali, J., in The State Of West Bengal v. Anwar Ali Sarkar, Supra , which was referred to by Bose, J., in his minority judgment in Bidi Supply Co. v. The Union of India, Supra , at page 281 It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offenses, cannot be Said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does number appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it Is companyched in general terms and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say-I am number to blame as I am acting under the Act. It is clear that if the argument were to be ,accepted, article 14 companyld be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the I insidious discrimination companyplained of is incorporated in the Act itself, it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The pivot of the whole argument of the petitioners is the provisions companytained in s. 64 1 and 2 of the Act which prescribe the place of assessment. They are- 64. 1 Where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer- of the area in which that place is situate or, where the business, profession or vocation is carried on in more places than one, by the Income-tax Officer of the area in which the principal place of his business, profession or vocation is situate. In all other cases, an assessee shall be assessed by the Income-tax Officer of the area in which he resides. These provisions were companystrued by the Bombay High Court in Dayaldas Kushiram v. Commissioner Income-tax, Central , supra , and Beaumont, C.J., observed at p. 657 In my opinion section 64 was intended to ensure that as far as practicable an assessee should be assessed locally, and the area to which an Income-tax Officer is appointed must, so far as the exigencies of tax companylection allow, bear some reasonable relation to the place where the assessee carries on business or resides. Kania, J., as he then was, went a step further and stated at p. 660 A plain reading of the section shows that the same is imperative in terms. It also gives to the assessee a valuable right. He is entitled to tell the taxing authorities that he shall number be called upon to attend at different places and thus upset his business. The learned Judges there appear to have treated the provisions of s. 64 1 and 2 more as a question of right than as a matter of companyvenience only. If there were thus a right companyferred upon the assessee by the provisions of s. 64 1 and 2 of the Act and that right companytinues to be enjoyed. by all the assessees except the assessee whose case is transferred under s. 5 7A of the Act to another Income-tax Officer outside the area where he resides or carries on business, the assessee can urge that, as companypared with those other assessees, he is discriminated against and is subjected to inconvenience and harassment. It is, therefore, necessary to companysider whether any such right is companyferred upon the assessee by s. 64 1 and 2 of the Act. Prima facie it would appear that an assessee is entitled under those provisions to be assessed by the Income-tax Officer of the particular area where he ,resides or carries on business. Even where a question arises as to the place of assessment such question is under s. 64 3 to be determined by the Commissioner or the Commissioners companycerned if the question is between places in more States than one or by the Central Board of Revenue if the latter are, number in agreement and the assessee is given an opportunity of representing his views before any such question is determined. This provision also goes to show that the companyvenience of the assessee is the main companysideration in determining the place of assessment. Even so the exigencies of tax companylection have got to be companysidered and the primary object of the Act, viz., the assessment of income-tax, has got to be achieved. The hierarchy of income-tax authorities which is set up under Chapter 11 of the Act has been so set up with a view to assess the proper income-tax payable by the assessee and whether the one or the other of the authorities will proceed to assess a particular assessee has got to be determined number only having regard to the companyvenience of the assessee but also the exigencies of tax companylection. In order to assess the-tax payable by an assessee more companyveniently and efficiently it may be necessary to have him assessed by an Income-tax Officer of an area other than the one in which, he resides or carries on business. It may be that the nature and volume of his business operations are such as require investigation into his affairs in a place other than the one where he resides or carries on business or that he is so, companynected with various other individuals or organiza- tions in the way of his earning his income as to render such extra-tertitorial investigation necessary before he may be properly assessed. These are but instances of the various situations which may arise wherein it may be thought necessary by the Income-tax authorities to transfer his case from the Income-tax, Officer of the area in which he resides or carries on business to, another Income-tax Officer whether functioning in the same State or beyond it. This aspect of the question wag emphasized by Beaumont, C.J., in Dayaldas Kushiram v. Commissioner of Income-tax, Central , supra , at page 146, when he used the expression as far as practicable in companynection with the assessees right to be assessed locally and the expression so far as exigencies of tax companylection allow in companynection with the appointment of the Income-tax Officer to assess the tax payable by the particular assessee. In the later case of Dayaldas Kushiram v. Commissioner of Income-tax, Central 1 , Beaumont, C.J., expressed himself as follows The Income-tax Act does number determine the place of assessment. What it does is to determine the Officer who is to have power to assess and in some cases it does so by reference to locality but I apprehend that an appeal would be number against an order of the Commissioner as to the place of assessment, but against the order of assessment of the Income-tax, Officer, thus stating in effect that this section does number give a right to the assessee to have his assessment, at a parti- cular place but determines the Income-tax Officer who is to have power to assess him. This aspect was further emphasized by the Federal Court in Wallace Brothers Co. v. Commissioner of, Income-tax, Bombay, Sind Baluchistan 2 , where Spens, C.J., observed Clause 3 of s. 64 provides that any question as to the place of assessment shall be determined by the Commissioner or by the Central Board of Revenue Proviso 3 to the clause enacts that if the place -of assessment is called in question by the assessee, the Income-tax Officer -shall, if number satisfied, with the 1 1943 11 I.T.R. 67, 101. A.I.R. 1945 F.C. 9,13. companyrectness of the claim, refer the matter for determination under this sub-section before assessment is made. These provisions clearly indicate that the matter is more one of administrative companyvenience than of jurisdiction and that in any event it is number one for adjudication by the Court. It may be numbered, however, that in the passage at page 276 of the majority judgment in Bidi Supply Co. v. The Union of India supra , this companyrt regarded the benefit companyferred on the assessee by these provisions of a. 64 1 and 2 of the Act as a right and it is, too late in the day for us to say that numbersuch right to be assessed by the Income-tax Officer of the particular area, where he resides or carries on his business is companyferred on the assessee. This right, however, according to the authorities above referred to, is hedged in with the limitation that it has to yield to the exigencies of tax companylection. The position, therefore, is that the determination of the, question whether a particular Income-tax Officer should assess the case of the assessee depends on 1 the companyvenience of the assessee as posited in s. 64 1 and 2 of the Act, and 2 the exigencies of tax companylection and it would be open to -the Commissioner of Income-tax and the Central Board of Revenue who are the highest amongst the Income-tax. Authorities under the Act to transfer the case of a particular assessee from the Income-tax Officer of the area within which he resides or carries on business to any other Income-tax Officer if the exigencies of tax companylection warrant the same. It is further to be numbered that the infringement of such a right by the order of transfer, under s. 5 7A of the Act is number a material infringement. It is only a deviation of a minor character from the general standard and does number necessarily involve a denial of equal rights for the simple reason that even after such transfer the case is dealt with under the numbermal procedure which is prescribed in the -Act. The production and investigation of the books of account, the enquiries to be made by the Income-tax Officer and the whole of the procedure as to assessment including the further appeals after the assessment is made by the Incometax Officer are the same in a transferred case as in others which remain with the Income-tax Officer of the area in which the other assesees reside or carry on business. There is thus numberdifferential treatment and numberscope for the argument that the particular assessee is discriminated against with reference to others similarly situated. It was observed by this Court in, K. Gopalan v. The State of Madhya Pradesh 1 In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkars case. That decision, however, applies only to a case where on the allotment of an individual case to a special Court authorised to companyduct the trial -by a procedure substantially different from the numbermal procedure, discrimination arises as between persons who have companymitted similar offences, by one or more out of them being subjected to a procedure, which is materially different from the numbermal procedure and prejudicing them thereby. In the pre- sent case, the Special Magistrate under s. 14 of the Criminal Procedure Code has to try- the case entirely under the numbermal procedure, and numberdiscrimination of the kind companytemplated by the decision in Anwar Ali Sarkard case and the other cases following it arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such, and is therefore number hit by article 14 of the Constitution. There is, therefore, numbersubstance in this companytention. To a similar effect were the observations of Mukherjea, J., as he then was, in The State of West Bengal v. Anwar Ali Sarkar, supra , at p. 325 I agree with the Attorney-General that if the differences are number material, there may number be any discrimination in the proper sense of the word and minor deviations from the general standard might number amount to denial of equal rights. It is pointed out that as s. 64 5 stands at present, the provisions of s. 64 1 and 2 do number apply and are 1 1955 1 S.C.R. 168, I71. deemed never at any time to have applied to an assessee where, in companysequence of any transfer made under s. 5 7A , a particular Income-tax Officer has been charged with the function of assessing that assessee. section 64 5 was incorporated by the Income-tax Law Amendment Act, 1940 XL of 1940 simultaneously with s. 5 7A . It is therefore, urged that an assesse whose case has been thus transferred has numberright under s. 64 1 and 2 and those assessees alone who do number companye within the purview of s. 64 5 can have the benefit of s. 64 1 and 2 . This argument, however, ignores the fact that s. 5 7A is the very basis of the enactment of the relevant provision in s. 64 5 and if a. 5 7A cannot stand by virtue of its being discriminatory in character, the relevant portion of s. 64 5 also must fall with it. It is then companytended that a. 5 7A is in itself discriminatory and violative of the fundamental right en- shrined in Art. 14. The power which is vested in the Commissioner of Income-tax and the Central Board of Revenue is a naked and arbitrary power unguided and uncontrolled by any rules. No rules have been framed and numberdirections given which would regulate or guide their discretion or on the basis of which such transfers can be made and the whole matter is left to the unrestrained will of the Commissioner of Income-tax or the Central Board of Revenue without there being anything which companyld ensure a proper execution of the power or operate as a check upon the injustice that might result from the improper execution of the same. To use the words of Mr. Justice Matthews in the case of Yick Wo v. Hopkins 1 when we remember that this action or numberaction may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of companycealment and difficult to be detected and exposed, it becomes unnecessary to suggest or companyment upon the injustice capable of being wrought under companyer of such a power, for that becomes apparent to every one who gives to the subject a moments companysideration. 118 U. S. 356, 373 30 L. Ed. 220, 227. In other words, it is number a question of an uncon- stitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself Per Das, J., as he then was, in The State of West Bengal v. Anwar Ali, Sarkar, supra at p. 346 . It has to be remembered that the purpose of the Act is to levy income-tax, assess and companylect the same. The preamble of the Act does number say so in terms it being an Act to companysolidate and amend the law relating to income-tax and super-tax but that is the purpose of the Act as disclosed in the preamble of the First Indian Income-tax Act of 1886 Act II of 1886 . It follows, therefore, that all the provisions companytained in the Act have been designed with the object of achieving that purpose. There is in the first instance, the charge of income-tax. Then we find set up the various authorities in the hierarchy who are entrusted with the function of assessing the income-tax, the Central Board of Revenue being at the apex. There is also an Appellate Tribunal which is established for hearing appeals against the decisions of the Appellate Assistant Commissioners. Then follow the provisions in regard to taxable income, mode of assessment and companynate provisions. The Income-tax Officers are invested with the duty of assessing the income-tax of the assessees in the first instance. The Assistant Commissioners of Income-tax, are the appellate authorities over the decisions of the Income-tax Officers and the Income-tax Appellate Tribunal is the final appellate authority barring of companyrse references under s. 66 1 of the Act to the High Court on questions of law. The Commissioners of Income-tax and the Central Board of Revenue are mainly administrative authorities over the Income-tax Officers and the Assistant Commissioners of Income-tax and they are to distribute and companytrol the work to be done by these authorities. All officers and persons employed in the execution of the Act are to observe and follow the orders instructions and directions of the. Central Board of Revenue which is the highest authority in the hierarchy and, even though numbermally in accordance with the provisions of s. 64 1 and 2 the work of assessment is to be done by the Income-tax Officers of the area within which the assessees reside or carry on business, power is given by s. 5 7A to the Commissioner of Income-tax to transfer any case from one Income-tax Officer subordinate to him to another and to the Central Board of Revenue to transfer any case from any one Income-tax Officer to another. This is the administrative machinery which is set up for assessing the incomes of the assessees which are chargeable to income-tax. There is, therefore, companysiderable force in the companytention which has been urged on behalf of the State that s. 5 7A is a provision for administrative companyvenience. Nevertheless this power which is given to the Commissioner of Income-tax and the Central Board of Revenue has to be exercised in a manner which is number discriminatory. No rules or directions having been laid down in regard to the exercise of that power in particular cases, the appropriate authority has to determine what are the proper cases in which such power should be exercised having regard to the object of the Act and the ends to be achieved. The cases of the assessees which companye for assessment before the income- tax authorities are of various types and numberone case is similar to another. there are companyplications introduced by the very nature of the business which is carried on by the assessees and there may be, in particular cases, such widespread activities and large ramifications or inter- related transactions as might require for the companyvenient and efficient assessment of income-tax the transfer of such cases from one Income-tax Officer to another. In such cases the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, has to exercise its discretion with due regard to the exigencies of tax companylection. Even though there may be a companymon attribute between the assesses whose case is thus transferred and the assessees who companytinue to be assessed by the Income-tax Officer of the area within which they reside or carry on business, the other attributes would number be companymon. One assessee may have such widespread activities and ramifications as would require his case to be transferred from the Income-tax Officer of the particular area to an Income-tax Officer of another area in the same State or in another State, which may be called X . Another assessee, though belonging to a similar category may be more companyveniently and efficiently assessed in another area whether situated within the State or without it, called Y . The companysiderations which will weigh with the Commissioner of Income-tax or the Central Board of Revenue in transferring the cases of such assessee either to the area X or the area Y will depend upon the particular circumstances of each case and numberhard and fast rule can be laid down for determining whether the particular case should , be transferred at all or to an Income-tax Officer of a particular area. Such discretion would necessarily have to be vested in the authority companycerned and merely because the case of a particular assessee is transferred from the Income-tax Officer of an area within which he resides or carries on business to another Income-tax Officer whether wit in or without the State will number by itself be sufficient to characterize the exercise of the discretion as discriminatory. Even if there is a possibility of discriminatory treatment of persons falling within the same group or category, such possibility cannot necessarily invalidate the piece of legislation. It may also be remembered that this power is vested number in minor officials but in top-ranking authorities like the Commissioner of Income-tax and the Central Board of Revenue who act on the information supplied to them by the Income- tax Officers companycerned. This power is discretionary and number necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. Vide Matajog Dobey v. H. S. Bhari 1 . There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. Vide People of the State of 1 1955 2 S.C.R. 925, 932. New. York v. John E. Van De Carr, etc. 1 It has also been observed by this Court in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti 2 with reference to the possibility of discrimination between assessees in the matter of the reference of their cases to the Income-tax Investigation Commission that It is to be presumed, unless the, companytrary were shown, that the administration of a particular law would be done I number with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would number be discriminatory. This presumption, however, cannot be stretched too far and cannot be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or companyporations to hostile and discriminatory treatment Vide Gulf, Colorado, etc. v. W. H. Ellis 3 . There may be cases where improper execution of power will result in injustice to the parties. As has been observed, however, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are number without ample remedies under the law Vide Dinabandu Sahu v. Jadumony Mangaraj 4 . What will be struck down in such cases will number be the provision which invests the authorities with such power but the abuse of the power itself. It is pointed that it will be next to impossible for the assessee to challenge a particular order made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, as discriminatory because the reasons. which actuated the authority in making the order will be known to itself number being recorded in the body of the order itself or companymunicated to the assesse. The burden moreover will be on the assessee to demonstrate that the order of transfer is an abuse of power vested in the authority companycerned. This apprehension is, however, ill-founded. Though the 1 1905 310-199 U.S. 552 50 L. Ed. 305. 2 1955 2 S. C. R. 1196. 3 1897 165 U.S. 150 41 L.Ed. 666. 4 1955 I S.C.R. 140. 146. burden of proving that there is an abuse of power,lies on the assessee who challenges the order as discriminatory, such burden is number by way of proof to the hilt. There are instances where in the case of an accused person rebutting a presumption or proving an. exception which will exonerate him from the liability for the offence with which he has been charged, the burden is held to be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish Vide Rex v. Carr-Briant 1 , or in the case of a detenue under the Preventive Detention Act seeking to make out a case of want of bona fides in the detaining authority, the burden of proof is held number to be one which requires proof to the hilt but such as will render the absence of bona fides reasonably probable Vide Ratanlal Gupta v. The District Magistrat of Ganjam also Brundaban Chandra Dhir Narendra v. The State of Orissa Revenue Department 3 . If, in a particular ,case, the assessee seeks to impeach the order of transfer is an abuse of power pointing out circumstances which prima facie and without anything more would make out the exercise of the power discriminatory qua him, it will be incumbent on the authority to explain the circumstances under which the order has been made. The companyrt will, in that event, scrutinize these Circumstances having particular regard to the object sought to be achieved by the enactment of s. 5 7A of the Act as set out in para 4 of the affidavit of Shri V. Gouri Shankar, Under Secretary, Central Board of Revenue, quoted above, and companye to its own companyclusion as to the bona fides of the order and if it is number satisfied that the order was made by the authorities in bona fide exercise of the power vested in them under s. 5 7A of the Act, it will certainly quash the lame. The standard of satisfaction which would have to be attained will necessarily depend on the Circumstances of each case and the companyrt will arrive at the companyclusion one way or the other having regard to all the circumstances of the case disclosed in the 1 1943 1 K.B. 607. I.L.R. 1951 cuttack 441, 459. I.L.R. 1952 Cuttack 529, 573. record. The companyrt will certainly number be powerless to strike down the abuse of power in appropriate cases and the assessee will number be without redress. The observations of Fazl Ali, J., in The State of West Bengal v. Anwar Ali Sarkar, supra , at pages 309-310 that the authority will say I am number to blame as I am acting under the Act will number necessarily save the order from being challenged because even though the authority purported to act under the Act its action will be subject to scrutiny in the manner indicated above and will be liable to be set aside if it was found to be mala fide or discriminatory qua the assessee. Particular stress is laid on behalf of the petitioners on the observations at page 277 of the majority judgment in Bidi Supply Co. v. The Union of India, supra , which in the companytext of the omnibus wholesale order in question emphasized the substantial discrimination to which the assessee there had been subjected as companypared with other bidi merchants who were similarly situated. The inconvenience and harassiment to which the assessee was thus put were companysidered to be violative of Art. 14 of the Constitution and it is urged that s. 5 7A is unconstitutional in Boar as it is open to the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to make an order of transfer subjecting the assessee to such inconvenience and harassment at their sweet will and pleasure. This argument of inconvenience, however, is number companyclusive. There is numberfundamental right in an assessee to be assessed in a particular area or locality. Even companysidered in the companytext of s. 64 1 and 2 of the Act this right which is companyferred upon the assessee to be assessed in a particular area or locality is number an absolute right but is subject to the exigencies of tax companylection. The difference, if any, created in the position of the assessee qua others who- companytinue to be assessed by the Income-tax Officer of the area in which they reside or carry on business is number a material difference but a minor deviation from the general standard and would, therefore, number amount to the denial of equal rights Per Mukherjea, J., as he then was, in The State of West Bengal v. Anwar Ali Sarkar., supra , at p. 325 . There is also the further fact to be borne mind that this inconvenience to the assessee is sough to be minimised by the authority companycerned transferring the case of such assessee to the Income-tax Officer who is nearest to the area where it would be companyvenient for the assessee to attend and if, on account of administrative exigencies, this is number possible an the assessee requests that the examination of account or evidence to be taken should be in a place companyvenient to him, by the Income-tax Officer companyplying with the request of the assessee and holding the hearing at the place requested. We are bound to take the statement companytained in para 5 of the affidavit of Shri. V. Gouri Shankar at its face value and if this is done as it should be, the assessee will number be put to any inconvenience or harassment and the proper balance between the rights of the subject and public interest will be preserved. It is, therefore, clear that the power which is veste in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under s. 5 7A of the Act is number a naked and arbitrary power, unfettered, unguided or uncontrolled so as to enable the authority to pick and choose one assessee out of those similarly circumstanced thus subjecting him to discriminatory treatment as companypared with others who fall within the same category. The power is guided and companytrolled by the purpose which is to be achieved by the Act itself, viz., the charge of income-tax, the assessment and companylection thereof, and is to be exercised for the more companyvenient and efficient companylection of the tax A wide discretion is given to the authorities companycerned for the achievement of that purpose, in the matter of the transfer of the cases of the assessees from one Income-tax Officer to another and it cannot be urged that such power which is vested in the authorities is discriminatory in its nature. There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. If the statute deals with a right which is number fundamental in character the statute can take it away but a fundamental right the statute cannot take away. Where, for example, a discretion is given in the matter of issuing licences for carrying on trade, profession or business or where restrictions are imposed on freedom of speech, etc., by a imposition of censorship, the discretion must be companytrolled by clear rules so as to companye within the category of reasonable restrictions. Discretion of that nature must be differentiated from discretion in respect of matters number involving fundamental rights such as transfers of cases. An inconvenience resulting from a change of place or venue occurs when any case is transferred from one place to another but it is number open to a party to say that a fundamental right has been infringed by such transfer. Ili other words, the discretion vested has to be looked at from two points of view, ViZ., 1 does it admit of the possibility of any real and substantial discrimination, and 2 does it impinge on a fundamental right guaranteed by the Constitution? Article 14 can be invoked only when both these companyditions are satisfied. Applying this test, it is clear that the discretion which is vested in the Com- missioner of Income-tax or the Central Board of Reevenue, as the case may be, under s. 5 7A is number at all discriminatory. It follows, therefore, that s. 5 7A of the Act is number violative of Art. 14 of the Constitution and also does number impose any unreasonable restriction on the fundamental right to carry on trade or business enshrined in Art. 19 1 g of the Constitution. If there is any abuse of power it can be remedied by appropriate action -either under Art. 226 or under Art. 32 of the companystitution and what can be struck down is number the provision companytained in s. 5 7A of the Act but the order passed thereunder which may be mala fide or violative,of these fundamental rights. This challenge of the vires of s. 5 7A of the Act, therefore, fails. We may, however, before we leave this topic observe that it would be prudent if the principles of natural justice are, followed, where circumstances permit, before any order of transfer under s. 5 7A of the Act is made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, and numberice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing. It is significant that when any question arises under s. 64 as to the place of assessment and is determined by the Commissioner or Commissioners or by the Central Board of Revenue, as the case may be, the assessee is given an opportunity under s. 64 3 of representing his views before any such question is determined. If an opportunity is given to the assessee in such case, it is all the more ,surprising to find that, when an order of transfer under s. 5 7A is made transferring the case of the assessee from one Income- tax Officer to another irrespective of the area or locality where he resides or carries on business, he should number be given such an opportunity. There is numberpresumption against the bona fides or the honesty of an assessee and numbermally the Income-tax authorities would number be justified in refusing to an assessee a reasonable opportunity of representing his views when any order to the prejudice of the numbermal procedure laid down in s. 64 1 and 2 of the Act is sought to be made against him, be it a transfer from one Income-tax Officer to another within the State or from an Income-tax Officer within the State to an Income-tax Officer without it, except of companyrse where the very object of the transfer would be frustrated if numberice was given to the party affected. If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to transfer his case under s. 5 7A of the Act and it will also help the companyrt in determining the bona fides of the order as passed if and when the same is challenged in companyrt as mala fide or discriminatory. It is to be hoped that the Income- tax authorities will observe the above procedure wherever feasible. The next point of attack is that the orders which Were made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, in these petitions are omnibus wholesale orders of transfer companying within the mischief of Bidi Supply Co. v. The Union of India, supra , and are, therefore, hit by the majority judgment in that case. The answer of the State is that the orders are valid by virtue of the explanation to s. 5 7A which was added by the Indian Income-tax Amendment Act, 1956 26 of 1956 . It will be remembered that the explanation was added to s. 5 7A in order to get over the situation which was created by the majority judgment in that case and all the proceedings against a particular assessee whether they were in respect of the same year or the previous years which were pending before the Income--tax Officer were sought to be companyprised in the order of transfer as also all proceedings under the Act which may be companymenced after the date of transfer in respect of any year whether it be the year of transfer or any year previous or subsequent thereto. The main structure of s. 5 7A was, however, maintained and the explanation was added thereto in order to expand the companynotation of the word case which was used in s. 5 7A . The manner in which this result was brought about is subject to criticism that the word ,case was thus really equated with the word file and when a case of a particular assessee was transferred under s. 5 7A it was meant that his whole file would be transferred from one Income-tax Officer to another. This inartistic mode appears, however to be adopted by the supposed necessity of maintaining s. 5 7A in the form in which it stood but what we have got to see is whether the desired result has been achieved by adding the explanation in the manner in which it was done. Reading s. 5 7A and the explanation thereto, it is clear that when any case of a particular asssssee which is pending before an Income-tax Officer is transferred from that officer to another Income-tax Officer whether within the State or without it, all proceedings which are pending against him under -the Act in respect of the same year as also previous years are meant to be transferred simultaneously and all proceedings under the Act which may be companymenced after the date of such transfer in respect of any year whatever are also included therei in so that the Income-tax Officer to whom such case is transferred would be in a position to companytinue the pending proceedings and also institute further proceedings against the assessee in respect of any year. The proceedings pending -at the date of transfer can be thus companytinued but in the case of such proceedings the provision in regard to the issue of numberices companytained in the main body of s. 5 7A would apply and it would number be necessary to reissue any numberice already issued by the Income-tax Officer from whom the case is transferred. This provision applies to pending proceedings which have been transferred leaving unaffected the further proceedings which may be companymenced against the assessee after the date of the transfer where fresh numberices would have to be issued. It is, however, companytended that the cases of the assessee which have been already closed in the previous years cannot be reopened by the Income-tax Officer to whom the case of the assessee is thus transferred and the words after the date of transfer in respect of any year occurring at the end of the explanation are sought to be companystrued to mean after the date of the transfer in respect of the year of transfer thus rendering it incompetent to the Income-tax Officer to whom the case is transferred to institute further proceedings in respect of cases of the assessee which have been already closed before the date of transfer. This companytention is, in our opinion, unsound. The words used are in respect of any year and number in respect of the year . Moreover they are to be read with the preceding words may be companymenced and number with the words after the date of transfer. A proper reading of the explanation will be that the inclusive part thereof refers to all proceedings under the Act which may be companymenced in respect of any year after the date of the transfer. The date of the transfer has relation only to the particular year in which the case of the assessee is thus transferred and to attach the words in respect of any year to the words after the date of transfer do number make any sense. The words in respect of any year appropriately go with the words which may companymenced and read in this juxtaposition render the inclusive part of the explanation susceptible of a proper meaning. The language of the explanation read in the manner suggested above is thus sufficient to dispel this companytention of the petitioners. it follows, therefore, that the omnibus wholesale orders of transfer made against the petitioners by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, are saved by the explanation to s. 5 7A and are number unconstitutional and void It remains number to companysider whether the individual orders against the petitioners are discriminatory in fact or are mala fide and in abuse of the power vested in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under s. 5 7A of the Act. Petitions Nos. 211 to 215 of 1956, i.e., the Shiram Jhabarmull group, may be dealt with in the first instance as they have a peculiar characteristic of their own. The orders companyplained against in these petitions were all made by the Commissioner of Income-tax Central, Calcutta, on July 27, 1946, and further proceedings were entertained against the petitioners by the Income-tax Officer, Central Circle IV, Calcutta, immeasurable thereafter. All these proceedings culminated in assessment orders and certificate proceedings under s. 46 2 of the Act were also taken by the authorities against the petitioners for recovery of the tax so assessed before the advent of the Constitution. The question, therefore, arises whether these orders of transfer can be challenged by the petitioners as unconstitutional and void. It is settled that Art. 13 of the Constitution has numberretrospective effect and if, therefore, any action was taken before the companymencement of the Constitution in pursuance of the provisions of any law which was a valid law at the time when such action was taken, such action cannot be challenged and the law under which such action was taken cannot be questioned as unconstitutional and void on the score of its infringing the fundamental rights enshrined in Part III of the Constitution See Keshavan Madhava Menon v. The State of Bombay 1 . The following observations of Das, J., as he then was, at p. 235 of that case, may be appropriately referred to in this companytext As already explained, article 13 1 only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the companymencement of the Constitution. It has numberretrospective effect and if, therefore, an act was done before the companymencement of the Constitution in companytravention of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is number wiped out so far as the past act is companycerned, for, to say that it is, will be to give the law retrospective effect So far as the past acts are companycerned the law exists, numberwithstanding that it does number exist with respect to the future exercise of fundamental rights. See also Syed Qasim Razvi v. The State of Hyderabad 2 and Laxmanappa Hanumanthappa Jamkhandi v. Union of India 1 . It is clear, therefore, that the petitioners are number entitled to companyplain against the said orders of transfer dated July 27, 1946. Petitions Nos. 225 to 229 of 1956, i.e., the Raichur group, and Petitions Nos. 86, 87, 88, 111, 112 and 158 of 1956, i.e., the Amritsar group, all belong to the same category. In the first group, there was an order of transfer on December 21, 1953, passed by the Commissioner of Income-tax, Hyderabad, transferring the cases of the petitioner from the Additional Income-tax Officer, Raichur, to the Income-tax, Officer, Special Circle, Hyderabad. There was, however, an order passed by the Commissioner shortly before May 19, 1955, transferring the cases of the petitioner from the Income-tax 1 1951 S.C.R. 228, 235. 2 1953 S.C.R. 589. 3 1955 1 S.C.R. 769. Officer, Special Circle, Hyderabad, to the main Income-tax Officer, Raichur. The petitioner thus reverted to the Income-tax Officer, Raichur, and it passes ones imagination what possible argument he can urge on the score of inconvenience and harassment. The whole attitude of the petitioner is motivated by an intention to delay the payment of income-tax legitimately due by him to the Revenue trying to take advantage of a mere technicality. In the second group, there were orders passed by the Commissioner of Income-tax transferring the cases of the petitioners from the Income-tax Officer, AWard, Amritsar, or the Income-tax Officer,FWard, Amritsar, to the Income-tax Officer, Special Circle, Amritsar. Both these officers were situated in the same building and under the same roof. The argument of inconvenience and harassment can, under these circumstances, be hardly advanced by them. There is moreover another feature which is companymon to both these groups and it is that numbere of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. v. The Union of India, supra , was pronounced on March 20, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on April 20, 1956, and the Raichur group on November 5, 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly number entitled to invoke the jurisdiction of this Court under Art. 32. It is well settled that such companyduct of the petitioners would disentitle them to any relief at the hands of this Court Vide Halsburys Laws of England, Vol. II, 3rd Ed., p. 140, para 265 Rex v. Tabrum, Ex Parte Dash 1 0. A. 0. K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras and Chief Judge,Court of Small Causes, Madras 2 . The orders of transfer made by the Commissioner of Income- tax or the Central Board of Revenue, as the 1 1907 97 L. T. 551. 2 1927 1. L. R. 50 Mad. 130. case may be, against the three groups of petitioners, viz., Sriram Jhabarmull group, the Raichur group and the Amritsar group, cannot, therefore, be challenged by them as unconstitutional and void This leaves two sets of petitioners, the petitioners in Petitions Nos. 97 97-A of 1956 and the petitioners in Petitions Nos. 44/56 and 85/56. Petitions Nos. 97 97-A of 1956 -The petitioners are oilmill owners, merchants and companymission agents, carrying on business at Sahibganj in the district of Santhal Parganas and have a branch at 97, Lower Chitpur Road, Calcutta. Their cases were referred to the Income-tax Investigation Commission as they were believed to have evaded payment of tax on a substantial amount. They were alleged -to have companycealed income exceeding Rs. 8 lakhs and indulged in business activities spread over a wide area resulting in large profits number disclosed in the books of account or in the various returns filed by them. After the judgment of this Court in Surajmull Mohta Co. v. A. V. Viswanatha Sastri 2 , about 320 cases referred to the Income-tax Investigation Commission under s. 5 4 of Taxation on Income Investigation Commission Act XXX of 1947 were affected and had to be reopened under s. 34 IA of the Income-tax Act. To dispose of these cases, since they involved many back years cases quickly and promptly, special circles without reference to area were created at Bombay and Calcutta, because the existing circles, whose hands were full, companyld number take up this extra work. These 320 cases were distributed between these circles on the basis of the geographical area to which these assessees belonged. The petitioners belonged to Bihar and had a- branch at Calcutta and their cases were, therefore, allotted to one of the Central Circles at Calcutta. Later on in October 1954, this Court struck down S. 5 1 of the Taxation on Income Investigation Commission Act XXX of 1947 in Meenakshi Mills Ltd. v. Viswanatha Sastri. 2 and as a result thereof cases referred under that section and pending with the I 1055 1 S.C. R. 448. 2 1955 I S.C. R. 787. Income-tax Investigation Commission on July 17,1954, companyld number be preceded with under the provisions of that Act. - These cases numbering about 470 had to be reopened under s. 34 1A of the Income-tax Act. The Government thought that as in the earlier lot of cases, it would help speedier disposal of the cases, if they were allotted to Income-tax Officers appointed without reference to area to deal with the same. In addition to the circles already created in Bombay and Calcutta, five more circles at Calcutta and 4 more circles at Bombay and 9 more circles at important centers such as Kanpur, Ahmedabad, Madras and Delhi were set up to deal with all these cases. As a result of the influx of these cases, it was found that the 9 circles at Calcutta had about 280 cases of assessees belonging to Calcutta itself to dispose of and therefore cases number belonging to that area had to be taken out and assigned to one of the newly created circles, Where the work load was low. It was found then that Central Circle VI had a lower work load companypared to other circles and, therefore, the cases of the petitioners were transferred to the Income-tax Officer, Central Circle VI, Delhi. Having regard to these circumstances which are disclosed in the affidavits of Shri V. Gouri Shankar, Under Secretary, Central Board of Revenue, dated November 19, 1956, and December 3, 1956, it is clear that the transfer of the cases of the petitioners, firstly, from the Income-tax Officer, Special Circle, Patna, to the Income-tax Officer, Central Circle XI, Calcutta, and next, from the latter officer to the Income-tax Officer, Central Circle VI, Delhi, were made as a matter of administrative companyvenience only. It further appear from the said affidavits that the examination of accounts and the evidence was done at the places desired by the assessees in order to suit their companyvenience and the Income-tax Officers were instructed accordingly. As a matter of fact the Income-tax Officer, Central Circle VI, Delhi, went to Sahibganj and examined the accounts there in the case of the petitioner No. 1 and when the assessee voluntarily requested the Income-tax Officer to have the examination done at Delhi the assessee had then companye to Delhi for some other work of his the Income-tax Officer promptly posted the case and examined the accounts. If these were the circumstances under which the cases of the petitioners were transferred from Patna to Calcutta and from Calcutta to Delhi and the petitioners were afforded all companyveniences in the matter of the examination of their accounts and evidence, there is numberbasis for the charge that the orders of transfer made against these petitioners were in any manner whatever discriminatory. Petitions Nos. 44 and 85 of 1956 The petitioner in Petition No. 44/56 is Shri A. L. Sud who originally belonged to Hoshiarpur district in Punjab and since 1948 resides and has his office in Calcutta. He is the son of one Shri Bhagwan Das Sud and is a member of the Hindu undivided family styled M S. Bhagwan Das Sud Sons with Shri. Bhagwan Das Sud as the karta thereof. This Hindu undivided family has been carrying on business at Hoshiarpur and at various other places like Bareilly, Calcutta and Bombay. The petitioner has been carrying on business both as the member of the Hindu undivided family and also in his individual capacity since 1946. The said joint family of Bhagwan Das Sud Sons was alleged to have evaded income-tax to a large extent and had inter-related transactions in respect of their dealings, the petitioner being a companyartner of the said joint family. It was, therefore, companysidered necessary in order to have a proper assessment of the petitioners income that his case also should be dealt with by the Income-tax Officer assessing the joint family and the petitioner was informed that, in the matter of hearing, he would be put to least inconvenience. These were the circumstances under which his case was transferred from the Income-tax Officer, Survey Circle, Calcutta, to the Income-tax Officer, Special Circle, Ambala, by an order of the Central Board of Revenue dated June 29, 1955. The case of M S. Bhagwan Das Sud Sons, petitioners in Petition No. 85/56 had already been transferred by the Commissioner of Income-tax from the Income-tax Officer, Hoshiarpur, to the Income-tax Officer, Special Circle, Ambala, by an order under s. 5 7A of the Act dated October 20, 1953. The petitioners had their office at Hoshiarpur in Punjab but their activities were scattered in various parts of India some of them being in Assam, Bombay, Bareilly, Calcutta and Kanpur in respect of the companytracts they undertook with the Government and other parties. They were alleged to have companycealed income assessable to income-tax exceeding Rs. 30 lakhs and it was thought necessary to make proper investigation of their widespread activities resulting in extensive evasion of income-tax. These were the circumstances under which their case was transferred to the Incometax Officer, Special Circle, Ambala, as above. That officer, however, agreed to examine the accounts and evidence at Hoshiarpur itself to suit the companyvenience of the petitioners but the petitioners did number agree on the ground that their Advocate was to companye from Delhi and therefore Ambala would suit them as well. The cases of both the petitioners thus came to be transferred from the respective Income-tax Officers who used to assess them at Calcutta and Hoshiarpur respectively to the Income-tax Officer, Special Circle, Ambala, and all companyveniences were afforded to them in the matter of the examination of their accounts and evidence. The argument of discrimination and inconvenience and harassment thus loses all its force and the orders of transfer made against them cannot be challenged as in any way discriminatory. It may be numbered that in the last mentioned four petitions, viz., Petitions Nos. 97 97-A of 1956 and Petitions Nos. 44/56 and 85/56, the Central Board of Revenue or the Commissioner of Income-tax, as the case may be, instructed the Income-tax Officers companycerned to minimise the inconvenience caused to the assessees and even proceed to their respective residences or places of business in order to examine the accounts and evidence. Inspite of the denials of the assessees in the affidavits which they filed in rejoinder, we presume that such facilities will companytinue to be afforded to them in the future and the inconvenience and harassment which would otherwise be caused to them will be avoided. A humane and companysiderate administration of the relevant provisions of the Income-tax Act would go a long way in allaying the apprehensions of the assessees and if that is done in the true spirit, numberassessee will be in a position to charge the Revenue with administering the provisions of the Act with an evil eye and unequal hand . We have, therefore, companye to the companyclusion that there is numbersubstance in these petitions and they should be dismissed with companyts. There will, be, however, one set of companyts between respondents in each of the petitions and one set of companyts in each group of these petitions, viz., 1 Petitions Nos. 97 97-A of 1956, 2 Petitions Nos. 44/56 and 85/56, Petitions Nos. 86/56, 87/56, 88/56, 111/56, 112/56 and 158/56, 4 Petitions Nos. 211 to 215 of 1956, and 5 Petitions Nos.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 132 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954. G. Sethi, Naunit Lal, with him , for the appellant. 1204 Gopal Singh and P. G. Gokhale, for the respondent. 1955. January 25. The Judgment of the Court was delivered by IMAM J.-This appeal by Nanak Chand companyes by special leave against the judgment of the Punjab 1 High Court. The appellant was companyvicted by the High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was company- firmed. On the facts alleged by the prosecution there can be numberdoubt that Sadhu Ram was killed on the 5th of November, 1953, at about 6-45 P.m. at the shop of Vas Dev P. W. 2. It is alleged that the appellant along with others assaulted Sadhu Ram. The appellant was armed with a takwa. Numerous injuries were found on the person of Sadhu Ram. According to the doctor, who held the postmortem examination, injuries 1, 3 and 4 were due to a heavy sharp edged weapon and companyld be caused by a takwa. It was denied by the prosecution that the deceased was assaulted by any other person with a takwa. According to the Medical evidence, injuries 1, 3 and 4 individually, as well as companylectively, were enough to cause death in the ordinary companyrse of nature. In the Court of Sessions the appellant along with others was charged under section 148 and section 302, read with section 149 of the Indian Penal Code. The Additional Sessions Judge, however, held, that the charge of rioting was number proved. He, accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code. He acquitted the other three accussed There was an appeal by three companyvicted persons to the High Court and the high companyrt companyvicted the appellant alone under section 302 of the Indian Penal Code, companyfirming the sentence of death but altered the companyviction of the other accused from section 302/34 to section 323, Indian Penal Code. it held that the provisions of section 34 of the Indian Penal Code did number apply. 1205 On behalf of the appellant questions of law and questions of fact were urged. It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted. The principal question of law to be companysidered is as to whether the appellant companyld legally be companyvicted for murder and sentenced under section 302, Indian Penal Code when he was number charged with that offence. It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302/149 of the Indian Penal Code, he companyld number be companyvicted for the substantive offence of murder under section 302, Indian Penal Code, without a charge having been framed against him under that section. Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in Barendra Kumar Ghosh v. Emperor 1 and certain decisions of the Calcutta High Court to which reference will be made later on. It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234, 235, 236 237 and 239 of the Code of Criminal Procedure. Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code. The provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did number apply to the facts and circumstances of the present case. Off behalf of the Prosecution, however, it was urged that section 149 did number create any offence at all and therefore numberseparate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant companyld have been companyvicted and sentenced, under section 302 of the Indian Penal Code, although numbercharge for the substantive offence of murder had been framed against him. 1 1925 I.L.R. 52 Cal, 197, 1206 It is necessary, therefore, to examine the provisions of section 149 of the Indian Penal Code and companysider as to whether this section creates a specific offence. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity. Section 149 of the Indian Penal Code reads- If an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly, or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object, every person who, at the time of the companymitting of that offence, is a member of the same assembly, is guilty of that offence. This section postulates that an offence is companymitted by a member of an unlawful assembly in prosecution of the companymon object of that assembly or such as a member of the assembly knew to be likely to be companymitted in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the companymission of the offence, was guilty of that offence. Under this section a person, who is a member of an unlawful assembly is made guilty of the offence companymitted by another member of the same assembly, in the circumstances mentioned in the section, although he had numberintention to companymit that offence and had done numberovert act except his presence in the assembly and sharing the companymon object of that assembly. Without the provisions of this section a member of an unlawful assembly companyld number have been made liable for the offence companymitted number by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be numberconviction of any one of them for an offence which he had number himself companymitted. Similarly under section 150 of the Indian Penal Code, a specific offence is created. Under this section a person need number be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be companymitted by 1207 a member of the unlawful assembly in the circumstances mentioned in the section. Sections 149 and 150 of the Indian Penal Code are number the only sections in that Code which create a specific offence. Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document. Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence. The sentence to be inflicted may be the same as for the principal offence. In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned. Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. Section 195 creates an offence and the person companyvicted of this offence is liable in certain circumstances to be punished in the same manner as a person companyvicted of the principal offence. Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person companyvicted under any one of them would be liable to be punished in the same manner as if he had given false evidence. It was, however, urged on behalf of the Prosecution that section 149 merely provides for companystructive guilt similar to section 34 of the Indian Penal Code. Section 34 reads When a criminal act is done by several persons, in furtherance of the companymon intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. This section is merely explanatory. Several persons must be actuated by a companymon intention and when in furtherance of that companymon intention a criminal act is done by them, each of them is liable for that act as if the act bad been done by him alone. This section does number create any specific offence. As was pointed out by Lord Sumner in Barendra Kumar Ghosh v. Emperor 1 a criminal act means that 1 1925 I.L.R. 52 Cal. 197, 1208 unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence. There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are number to be companyfused. The principal element in section 34 of the Indian Penal Code is the companymon intention to companymit a crime. In furtherance of the companymon intention several acts may be done by several persons resulting in the companymission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is numberquestion of companymon intention in section 149 of the Indian Penal Code. An offence may be companymitted by a member of an unlawful assembly and the other members will be liable for that offence although there was numbercommon intention between that person and other members of the unlawful assembly to companymit that offence provided the companyditions laid down in the section are fulfilled. Thus if the offence companymitted by that person is in prosecution of the companymon object of the unlawful assembly or such as the members of that assembly knew to be likely to be companymitted in prosecution of the companymon object, every member of the unlawful assembly would be guilty of that offence, although there may have been numbercommon intention and numberparticipation by the other members in the actual companymission of that offence. In Barendra Kumar Ghosh v. Emperor 1 Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, section 149 is certainly number otiose,, for in any case it created a specific offence. It postulated an assembly of five or more persons having a companymon object, as named in section 141 of the Indian Penal Code and then the companymission of an offence by one member of it in prosecution of that object and he referred to Queen v. Sabid Ali and 1 1925 I.L.R. 52 Cal, 197, 1209 Others 1 . He pointed out that there was a difference between object and intention, for although the object may be companymon, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, was replaced in section 149 by membership of the assembly at the time of the companymitting of the offence. It was argued, however, that these observations of Lord Sumner were obiter dicta. Assuming though number companyceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing as a whole the provisions of sections 34, 114 and 149 of the Indian Penal Code. On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made, viz. Panchu Das v. Emperor 2 , Reazuddi and Others v. King-Emperor 3 and Emperor v. Madan Mandal and Others . These decisions support the companytention that it will be illegal to companyvict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code., On the other hand, the prosecution relied upon a decision of the. Full Bench of the Madras High Court in Theetkumalai Gounder and Others King-Emperor 5 and the case Queen Empress v. Bisheshar and Others 6 . The decision of the Madras High Court was given in April, 1924, and reliance was placed upon the decision of the Allahabad High Court. The decision of -the Privy Council in Barendra Kumar Ghoshs case was in October, 1924. The Madras High Court, therefore, did number have before it the decision of the - Privy Council. It is impossible to, say what view might have been expressed 1 1873 20 W.R. Cr. 5. 2 1907 I.L.R. 34 Cal. 698. 3 1961 6 O.W.N 98. 4 1914 I.L.R. 41,Cal. 662. 5 1924 I.L.R. 47 Mad. 746. 6 1887 T.L.R. 9 All. 645. 1210 by that companyrt if the Privy Councils judgment in the aforesaid case had been available to the companyrt. The view of the Calcutta High Court had been numbericed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen 1 was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code. Because of this it was thought advisable to refer the matter. to a Full Bench. Two questions were referred to the Full Bench 1 When a charge omits section 149, Indian Penal Code, and the companyviction is based on the provisions of that section, is that companyviction necessarily bad, or does it depend on whether the accused has or has number been materially rejudiced by the omission? 2 When a charge has been framed under sections 326 and 149, Indian Penal Code, is a companyviction under section 326, Indian Penal Code, necessarily bad, or does this also depend on whether the accused has or has number been materially prejudiced by the form of the charge? -The Full Bench agreed with the view expressed by Sir John Edge in the Allahabad case that section 149 created numberoffence, but was, like section 34, merely declaratory of a principle of the companymon law, and its object was to make it clear that an accused who companyes within that section cannot put forward as a defence that it was number his hand which inflicted the grievous hurt. It was observed by Spencer, J. that a person companyld number be tried and sentenced under section 149 alone, as numberpunishment is provided by the section. Therefore the omission of section 149 from a charge does number create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for every distinct offence of which any person is accused there shall be a separate charge. They did number agree, with the general statement in Reazuddis case 2 that it is, settled law that when a person is charged by implication under section 149, he cannot be companyvicted of the substantive offence. A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc. is for a distinct and separate offence from that under section 1 1928 18 L.W. 946. 2 1901 6 W.N. 98. 1211 302, read with section 149 or section 325, read with section 149, etc. and to that extent the Madras view is incorrect. It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an offence because it does number itself provide for a punishment. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable number possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence companymitted by one of them in the prosecution of the companymon object at once subjects all the members to the punishment prescribed for that offence and the relative sentence. Reliance was also placed upon the decision of the Patna High Court in Ramasray Ahir v. King-Emperor 1 as well as the decision of the Allahabad High Court in Sheo Ram and Others v. Emperor 1 . In the former case the decision of the Privy Council in Barendra Kumar Ghoshs case was number companysidered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge. In the latter case the Allahabad High Court definitely declined to answer the question as to whether the accused charged with an offence read with section 149, Indian Penal Code, or with an offence read with section 34, Indian Penal Code, companyld be companyvicted of the substantive offence only. After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the companyrect view namely, that a person charged with an offence read with section 149 cannot be companyvicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure. It was urged that in view of the decision of this Court in Karnail Singh and another v. State of Punjab 1 a companyviction under section 302, read with see- 1 1928 I.L.R. 7 Patna 484. 2 A.I.R. 1948 All. 162, 3 1954 S.C.R. 904, 1212 tion 149, companyld be companyverted into a companyviction under section 302/34 which the trial Court did. There companyld be numbervalid objection, therefore, to companyverting a companyviction under section 302/34 into one under section 302 which the High Court did. This argument is unacceptable. The High Court clearly found that section 34 was number applicable to the facts of the case and acquitted the other accused under section 302/34, that is to say the other accused were wrongly companyvicted by the trial companyrt in that way but the appellant should have been companyvicted under section 302. The High Court companyld number do what the trial companyrt itself companyld number do, namely, companyvict under section 302, as numberseparate charge had been framed under that section. It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person companyld be companyvicted of an offence which he is shown to have companymitted although he was number charged with it. Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code. The provisions of section 236 can apply only in cases where there is numberdoubt about the facts which can be proved but a doubt arises as to which of several offences have been companymitted on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In these circumstances if there had been an omission to frame a charge, then under section 237, a companyviction companyld be arrived at on the evidence although numbercharge had been framed. In the present case there is numberdoubt about the facts and if the allegations against the ap- pellant that he bad caused the injuries to the deceased with takwa was established by evidence, then there companyld be numberdoubt that the offence of murder bad been companymitted. There was numberroom for the application of section 236 of the Code of Criminal Procedure. It had been argued on behalf of the prosecution that numberfinding or sentence pronounced shall be deemed invalid merely on the ground that numbercharge was framed. Reliance was placed on the provisions of section 535 of the companye of criminal procedure 1213 Reference was also made to the provisions of section 537 of that Code. Section 535 does permit. a companyrt of appeal or revision to set aside the finding or sentence if in its opinion the number-framing of a charge has resulted in a failure of justice. Section 537 also permits a companyrt of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has, in fact, occasioned a failure of justice. The explanation to the section numberdoubt directs that the companyrt shall have regard to the fact that the objection companyld and should have been raised at an earlier stage in the proceedings. In the present case, however, there is numberquestion of any error, omission or irregularity in the charge because numbercharge under section 302 of the Indian Penal Code was in fact framed Section 232 of the Code of Criminal Proce. dure permits an appellate companyrt or a companyrt of revision, if satisfied that any person companyvicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and number an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable we are satisfied that, in the circum- stances of the present case, the irregularity is number curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302, read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was number charging the appellant with the offence of murder and to companyvict him for murder and sentence him under section 302 of the Indian Penal Code was to companyvict him of an offence with which he had number been charged. In defending himself the appellant was number called upon to meet such a charge and in his defence he may well have companysidered it unnecessary to companycentrate on that part of the prosecution ease, Attention has been 1214 drawn to the Medical -evidence. With reference to injury No. I the doctor stated that the wounds - were number very clean-cut. It is further pointed out that the other incised injuries on the head were bone deep. The bone, however, had number been out. Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound. Reference was made to Glasgow on Medical Jurisprudence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound. These wounds are usually found over the bone which is thinly companyered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. It is also pointed that Vas Dev P.W. 2 bad admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but numbertakwa blow was given outside the shop. Prakash Chand P.W. 4, another eye-witness, also- admitted that Mitu had taken the takwa from the appellant when they had companye out of the shop. It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was number prejudiced by the number-framing of a charge under section 302, Indian Penal Code.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petition No. 22 of 1955. Under Article 32 of the Constitution for a Writ in the nature of habeas companypus. Sadhan Chandra Gupta The Petitioner also present for the petitioner. C. Setalvad, Attorney-General of India B. Sen, and I. Shroff, for P. K. Bose, with him for the respondents. 1955. February 23. The Judgment of the Court was delivered by BOSE J.-The petitioner, Hans Muller, who is number a citizen of India, and who is said to be a West German subject, was arrested by the Calcutta Police on the 18th September, 1954 and was placed under preventive detention. The order was made by the West Bengal Government under section 3 1 of the Preventive Detention Act of 1950 Act IV of 1950 on the ground that his detention was with a view to making arrangements for his explusion from India. The grounds were served on the 22nd of September, 1954. The second ground runs- That you are a foreigner within the meaning of the Foreigners Act, 1946 Act XXXI of 1946 and that it has become necessary to make arrangements for your expulsion from India and for this purpose you are required to be detained under section 3 1 b of the Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central Government. On the day after his arrest, namely on the 19th September, 1954 he wrote to the Consul-General of West Germany at Calcutta saying that be had been arrested and- asking for an early interview. This was granted. On the 21st of September 1954, the petitioner wrote to the West Bengal Government asking it to be kind enough to pass an order for our immediate repatriation from India 1287 and to do the necessary arrangement for our transmission out of India. On the 9th of October 1954 the Calcutta Police handed the petitioners passport over to the West German Consul at the Consuls request. This passport was issued to the petitioner by the West German Government at Nurenburg in West Germany on the 27th of November 1953. When the passport was handed over to the West German Consul it had on it a number of visas, including an Indian, all of which had on them the companydition while the passport is valid. When the West German Consul got the passport he made the following entry on it Valid only for the return voyage to the Federal Republic of Germany until the 8th January 1955. The petitioner companyplains that this invalidated all the other visas and as, according to this fresh entry, the passport ceased to be valid after the 8th of January 1955, he number has numberpassport. On the same day, the 9th of October 1954, the West German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in companynection with a number of frauds and that legal proceedings in companynection with those warrants are still pending. The Consul also said that he had received information that similar charges had been made against the petitioner in Lebanon and in Egypt and be companycluded- The Government of the Federal Republic of Germany will apply for Mullers extradition through diplomatic channels whilst at the same time submitting the supporting documents. As this will require a certain amount of time, I am directed to give you advance information of this step and hereby request the Government of West Bengal to issue a provisional warrant of arrest which ensures Mullers detention up to the date of his extradition to Germany. This Consulate has already arranged for Mullers repatriation by the German boat KANDELFELS due to arrive in Calcutta on the 19th instant. All 1288 expenses in companynection with Mullers repatriation will be borne by the Government of the Federal Republic of Germany. On receipt of this letter the Secretary to the Government of West Bengal recorded the following numbere I suppose there would be numberobjection to our keeping Muller in detention till the 19th instant. We must issue order of his release as soon as his boat is ready to sail. The West Bengal Government had numberpower to deport the petitioner. Only the Central Government companyld do that, and up till the 20th of October the Central Government had number passed any orders. On that date the petitioner applied to the High Court of Calcutta for a writ in the nature of habeas companypus under section 491 of the Criminal Procedure Code. Because of that, and because this matter has been pending in the companyrts ever since, numberorders have yet been issued for his expulsion from India though we are told by the learned Attorney-General that they have been made and signed but are being held in abeyance pending the decision of this petition. The petitioner companytended that his detention was invalid for the following, among other, reasons Because section 3 1 b of the Preventive Detention Act, the section under which the order was. made, is ultra vires the Constitution on three grounds- a that it companytravenes articles 21 and 22 b that it companytravenes article 14, and c that it was beyond the legislative companypetence of Parliament to enact such a law Because section 3 1 b is number a law of preventive detention within the meaning of article 22 3 and therefore it companytravenes article 22 1 and 2 and Because, in any event, the order was made in bad faith. The High Court decided against the petitioner on all points and dismissed the petition on 10-12-1954. He thereupon made the present petition to this Court on the same grounds, presumably under article 32 of the Constitution. It was filed oil 10-1-1955. 1289 We will first companysider the vires of section 3 1 b . It is in these terms The Central Government or the State Government may b if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 XXXI of 1946 , that with a view to regulating his companytinued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. The detention order is by a State Government and number by the Centre. The portion of the section on which the order is based is the part that gives a State Government power to make an order of detention against a foreigner, on satisfaction, with a view to making arrangements for his expulsion from India. The companypetence of the Central Legislature to enact a law dealing with this aspect of preventive detention is derived from Entry 9 of the Union List read with Entry 10, The portion of Entry 9 which companycerns us is as follows Preventive detention for reasons companynected with Foreign Affairs The scope of the expression Foreign Affairs is indicated in Entry 10 Foreign Affairs all matters which bring the Union into relation with any foreign companyntry. It is well settled that the language of these Entries must be given the widest scope of which their meaning is fairly capable because they set up a machinery of Government and are number mere Acts of a legislature subordinate to the Constitution. Giving Entry 9 its widest range we find it impossible to hold that legislation that deals with the right of a State to keep foreigners under preventive detention without trial does number bring the Union into relation with a foreign companyntry. Every companyntry claims the right to the allegiance of its subjects wherever they may be and in return guarantees to them the right of diplomatic 1290 protection when abroad. It is therefore the privilege, and the anxiety, of every civilised nation to keep vigilant watch over its subjects abroad and to ensure for them, as far as that is possible through diplomatic channels, fair play and justice administered along lines of what is called, broadly for want of a better term, natural justice. A foreign State has a very direct interest in what is done to its subjects in a foreign land. Therefore, legislation that companyfers jurisdiction upon Governments in this companyntry to deprive foreigners of their liberty cannot but be a matter that will bring the Union into relation with foreign States, particularly when there is numberpublic hearing and numbertrial in the ordinary companyrts of the land. But in this particular case, the relation is even more direct, for the provision here is for detention with a view to making arrangements for a foreigners expulsion from India. A foreign State has a very deep interest in knowing where and how its subjects can be forcibly expelled against their will. The legislative companypetence of Parliament to deal with this question is, we think, clear and this companyers number only section 3 1 b of the Preventive Detention Act but also the Foreigners Act, 1946 Act XXXI of 1946 in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land. The learned Attorney-General sought to base the legislative companypetence upon other Entries as well and claimed that Parliament is number companyfined to Entry 9 in List I and Entry 3 in List III the only Entries that touch directly on preventive detention . He claimed, for example, that laws for the preventive detention of foreigners can also be based upon Entry 17 in List I which relates to aliens and Entry 19 which relates to expulsion from India and also upon the portions of Entries 9 in List I and 3 in List III that deal with the security of India and the security of the State and the maintenance of public order, provided always that they companyply with articles 21 and 22 of the Constitution, We express numberopinion 1291 about this as we can uphold the portion of the Statute that is impugned here on the narrower ground we have set out above. The next question is whether the limitations imposed on this power by articles 21 and 22 have been observed. Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty except according to procedure established by law, and article 22 prescribes the minimum that the procedure established by law must provide. There can be numberarrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., number can he be detained beyond that period without the authority of a magistrate. The only exceptions are 1 enemy aliens and 2 any person who is arrested or detained under any law providing for preventive detention. There are further limitations, but they were number invoked except that the learned Attorney-General explained that the unrestricted power given by section 4 1 of the Foreigners Act, 1946 a pre-constitution measure to companyfine and detain foreigners became invalid on the passing of the Constitution because of articles 21 and 22. Therefore, to bring this part of the law into line with the Constitution, section 3 1 b of the Preventive Detention Act was enacted. It was more companyvenient to insert new provisions about the companyfinement and detention of foreigners in the Preventive Detention Act rather than amend the Foreigners Act because the Preventive Detention Act was a companyprehensive Act dealing with preventive detention and was framed with the limitations of articles 21 and 22 in view. It was urged on behalf of the petitioner that section 3 1 b of the Preventive Detention Act is-not reasonably related to the purpose of the Act, namely, preventive detention. It was argued that preventive detention can only be for the purpose of prevent- 1292 ing something and when you seek to make arrangements for a mans expulsion from the companyntry you are number preventing anything, or trying to, but are facilitating the performance of a positive act by the State, namely the act of expulsion. We do number agree and will first examine the position where an order of expulsion is made before any steps to enforce it are taken. The right to expel is companyferred by section 3 2 c of the Foreigners Act, 1946 on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary for the effective exercise of such power is companyferred by section 11 1 , also on the Central Government. There is, therefore, implicit in the right of expulsion a number of ancillary rights, among them, the right to prevent any breach of the order and the right to use force and to take effective measures to carry out those purposes. Now the most effective method of preventing a breach of the order and ensuring that it is duly obeyed is by arresting and detaining the person ordered to be expelled until proper arrangements for the expulsion can be made. Therefore, the right to make arrangements for an expulsion includes the right to make arrangements for preventing any evasion or breach of the order, and the Preventive Detention Act companyfers the power to use the means of preventive detention as one of the methods of achieving this end. How far it is necessary to take this step in a given case is a matter that must be left to the discretion of the Government companycerned, but, in any event, when criminal charges for offences said to have been companymitted in this companyntry and abroad are levelled against a person, an apprehension that he is likely to disappear and evade an order of expulsion cannot be called either unfounded or unreasonable. Detention in such circumstances is rightly termed preventive and falls within the ambit of the Preventive Detention Act and is reasonably related to the purpose of the Act. The next question is whether any steps can be 1293 taken under the law in anticipation of an order that is about to be made, or which may be made, by the companypetent authority on the recommendation of another authority seized with certain powers of Government and yet number companypetent to make an order of this kind. The Foreigners Act companyfers the right of expulsion on the Central Government. Therefore, a State Government has numberright either to make an order of expulsion or to expel. It was argued that if a State Government cannot expel or make an order of expulsion, then it cannot be permitted to detain with a view to making arrangements for the expulsion. It was companytended that the only authority that can make such arrangements, or direct that they should be made, is the Central Government. It was also argued that until an order of expulsion is made by the proper authority, numberone can start making arrangements for its due execution the arrangements companytemplated by section 3 1 b must follow and number precede the order, especially as they involve curtail- ment of a mans personal liberty, for the order may never be made and it would be wrong to permit an authority number authorised to decide the question to detain a man of its own motion till somebody else has time and leisure to companysider the matter. That would be inconsistent with the fundamental right to liberty guaranteed by the Constitution to citizen and foreigner alike. Again, we do number agree. The Preventive Detention Act expressly companyfers the right to detain -with a view to making, arrangements for the expulsion upon both the State and the Central Government and the satisfaction required by section 3 1 b can be of either Government. The right to satisfy itself that the drastic method of preventive detention is necessary to enable suitable arrangements for expulsion to be made is therefore expressly companyferred on the State Government and as a State Government cannot expel, the companyferral of the right can only mean that the State Government is given the power to decide and to satisfy itself whether expulsion is desirable or neces- 1294 sary, and if it thinks it is, then to detain until proper arrangements for the expulsion are made, one of them, and an essential one, being reference to the Central Government for final orders. It is evident that the authorities must be vested with wide discretion in the present field where international companyplications might easily follow in a given case. Unless a State Government has authority to act in anticipation of orders from the Centre, it might be too late to act at all. We number turn to the argument that section 3 1 b is ultra vires because it offends article 14 of the Constitution. Actually, the attack here is on section 3 2 c of the Foreigners Act but as section 3 1 b of the Preventive Detention Act is companysequential on that it is also involved. Section 3 1 b permits detention of a foreigner with in the meaning of the Foreigners Act, 1946. The definition of foreigner is given in section 2 a of that Act and is as follows foreigner means a person who- is number a natural-born British subject as defined in sub- sections 1 and 2 of section 1 of the British Nationality and Status of Aliens Act, 1914, or ii has number been granted a certificate of naturalization as a British subject under any law for the time being in force in India. The rest of the definition is number material. The argument is that this differentiates between foreigner and foreigner. It takes two classes of British subjects who are number as much foreigners as anyone else number an Indian citizen, out of the class of foreigners for the purposes of-preventive detention and for the purposes of expulsion under the Foreigners Act. This, it was companytended, offends article 14 which provides that The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. This argument is easily answered by the classification rule which has been repeatedly applied in this Court. The classification of foreigners into those who are British subjects of the kind set out in the definition, and others, so as to make the former number 1295 foreigners for the purposes of the Foreigners Act and the Preventive Detention Act, is a reasonable and rational classification and so does number, on the authority of our previous decisions, offend article 14. There is numberindividual discrimination and it is easily understandable that reasons of State may make it desirable to classify foreigners into different groups. We repel this argument. It was then said that at any rate there is differentiation in the same group because the definition discriminates between classes of British subjects inter se. It was pointed out that the British Nationality and Status of Aliens Act, 1914 was repealed in 1948 and re-enacted in another form but as our Act has retained the 1914 definition that is the one we must companysider. We do number intend to examine this companytention because, even if it be true that there is the discrimination alleged, namely between one class of British subject and another, that will number give the petitioner a right of challenge on this ground. He is number a British subject and so is number a member of the only class that companyld claim to be aggrieved on this score. This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under article 32 are those who are aggrieved thereby. As the petitioner is number a person aggrieved, so far as this point is companycerned, he number being a British subject, he cannot attack the section on this ground. We hold that the impugned portions of section 3 1 b of the Preventive Detention Act and section 3 2 c of the Foreigners Act, 1946 are intra vires. We number turn to a wider question that brings us to the fringe of International law. It arises in this way. The good faith of the Government of the State of West Bengal in making the order of detention was challenged on the following, among other, grounds. It was argued that the real object of Government in companytinuing the detention was to keep the petitioner in custody so that it would be in a position to hand him over to the West German authorities as soon as a suitable German boat arrived. It will be remembered 1296 that the West German Government wants the petitioner for offences which he is alleged to have companymitted in West Germany and that the West German Consul at Calcutta wrote to the West Bengal Government on 9-10-1954 asking that Government to issue a provisional warrant of arrest against the petitioner and to keep him in custody until the West German Government companyld initiate extradition proceedings against him, and added that the West German Consulate at Calcutta had already arranged for his repatriation on a German boat that was to arrive on the 19th of October 1954. On receipt of this letter, the Secretary of the West Bengal Government recorded a numbere saying that he supposed there would be numberobjection to the West Bengal Government keeping the petitioner in detention till the 19th. It was said that the companynection between the letter, the expected arrival of the boat on the 19th and the Secretarys proposal to keep the petitioner till that date, was obvious. The attack on the good faith of the West Bengal Government at this point was two-fold. First, it was said that whatever the original intention of the West Bengal Government may have been, when the West German Consuls letter was received, the object of the detention was numberlonger for the purpose of making arrangements for the petitioners expulsion but for keeping him in custody till the West German Government was in a position to companymence extradition proceedings that, it was said, was an abuse of the Preventive Detention Act and was number justified by any of its provisions. The second ground of attack was that, if that was number the object, then, very clearly, the idea was to hand the petitioner over to the German authorities on a German boat without the formality of extradition proceedings and without giving the petitioner a chance to defend himself and show that be companyld number be extradited. That, it was said, made the matter worse than ever. It was denied that the petitioner had companymitted any offence in West Germany or any- where else. He claimed to be a companymunist and said that the real object of the West German Government 1297 was to subject him to political persecution the moment they companyld lay bands on him. The companytention was that once an order of extradition is asked for, a foreigner cannot be handed over to the Government seeking his extradition except under the Extradition Act. The learned Attorney-General companytended very Cc strongly that this question was academic and should number be companysidered because numberorder of expulsion had yet been served on the petitioner and numberone knows the terms of the order. We do number think it is in view of what the learned Attorney-General told us, namely that an order of expulsion has actually been made and signed but is kept in abeyance pending our deci- sion. We see numberforce in the first part of the petitioners argument. We are at bottom companysidering the question of the West Bengal Governments good faith. The order of detention was made before the West German Consul wrote his letter, so there was numberconnection between that letter and the order. After that there is numbermaterial to indicate that the West Bengal Government changed its mind and companytinued the deten- tion for another purpose. The numbere referred to is the numbere of a Secretary to Government and embodies his suggestion about what should be done. It cannot be used either as an order of Government itself or as an indication of its mind. The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is any law in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him. Article 19 of the Constitution companyfers certain fundamental rights of freedom on the citizens of India, among them, the right to move freely throughout the territory of India and to reside and settle in any part of India, subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No company- 1298 responding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is companyferred by article 21 which is in the following terms No person shall be deprived of his life or personal liberty except according to procedure established by law. Entries 9, 10 17, 18 and 19 in the Union List companyfer wide powers on the Centre to make laws about among other things, admission into and expulsion from India, about extradition and aliens and about preventive detention companynected with foreign affairs. Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is expressly companyferred also, it is to be observed that extradition and expulsion are companytained in separate, entries indicating that though they may overlap in certain aspects, they are different and distinct subjects. And that brings us to the Foreigners Act which deals, among other things, with expulsion, and the Extradition Act which regulates extradition. The Foreigners Act companyfers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is numberprovision fettering this discretion in the Constitution, an unrestricted right to expel remains. The law of extradition is quite different. Because of treaty obligations it companyfers a right on certain companyntries number all to ask that persons who are alleged to have companymitted certain specified offences in their territories, or who have already been companyvicted of those offences by their companyrts, be handed over to them in custody for prosecution or punishment. But despite that the Government of India is number bound to companyply with the request and has an absolute and unfettered discretion to refuse. There are important differences between the two Acts. In the first place, the Extradition Act applies to everybody, citizen and foreigner alike, and to every class of foreigner, that is to say, even to foreigners who are number nationals of the companyntry asking for 1299 extradition. But, as has been seen, because of article 19 numbercitizen can be expelled as opposed to extradition in the absence of a specific law to that effect and there is numbere also, the kind of law touching expulsion as opposed to extradition that companyld be made in the case of a citizen would have to be restricted in scope. That is number the case where a foreigner is companycerned because article 19 does number apply. But a citizen who has companymitted certain kinds of offences abroad can be extradited if the formalities prescribed by the Extradition Act are observed. A foreigner has numbersuch right and he can be expelled without any formality beyond the making of an order by the Central Government. But if he is extradited instead of being expelled, then the formalities of the Extradition Act must be companyplied with. The importance of the distinction will be realised from what follows and that applies to citizen and foreigner alike. The Extradition Act is really a special branch of the law of Criminal Procedure. It deals with criminals and those accused of certain crimes. The Foreigners Act is number directly companycerned with criminals or crime though the fact that a foreigner has companymitted offences, or is suspected of that, may be a good ground for regarding him as undesirable. Therefore, under the Extradition Act warrants or a summons must be issued there must be a magisterial enquiry and when there is an arrest it is penal in character and-and this is the most important distinction of all-when the person to be extradited leaves India he does number leave the companyntry a free man. The police in India hand him over to the police of the requisitioning State and he remains in custody throughout. In the case of expulsion, numberidea of punishment is involved, at any rate, in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases. But the right is number his. Under the Indian law, the matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port or place of departure and can place him on a particular ship or plane. See sections 3 2 b and 6 of the Foreigners 1300 Act . Whether the Captain of a foreign ship or plane can be companypelled to take a passenger he does number want or to follow a particular route is a matter that does number arise and we express numberopinion on it. But assuming that he is willing to do so, the right of the Government to make the order vis- a-vis the man expelled is absolute. This may number be the law in all companyntries. Oppenheim, for example, says that in England, until December 1919, the British Government bad numberpower to expel even the most dangerous alien without the recommendation of a companyrt, or without an Act of Parliament making provision for such expulsion, except during war or on an occasion of imminent national danger or great emergency. Oppenheims International Law, Vol. 1, 7th edition, page 631 . But that is immaterial, for the law in each companyntry is different and we are companycerned with the law as it obtains in our land. Here the matter of expulsion has to be viewed from three points of view 1 does the Constitution permit the making of such a law? 2 does it place any limits on such laws? and 3 is there in fact any law on this topic in India and if so, what does it enact? We have already examined the law making power in this behalf and its scope, and as to the third question the law on this matter in India is embodied in the Foreigners Act which gives an unfettered right to the Union Government to expel. But there is this distinction. If the order is one of expulsion, as opposed to extradition, then the person expelled leaves India a free man. It is true he may be apprehended the moment he leaves, by some other power and companysequently, in some cases this would be small companysolation to him, but in most cases the distinction is substantial, for the right of a foreign power to arrest except in its own territory and on its own boats is number unlimited. But however that may be, so far as India is companycerned, there must be an order of release if he is in preventive custody and though he may be companyducted to the frontier under detention he must be permitted to leave a free man 1301 and cannot be handed over under arrest. In a case of extradition, he does number leave a free man. He remains under arrest throughout and is merely handed over by one set of police to the next. But in that event, the formalities of the Extradition Act must be companyplied with. There must be a magisterial enquiry with a regular hearing and the person C sought to be extradited must be afforded the right to submit a written statement to the Central Government and to ask, if he so chooses, for political asy- lum also be has the right to defend himself and the right to companysult, and to be defended by, a legal practitioner of his choice. Article 22 1 Of companyrse, he can also make a representation against an order of expulsion and ask for political asylum apart from any Act but those are number matters of right as under the Extradition Act. Our companyclusion is that the Foreigners Act is number governed by the provisions of the Extradition Act. The two are distinct and neither impinges on the other. Even if there is a requisition and a good case for extradition, Government is number bound to accede to the request. It is given an unfettered right to refuse. Section 3 1 of the Extradition Act says- the Central Government may, if it thinks fit. Therefore, if it chooses number to companyply with the request, the person against whom the request is made cannot insist that it should. The right is number his and the fact that a request has been made does number fetter the discretion of Government to choose the less cumbrous procedure of the Foreigners Act when a foreigner is companycerned, provided always, that in that event the person companycerned leaves India a free man. If numberchoice had been left to the Government, the position would have been different but as Government is given the right to choose, numberquestion of want of good faith can arise merely because it exercises the right of choice which the law companyfers. This line of attack oil the good faith of Government falls to the ground. The remaining grounds about want of good faith 1302 that were raised in the petition were number seriously pressed and as they are of numbersubstance we need number discuss them.

Case appeal was rejected by the Supreme Court

CiviL APPELLATE JURISDICTION Civil Appeal No. 215 of 1954. Appeal by Special Leave from the Judgment and Order dated the 23rd day of August 1954 of the High Court of Judicature at Bombay in Special Civil Application No. 1665 of 1954 under Article 226 of the Constitution of India. B. Kotwal, J. B. Dadachanji and Rajinder Narain, for the appellant. Naunit Lal, for respondents Nos. 1 to 3. 1955. February 22. The Judgment of the Court was delivered by SINHA J.-This is an appeal by special leave against the judgment and order dated the 23rd August 1954 of the High Court of Judicature at Bombay, dismissing the appellants petition for a writ of quo warranto or any other appropriate writ directed against the election of the 2nd and 3rd respondents as President and Vice-President respectively of the Gadag-Betgeri 1271 The facts of this case are number in dispute and may shortly be stated as follows The 1st respondent is a municipality governed by the provisions of the Municipal Boroughs Act Bombay Act XVIII of 1925 which 7 hereinafter shall be referred to as the Act for the sake of brevity. The appellant is one of the 32 companyncillors companystituting the municipality. The last general election to the municipality took place on the 7th May 1951. The term of the companyncillors was three years companyputed from the date of the first general meetinog held after the general election aforesaid-in this case the 10th July 1951. In that meeting the 4th and 5th respondents were elected President and Vice-President respectively of the municipality for a term of three years. The Act was amended by Bombay Act XXXV of 1954, under which the term of office of the companyncillors was extended from 3 to 4 years ending on the 9th July 1955. As the term of respondents 4 and 5 aforesaid was to expire at the end of three years from the 10th July 1951 and as the term of the municipality was extended by one year under the amending Act aforesaid, the vacancies thus occurring bad to be filled up by a fresh election of President and Vice-President. The Collector therefore called a special general meeting of the municipality to be held on the 30th July 1954 to elect a President and Vice-President for the remaining period of the quadrennium. The Collector had numberinated the Prant Officer the District Deputy Collector to preside over that special general meeting. On the 30th July 1954 the Prant Officer under instructions from the Collector adjourned the meeting to the 3rd August 1954 without transacting any business, the only item on the agenda being the election of the President and Vice-President. The 3rd respondent raised a point of order against the adjournment but the presiding officer aforesaid overruled that objection. Hence the special general meeting was held on the 3rd August 1954. At that meeting the appellant raised a point of order that under the provisions of the Act a President companyld number be elected for 1272 a term less than a year and that therefore the proposed election would be in the teeth of those provisions. The presiding officer who was the same person who had adjourned the meeting on the 30th July 1954 overruled that objection too. Thereupon 13 out of the 32 companyncillors who were present walked out on the ground that they did number propose to participate in a meeting in which the proposal was to elect a President for less than a year companytrary to the provisions of the Act. The appellant was one of those 13 companyncillors who walked out. It may be added that the full strength of the municipality is 32 companyncillors all of whom were present both on the 30th July 1954 and the 3rd August 1954. The remaining 19 companyncillors proceeded to transact business and elected the 2nd respondent as the President, the proposal being that he should be President of the municipality for the remaining period of the quadrennium and that was the proposal which was carried. Immediately after the election of the President another meeting was held for the election of the Vice-President under the presidency of the newly elected President the 2nd respondent . The appellant raised the same point of order as he had done in the case of the election of the President and that was also overruled. Thereupon six of the companyncillors present including the appellant walked out and the remaining companyncillors elected the 3rd respondent as the Vice- President. The appellant moved the High Court of Bombay under art. 226 of the Constitution for a writ of quo warranto or any other appropriate writ or order or direction against the 2nd and 3rd respondents restraining them from usurping the office of the President and Vice-President respectively of the opponent No. I Municipality and restraining them from performing any duties and from exercising any powers as President and Vice-President respectively. The High Court held that the election of the 2nd and 3rd respondents was number illegal and dismissed the application. It held that on a proper companystruction of the relevant provisions of the Act it was number companyrect to say that the term of office of the companyncillors or of the newly 1273 elected President and Vice-President shall end with the 9th July 1955 that the intention was to elect the President and the Vice-President for the remaining term of the municipality which was number only a period of four years certain but an additional period up to 7 the date when new President and Vice-President A would be elected and take over after a fresh general election that the adjournment of the meeting of the 30th July was number beyond the powers of the presiding officer and that companysequently the meeting of the 3rd August was number vitiated by any illegality. It was also pointed out by the High Court that all the companyncillors companystituting the municipality had numberice of the adjourned meeting and did as a matter of fact attend that meeting and that even if there was any irregularity in the adjournment on the 30th July 1954 that did number affect the illegality of the adjourned meeting and the business transacted therein. The appellant moved the High Court for leave to appeal to this companyrt but that application was rejected. The appellant then applied to this companyrt for special leave to appeal which was granted on the 3rd September 1954. It has been argued on behalf of the appellant that the meeting held on 3rd August 1954 as aforesaid was invalid for the reasons 1. that it was number an adjourned meeting inasmuch as the meeting of the 30th July 1954 had number been validly adjourned, 2. that it had number been called by the Collector, and 3. that the written numberice required by section 35 3 had number been given and in any event, had number been served and published as required by law. Secondly it was urged that the meeting of the 3rd August being thus invalid., the business transacted at that meeting, namely, the election of the President was equally invalid. Thirdly it was urged that the election of the President being invalid, the meeting held that very day under the presidency of the President thus elected was also invalid and the election of the Vice-President companysequently was illegal. It was 1274 further argued that the election of the President and the Vice-President being in violation of section 19 of the Act was invalid on that ground also and finally, that the amendment of section 19 by the amending Act LIV of 1954 after leave to appeal had been granted by this companyrt companyld number affect the present proceedings which were then pending even though the amending Act purported to make it retrospective. On behalf of respondents 1, 2 and 3 who only have appeared in this companyrt, it has been urged that a President and Vice- President companyld be elected for a term of less than one year as section 19 of the Act was subject to section 23 1 A that in any view of the matter, section 19 as amended by the amending Act LIV of 1954 rendered the election beyond question as the Act in terms was meant to validate all elections held between the passing of the amending Act XXXV of 1954 and the amending Act LIV of 1954 that the presiding officer had inherent, if number statutory power to adjourn the meeting of the 30th July 1954 and that in any event the meeting held on the 3rd August 1954 companyld be treated as a fresh meeting called by the Collector and that any irregularity in serving the numberice or in the appointment of the presiding officer was cured by the provisions of section 57 of the Act. It was also argued that the appellant was number the companyncillor who had objected to the adjournment of the meeting of the 30th July and companyld number therefore object to it at a later stage. Finally it was argued that the appellant had numberright to a writ or order prayed for as he had number been injured in any sense. It would thus appear that there are two main questions in companytroversy between the parties, namely, 1 whether the meeting of the 3rd August, 1954 had been validly held and 2 whether the president and the vice-president having been elected for the remaining period of the quadrennium had been validly elected. There are a number of subsidiary questions bearing upon these two main questions which have been canvassed before us, 1275 A good deal of argument was addressed to us companytending that the presiding officer had numberpower to adjourn the meeting of the 30th July 1954 in view of the provisions of section 35 11 of the Act. In this companynection reference was also made to the proviso to section 19-A 2 . Those provisions, it was argued,, point to the companyclusion that the powers of the presiding officer are the same as those of the president of a municipality when presiding over an ordinary meeting of the municipality except that section 35 11 relating to adjournments had been qualified only to this extent by the proviso aforesaid, that the Collector or the officer presiding over the meeting for the purpose of holding an election of the president or vice-president may refuse to adjourn such a meeting in spite of the wishes of the majority of the members present to the companytrary. It was also argued that the High Court had wrongly taken the view that the presiding officer had the inherent right to adjourn the meeting. Reference was made to certain passages in The Law of Meetings by Head, The Law on the Practice of Meetings by Shackleton, and Company Meetings by Talbot. In our opinion, it is unnecessary for the purpose of this case to pronounce upon the merits of that companytroversy in the view we take of the meeting of the 3rd August, 1954, assuming that the meeting of the 30th July, 1954 had been adjourned without authority. It is companymon ground that it was the Collector who called the meeting of the 30th July 1954 and that it was under instructions from the Collector that meeting was adjourned. Under the provisions of section 23 1 A , on the expiry of the term of office of the president or vice-president as determined by the municipality under section 19 1 of the Act, a new president or vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for calling a meeting of a newly companystituted municipality for the election of a president and vice-president have been made applicable to the calling of a meeting and the procedure to be followed at such meeting for the 1276 election of a president. Section 19-A requires the Collector to call a meeting for holding such an election. Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or his numberinee, when presiding over such a meeting, shall have the same powers as the president of a municipalit by when presiding over a meeting of the municipality has, but shall number have the right to vote. On the 30th July, 1954 a special general meeting had been called by the Collector for the election of the President. In the proceedings of that meeting it has been recorded that Under instructions from the Collector of Dharwar the presiding authority adjourns the meeting to 3rd August 1954 at 3 P.m At that meeting all the 32 companyncillors were present and admittedly in their presence the presiding officer declared openly that the meeting will be held on the 3rd August 1954 under instructions from the Collector companycerned. When the meeting was held on the 3rd August 1954 at 3 P.m. as previously numberified, again the 32 companyncillors were present. The proceedings show that the same Prant Officer occupied the chair as authorised by the Collector. The presiding authority read out and explained to the members present the following telegraphic message from the Collector Government have directed to bold election of President of Gadag Municipality on 3rd August as already arranged. Hold election accordingly today without fail. At this meeting the appellant raised two points of order, 1 that the election of the president for the remaining period of the quadrennium as mentioned in the agenda was illegal, and 2 that the meeting was number an adjourned meeting of the municipality and was also illegal because it -was under the instructions of the Collector that the adjourned meeting was being held and that the Collector had numbersuch power. The minutes of the proceedings further show that the presiding authority ruled out the points of order on the ground that this was a special meeting called by the Collector for the election of the President and 1277 the election has to be held as already fixed. After the ruling given by the presiding authority, 13 members including the appellant expressed a desire to walk out and walked out with the permission of the presiding authority. The remaining members, as already indicated, companytinued the business of the meeting and the proposal that the 2nd respondent should be elected president of the municipality for the remaining period of the quadrennium after having been duly made and seconded was carried unanimously and the meeting terminated. It would thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president. Under section 35 3 of the Act, for such a special general meeting three clear days numberice has to be given specifying the time and place at -which such meeting is to be held and the business to be transacted thereat shall be served upon the companyncillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published in a local vernacular newspaper having a large circulation if such exists. It has been companytended on behalf of the appellant that the numberice required by section 35 3 companytemplates a written numberice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 companyld number be said to have been held after companyplying with the terms of sub-section 3 of section 35. It was also companytended that the requirements of section 19-A 1 and 2 have also number been companyplied with because there is numberevidence that the Collector had called that meeting or that he had made an order in writing that the presiding authority had been authorized to preside over that meeting. In our opinion, there is numbersubstance in any one of these companytentions. From the record of the proceedings of the proposed meeting of the 30th July 1954 and the actual meeting on the 3rd August 1954 it is clear that whatever had been done had been done under the orders of 1278 the Collector. He had called the meeting of the 30th July as also of the 3rd August 1954. It was he who had appointed the Prant Officer as the presiding officer for both those meetings. It is true that the numberice of the meeting of the 3rd August 1954 had number been given in writing but had only been intimated to all the companyncillors who were present at the meeting of the 30th July 1954. The numberice amply satisfies the requirement of three days clear numberice, though it was number in writing. It had indicated the time of the meeting and the business to be transacted. Under section 35 4 the ordinary venue of a meeting is the municipal office unless otherwise indicated in the numberice. It is also true that the numberice was number served in the manner indicated in sub-section 3 of section 35 of the Act. There is numberevidence that there existed a local vernacular newspaper with large circulation, in which the numberice of the meeting companyld be published. The question is, do those omissions render the numberice ineffective in law. That companyld only be so if those provisions were held to be mandatory. The following provisions omitting the words number material to this case would show that those provisions of section 35 3 are directory and number mandatory and that any omissions in the manner of service of the numberice are mere irregularities which would number vitiate the proceedings unless it was shown that those irregularities bad prejudicially affected the proceedings- No resolution of a municipality deemed invalid on account of any irregularity in the service of numberice upon any companyncillor or member provided that the proceedings of the municipality were number prejudicially affected by such irregularity. Fortunately for the respondents, all the companyncillors companystituting the municipality were present on both the occasions, namely, 30th July and 3rd August, 1954. Hence they had ample numberice of the meeting to be held on the 3rd August, 1954, the time and place of the meeting and the business to be transacted. It has number been either alleged or proved that the irregularities in the service of the numberice or the omissions company- 1279 plained of had prejudicially affected the proceedings. But it was companytended that as the numberice had number been posted up at the municipal office or the local kacheri or some other public building and had also number been published in a local vernacular newspaper, if there were one, though all the companyncillors were present on 3rd August, 1954, the members of the public had numbersuch numberice and naturally therefore companyld number be present at that meeting. In this companynection it was pointed out that sub-section 6 of section 35 provides that every such meeting shall be open to the public, unless the presiding authority directs to the companytrary. It is evident from the provisions of that sub-section that though the presence of the public at such meetings may be desirable, it is number obligatory. The presence at or the absence from such a meeting of the members of the public has numberlegal companysequence so far as the validity of the election is companycerned. It must therefore be held that the meeting of the 3rd August, 1954 in substance, though number in form, companyplied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was number invalid, assuming, as already said, that the order of the presiding authority adjourning the meeting of the 30th July, 1954 was number authorized. It has to be remembered in this companynection that such a special general meeting can be presided over only by the Collector or the person authorized by him and if either the Collector or his numberinee does number hold the meeting, it is number companypetent for companyncillors present to elect their own chairman for presiding over such a meeting. Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the companyncillors present companyld number hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president. Hence, rightly or wrongly, if the meeting called for the 30th July was number held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy. In this case, as a 1280 result of the expiry of the original term of office of the president and vice-president, another meeting giving the required three days statutory numberice had to be held. The meeting held on the 3rd August 1954 was such a meeting. Indeed, there were some omissions in the manner of publication or service of the numberice but those in law were mere irregularities which do number have the effect of vitiating the election held at that meeting. The election of the president therefore, if number otherwise invalid, companyld number be assailed on the ground of the irregularity in the service or publication of the numberice, in the special circum- stances of this case. If all the companyncillors had number been present on the 30th July or had number been informed of the proposed meeting of the 3rd August 1954, other companysiderations may have arisen but in this case it is clear that there was absolutely numberprejudice to any party or individual or the municipality as a whole. But it was further companytended that the walking out of the 13 companyncillors rendered the meeting infructuous. In our opinion, such a result does number follow from the voluntary act of the 13 companyncillors who chose to walk out. It was number even suggested that there was numberquorum for the special general meeting after the 13 companyncillors walked out. The next question is whether the provisions of section 19 1 as they stood on the 3rd August 1954 render the election of the president and the vice-president on the 3rd August 1954 invalid as it was for the remaining period of the quadrennium. The High Court has taken the view that the remaining period of the quadrennium would number necessarily end on the 9th July 1955, in view of the proviso to section 19 1 that the term of office of such president or vice- president shall be deemed to extend to and expire with the date on which his successor is elected. In view of the events that have happened it is number necessary for us to pronounce on the companyrectness or otherwise of that decision. After the judgment of the High Court and after the grant of special leave by this companyrt, the Bombay Legislature enacted Act LIV of 1954 which was published in the Bombay Gazette on the 14th 1281 October 1954. Sections 2 and 3 of the amending Act are in these terms In section 19 of the Bombay Municipal Boroughs Act, 1925, in sub-section I ,- 1 after the words number less than one year the words or number less than the residue of the term of office of the municipality, whichever is less shall be inserted 2 for the words three years the words four years shall be substituted. 3. 1 The amendments made by this Act shall be deemed to have companye into force on the date on which the Bombay District Muncipal and Municipal Boroughs Amendment Act, 1954, came into force hereinafter in this section referred to as the said date and all elections to the office of the president or vice-president, held on or after the said date and before the companying into force of this Act, shall be deemed to be valid as if this Act bad been in force on the said date and any person elected to the office of the president or vice-president at any of such elections shall number be deemed to have been illegally elected merely on the ground that the residue of the term of office of the municipality being less than one year at the time of such election, he would hold his office for a term less than one year in companytravention of section 19 of the Bombay Municipal Boroughs Act, 1925, as it was in operation before the companying into force of this Act. Nothing companytained in this section shall affect the judgment, decree or order of any companypetent companyrt, passed before the companying into force of this Act, holding any of such elections invalid on the ground specified in sub- section 1 . It has number been companytended that section 19 as amended by Act LIV of 1954 does number in terms companyer the elections number impugned, number that section 3 of the amending Act quoted above is number retrospective but it has been urged on behalf of the appellant that it is number retrospective to the extent of affecting pending proceedings. In terms the amendment in question is deemed to have companye into force on the II the May 1954 1282 on which date the amending Act XXXV of 1954 had companye into force. Section 3 in terms also declares that all elections to the office of president and vice-president held on or after the 11th May 1954 and before the companying into force of the amending Act shall be deemed to have been valid. The section also declares in unequivocal terms that such an election shall number be questioned simply on the ground of companytravention of section 19 on which the election of the 2nd and 3rd respondents bad been questioned before the High Court. The legislature apparently thought fit to declare beyond all companytroversy that an election of president or vice-president for the unexpired portion of the term of a municipality companyld number be questioned on the ground that the provisions of section 19 as it stood before the amendment had been companytravened.But it was argued on behalf of the appellant that in terms the amendment had number been made applicable to pending litigation and that therefore this companyrt should hold that the amendment did number have the effect of validating the elections which were already under challenge in a companyrt. No authority has been cited before us in support of the companytention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings. There is clear authority to the companytrary in-the following dictum of Lord Reading, C.J. in the case of The King v. The General Commissioners of Income- tax for Southampton Ex parte W. M. Singer 1 ,- I cannot accept the companytention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been companymenced if there are in the enactment express words to that effect. There is numberauthority for this proposition, and I do number see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings companymenced before the passing of the statute. That was a case in which the Act in question had 1 1916 2 K.B. 249, 259, 1283 validated assessments made by companymissioners for wrong parishes. It was held by the companyrt that the retrospective effect of the relevant section extended to proceedings for a prohibition companymenced before the Act came into force and the rule nisi for a prohibition was therefore discharged. In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute. A number of authorities were cited before us but it is only necessary to refer to the decision of their Lord- ships of the Judicial Committee in Mukerjee, Official Receiver v. Ramratan Kuer 1 , which is clearly in point. In that case while an appeal had been pending before the Judicial Committee the amending Act had been passed clearly showing that the Act was retrospective in the sense that it applied to all cases of a particular description, without reference to pending litigation. In those circumstances their Lordships pointed out that if any saving were to be implied in favour of pending proceedings, then the provisions of the statute would largely be rendered nugatory. Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of cases pending on the date of the amendment, the words all elections to the office of the president or vice- president, held on or after the said date and before the companying into force of this Act, shall be deemed to be valid companyld number be given their full effect. As there are numbersuch saving clauses in express or implied terms, it must be held that the amendment was clearly intended by the legislature to apply to all cases of election of president or vice- president, whether or number the matter had been taken to companyrt. it is the duty of companyrts to give full effect to the intentions of the legislature as expressed in a statute. That being so, it must be held that the amending Act had the effect of curing any illegality or irregularity in the elections in question with reference to the provisions of section 19 of the Act. For the reasons aforesaid it must be held that the 1 1935 L.R. 63 I.A. 47. 1284 meeting of the 3rd August 1954 had been validly held and that there is numberillegality in the election of the 2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders of the High Court, though number for the same reasons.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 97 and 98 of 1952. Appeals under Articles 132 1 and 133 1 c of the Constitution of India from the Judgment and Decree dated the 13th October 1950 of the High Court of Judicature at Patna in Miscellaneous Judicial Cases Nos. 140 and 107 of 1950. C. Setalvad, Attorney-General for India G. N. Joshi, Lal Narain Sinha and P. G. Gokhale with him , for the appellant in C.A. Nos. 97 and 98 of 1952. Sen and I. N. Shroff, for the respondents Nos. I to 4. 1955. February 10. The Judgment of the Court was delivered by JAGANNADHADAS J.-These are two companynected appeals arising out of a. companymon judgment of the High Court of Patna on two applications to it dated the 5th July, 1950 and 28th July, 1950, under article 226 of the Constitution. The State of Bihar is the appellant in both the appeals. The first three respondents in Appeal No. 97 are the sons of the fourth respondent therein, viz. Kumar Rani Sayeeda Khatoon hereinafter referred to as Kumar Rani . The said Kumar Rani is also the first respondent in Appeal No. 98. The other respondents in both the appeals are Government Officers under the appellant, the State of Bihar. The applications before the High Court arose with reference to action taken against 1 the property, and 2 the person, of Kumar Rani by the Officers of the Government of Bihar, under the following circumstances. Kumar Rani was admittedly born in the territory of India and claims to be the lawfully wedded wife of Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according to Muslim rites, She owned and 1261 possessed companysiderable properties. In 1946 she created a wakf of her properties companysisting of 427 villages for the maintenance and support of herself, her sons and their descendants, by executing a deed of Wakf-ulalAulad dated the 4th May, 1946, by which she divested herself of all her interest in the said properties and vested them in Almighty God. She appointed, herself as the sole mutwalli for her life time or until relinquishment, and her three sons to succeed her as joint mutwallis. The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that number more than half should be spent by the wakifa for her own use. In July, 1948, Kumar Rani went to Karachi. In December, 1948, she returned to India from Pakistan on a temporary permit and went back to Pakistan in April, 1949. On the 21st June, 1949, the Bihar Administration of Evacuee Property Ordinance, 1949 Bihar Ordinance No. III of 1949 came into force. The Deputy Custodian of Evacuee Property issued a numberification on the 2nd September, 1949, under section 5 of this Ordinance, declaring all the properties companyprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property. He took possession thereof between the 20th September and 2nd October, 1949. On the 14th May, 1950, Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan. This permit was, however, cancelled on the 12th July, 1950, by the Deputy High Cominissioner,on the ground that this was wrongly issued, without the companycurrence of the Government, a.-, required by the rules made under the Influx from Pakistan Control Act, 1949. In view of this cancellation, the Sub-Inspector of Police, Gaya, issued numberice to Kumar Rani directing her that since her permanent permit had been cancelled, she should leave lndia by the 31st July, 1950. In view of these happenings two applications were filed before the High Court of Patna, one dated the 5th July, 1950, challenging the validity of the action taken by the Deputy Custodian declaring the wakf estate as evacuee property and taking posses- 1262 sion thereof on the basis of that declaration, and another application dated the 28th July, 1950, challenging the validity of the order of the Sub-Inspector of Police, Gaya, directing Kumar Rani to leave India. The first of these applications was filed by Kumar Rani along with her three sons as petitioners and the second by Kumar Rani alone. Both these applications were allowed by the High Court and hence these appeals by the State on leave granted by the High Court. These two companynected appeals came up for hearing be-fore this Court on the 26th and 27th October, 1953. This Court after hearing companynsel on both sides was of the opinion that one of the essential facts to be mentioned in detail herein below when dealing with Appeal No. 97 requisite for a proper decision of Appeal No. 97 had been assumed without investigation and that it was necessary to have a finding thereupon after taking evidence. This Court accordingly re- manded Appeal No. 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals Appeals Nos. 97 and 98 should be heard together. The finding has number been received and the appeals have been re heard. It is necessary at this stage to mention that the advocate who appeared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to withdraw his appearance in these appeals and to allow the hearing to proceed ex parte. The preliminary facts having been stated as above, it will number be companyvenient to deal with these two appeals separately. Appeal No. 98 which raises the fundamental question as to the companytinuing citizenship of Kumar Rani will be taken up first. Civil Appeal No. 98 of 1952. This appeal arises out of the application to the High Court dated the 28th July, 1950, challenging the validity of the order dated the 23rd July, 1950, issued by the Sub-Inspector of Police, Gaya. This order is challenged on the ground that Kumar Rani was, and throughout companytinued to be, a citizen of India and 1263 that the order dated the 23rd July, 1950, which, in substance, amounted to an order of her externment from India, was in violation of Kumar Ranis fundamental right under article 19 of the Constitution as a citizen of India. The question that arises is whether, in the circumstances, Kumar Rani was a citizen of India at the date of the order. The companytention of Kumar Rani is that though it is a fact that she did go to Pakistan in the year 1948, she went there only for a temporary purpose, viz. for securing the medical treatment of a reputed Hakim and that she was always and companytinued to be a citizen of India and that, therefore, the High Commissioner for India in Pakistan had numberpower to cancel the permit issued to her. As regards her allegation that when she first went to Karachi in July, 1948, she did so temporarily for the purpose of medical treatment, the learned Judges of the High Court were number inclined to accept her story. But, all the same, they held that she was and companytinued to be a citizen of India, on the ground that she was born in India and that her domicile companytinued to be that of her husband, Captain Maharaj Kumar Gopal Saran Narayan Singh, who, it is number disputed, throughout companytinued to be in India. The learned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wifes domicile companytinues throughout to be that of her husband during the companytinuance of marriage. It appears to us, with respect, that the learned Judges of the High Court companypletely overlooked article 7 of the Constitution. The relevant portion of article 5 of the Constitution says as follows At the companymencement of this Constitution, every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India. In the view of the High Court since Kumar Rani was born in India and bad the Indian domicile of her husband, she was a citizen of India. But article 7 says Notwithstanding anything in article 5, a person 1264 who has after the first day of March, 1947, migrated from the territory of India to the territory number included in Pakistan shall number be deemed to be a citizen of India. There is a proviso to this article which will be numbericed presently. But before numbericing the proviso and its effect, it is necessary to mention the following facts which may be taken to have been made out on the record. 1 Kumar Rani went to Karachi in July, 1948. 2 Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded. 3 When she came to India in December, 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national. 4 She went back to Pakistan in April, 1949, on the expiry of that temporary permit. 5 She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of. There can be numberdoubt on these facts that she must be held to have migrated from the territory of India after the 1st March, 1947. Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case under article 7. Article 7 clearly overrides article 5. It is peremptory in its scope and makes numberexception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India. Even such a wife must be deemed number to be a citizen of India unless the particular facts bring her case within the proviso to article 7. This proviso is as follows Provided that numberhing in this article shall apply to a person who, after having so migrated to the territory number included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law. It is companytended with reference to this proviso that 1265 since she in fact returned under a permanent permit, she is entitled to the benefit there of and that the subsequent cancellation of the said permit is both illegal and irrelevant. Rule 10 of the Permit System Rules, 1949, framed by the Central Government under section 4 of the Influx from Pakistan Control Act, 1949, provides that a permit for permanent resettlement in India may be granted by the High Commissioner or Deputy High Commissioner only after securing the agreement of the State or the Province where the applicant intends to settle. Rule 29 provides that every permit issued under the rules shall be liable to cancellation at any time, without any reason being assigned by the issuing authority. In the present case, the permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the companysent of the State Government companycerned should have been obtained before the permit companyld be issued. This is a case, therefore, number of a valid permanent permit having been issued and the permit holder returning to India on the strength thereof and the same having been arbitrarily cancelled. It is a case of an unauthorised issue of an invalid permit which has been properly cancelled. Hence the proviso to article 7 can have numberpossible application. The applicant, is, therefore, number a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, directing Kumar Rani to leave India was accordingly valid. This appeal must therefore succeed. Civil Appeal No. 97 of 1952. This appeal arises out of the application to the High Court dated the 5th July, 1950, challenging the validity of the numberification dated the 2nd September 1949, issued by the Deputy Custodian under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate as evacuee property and taking possession thereof. Three main grounds on which this has been companytested are as follows 1 Kumar Rani was number an evacuee. 2 She had written a letter dated the 2nd June, 1949, addressed to her ,second son, Kumar Fateh Singh, whereby she relin- 1266 quished the office of mutwalli in the wakf estate, and therefore by virtue of the said letter and in pursuance of the terms of the original deed of wakf, her three sons, respondents I to 3, had become the joint mutwallis as well as the owners of the beneficial interest in the wakf estate. It being undisputed that these three remained in India throughout, it is companytended that the property at the date of the numberification was the property of these three sons and number of Kumar Rani and that, therefore, the Bihar Administration of Evacuee Property Ordinance, 1949, has numberapplication to the facts. 3 The Bihar Administration of Evacuee Property Ordinance, 1949, is number applicable to wakf property and to the beneficial interest of the applicants therein. So far as the first point is companycerned an evacuee is defined as follows in the Bihar Administration of Evacuee Property Ordinance, 1949 A person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of November, 1946, left, any place in the Province of Bihar for any place outside the territories number forming part of India. It is clear that, as already found above, Kumar Rani migrated to Pakistan from India after the 1st March, 1947. In view of the fact that her plea as to the reason for such migration has number been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an evacuee by the Custodian. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949. The genuineness of this letter has been challenged and it is the issue as to it 1267 genuineness that was remanded to the High Court for a finding by the previous order of this Court. The 7 High Court having taken evidence on the matters at the hearing after remand and having companysidered the same, has clearly found that the letter was number genuine. We have gone through the finding and the material relevant thereto, and can find numberreason number to accept it. There is, therefore, numbersubstance in this second companytention. As regards the third point, the companytention is based on the definition of the phrase evacuee property in the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument. It is companytended that this definition does number apply either to the wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the property in question did number vest in the Custodian. Now, as already stated, the original numberification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949. This Ordinance was repealed by section 55 2 of Central Ordinance No. XXVII of 1949. The Central Ordinance defined evacuee property as any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity. The Central Ordinance was in turn repealed by Cenral Act No. XXXI of 1950 and evacuee property has been defined therein as meaning any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity. The word property is defined as meaning property of any kind and includes any right or interest in such property. The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance, each companytain section 8 2 providing that 1268 where immediately before the companymencement of this Ordinance Act any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the companymencement of the Ordinance Act be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance Act and shall companytinue to so vest. The definitions of the phrase evacuee property in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is numberreason to think that evacuee property as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition companyprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the companytinuance of the vesting in the Custodian, places the matter beyond any doubt. This companytention must, therefore, fail. This appeal also must accordingly succeed. In the result both the appeals are allowed. The appellant in the circumstances will get only the companyts incurred before the High Court on remand in Civil Appeal No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 260 of 1953 and companynected appeal C.A. No. 12 of 1954 . Appeals from the Judgment and Decree dated the 11th day of May 1951 of the High Court of Judicature at Patna in Miscellaneous Appeal No. 253 of 1950 and in appeal from Original Order No. 252 of 1950 arising out of the order dated the 11th day of May 1951 of the Court of Subordinate Judge, Dhanbad in Suit No. 34 of 1949 and in Title Suit No. 27 of 1949 respectively. Mahabir Prasad, Advocate-General for the State of Bihar S. Varma and M. Sinha, with him , for the appellant In Civil Appeal No. 260 of 1953 . Mahabir Prasad, Advocate- General for the State of Bihar M. Sinha for R. C. Prasad, with him , for the appellant In Civil Appeal No. 12 of 1954 . K. Daphtary, Solicitor-General for India Porus A. Mehta and P. G. Gokhale, with him , for the respondent In both the Appeals . 1955. March 24. The Judgment of the Court was delivered by BOSE J.-This appeal and Civil Appeal No. 12 of 1954, which will also be governed by this judgment, raise the same points though there are some differences in the facts. We will deal with Civil Appeal No. 260 of 1953 first. The suit there related to an arbitration matter. The appellant before us, whom it will be companyvenient to call the companytractor, entered into a companytract with the Dominion of India through an Additional Chief Engineer of the C.P.W.D. on 1-11-1945 for the supply of bricks to the C.P.W.D., a department of the Dominion Government. Disputes arose about a number of matters. Clause 14 of the agreement provided that all disputes arising out of or relating to the companytract should be referred to the Superintending Engineer of the Circle for the time being. Accordingly, there was a reference on 21-1-1949 and an award followed on 8-5-1949. It was filed in the Court of the Subordinate Judge, Dhanbad, and the companytractor prayed that it be accepted and that a decree be passed in terms of it. The Dominion of India filed objections under section 30 of the Arbitration Act, 1940 and prayed that the award be set aside and alternatively that it be modified or companyrected. The companytractors application was registered as a suit under section 20 2 of the Act and a decree was passed in terms of the award on 18-3-1950. By that time the Constitution had companye into force and the Union of India replaced the Dominion of India as a defendant. The Union of India filed an appeal to the High Court. The appeal was allowed in part. The companytractor thereupon appealed to this Court. The dispute that was referred to the arbitrator companysisted of 17 heads of claim but only three of them are companytested here, namely items 5, 8 and 17. In the 5th head of claim the companytractor claimed Rs. 75,900 as the price of 88 lacs of katcha bricks that were destroyed by rain. These bricks were number the subject-matter of the companytract but the companytractor put his claim in this way. The companytract was for the supply of 2-1/2 crores of pucca bricks which bad to be delivered according to the following schedule- 30 lacs by 25-1-46 50 lacs by 25-2-46 55 lacs by 25-3-46 55 lacs by 25-4-46 60 lacs by 25-5-46. Delivery was to be at the kiln site. In order to keep to this schedule the companytractor bad to think ahead and work to a particular time table. First, he had to prepare katcha or unbaked bricks and place them in his kilns for baking. While this lot was baking be had to prepare and stock another lot of katcha bricks ready to take the place of the baked bricks as soon as they were removed. It was the duty of the C.P.W.D. to remove these bricks as soon as they were ready for delivery,that is to say, as soon as they were fully baked. At a certain stage of the companytract the P.W.D. failed to remove the baked bricks which were ready for delivery and removal. This caused a jam in the kilns and prevented the companytractor from placing a fresh stock of unburnt bricks in the kilns, and in the meanwhile his stock pile of katcha bricks ready for baking kept on mounting up. Had everything been done to time the 2-1/2 crores of bricks would have been delivered before the rains set in. But owing to the default of the C.P.W.D. in number removing the burnt bricks which were ready for removal, delay occurred in the time table and the rains set in with the result that88 lacs of katcha bricks were destroyed by the rains. As this loss was occasioned by the default of the C.P.W.D. the companytractor claimed that be should be paid their price. The reply of the Union Government was two-fold. First, it companytended that the katcha bricks formed numberpart of the companytract and even if it was at fault in number taking delivery of the burnt bricks in time all that it companyld be held liable for would be for breach of that companytract and said that the loss that was occasioned by the damage caused to the katcha bricks which formed numberpart of the companytract was too remote. Secondly, that companypensation for this loss companyld number in any event be claimed because this kind of situation was envisaged by the parties when the companytract was made and they expressly stipulated that the Dominion Government would number be responsible. The Union Government relied on additional clause 6 of the agreement which is in these terms The department will number entertain any claim for idle labour or for damage to unburnt bricks due to any cause whatsoever. The arbitrator held that this clause was number meant to absolve the department from carrying out their part of the companytract and so he awarded the companytractor Rs. 64,075 under this head. We are clear that the arbitrator went wrong in law. Government departments have their difficulties numberless than companytractors. There is trouble with labour, there is the likelihood of machinery breaking down in out of the way places and so forth there was also the danger of thunder storms and heavy showers of rain in the month of May it will be remembered that the last date of delivery was 25-5- 46. if, with that in view, Government expressly stipulated, and the companytractor expressly agreed, that Government was number to be liable for any loss occasioned by a companysequence as remote as this, then that is an express term of the companytract and the companytractor must be tied down to it. If he chose to companytract in absolute terms that was his affair. But having companytracted he cannot go back on his agreement simply because it does number suit him to abide by it. This is number to say that Government is absolved from all liability, but all it can be held responsible for is for damages occasioned by the breach of its companytract to remove the pucca bricks which it had undertaken to remove. But what would such a breach entail? The companytractor had a duty under section 73 of the Contract Act to minimise the loss, accordingly he would have had the right to remove the bricks himself and stack them elsewhere and claim companypensation for the loss so occasioned and indeed two of his heads of claim number in dispute here relate to that. He has been awarded Rs. 11,744-11-0 under claim No. 4 for the extra load in companynection with the stacking of I crore 7 lacs of bricks due to the accumulation at the kiln site owing to the departments failure to work to its part of the time table, and in addition, he has been given Rs. 15,500 under claim 13 for the companyt of levelling and dressing land to enable him to stack these extra bricks. Alternatively, he companyld have sold the bricks in the market and claimed the difference in price, but ordinarily he companyld number have claimed companypensation for damage done to the katcha bricks unless he companyld have shown that that kind of damage, ordinarily too remote, was expressly companytemplated by the parties when the companytract was made section 73 of the Contract Act. Here it is clear that this was in their express companytemplation and they chose to provide against such a companytingency by making clause 6 an express clause in their companytract. There can therefore be numberdoubt that the arbitrator was wrong in his law. His companystruction of the terms of the companytract was at fault. The question number arises whether his decision on this point is final despite it being wrong in law. In India this question is governed by section 16 1 c of the Arbitration Act of 1940 which empowers a Court to remit an award for reconsideration where an objection to the legality of the award is apparent upon the face of it. This companyers cases in which an error of law appears on the face of the award. But in determining what such an error is, a distinction must be drawn between cases in which a question of law is specifically referred and those in which a decision on a question of law is incidentally material however necessary in order to decide the question actually referred. If a question of law is specifically referred and it is evident that the parties desire to have a decision from the arbitrator about that rather than one from the Courts, then the Courts will number interfere, though even there, there is authority for the view that the Courts will interfere if it is apparent that the arbitrator has acted illegally in reaching his decision, that is to say, if he has decided on inadmissible evidence or on principles of companystruction that the law- does number companyntenance or something of that nature. See the speech of Viscount Cave in Kelantan Government v. Duff Development Co. 1 at page 409. But that is number a matter which arises in this case. The law about this is, in our opinion, the same in England as here and the principles that govern this class of case have been reviewed at length and set out with clarity by the House of Lords in F. B. Absalom Ltd. v. Great Western London Garden Village Society 1 and in Kelantan Government v. Duff Development Co. 1 . In Durga Prasad v. Sewkishendas 3 the Privy Council applied the law expounded in Absaloms case 2 to India see also Champsey Bhara Co. Jivraj Balloo Spinning and Weaving Co. 4 and Saleh Mahomed Umer Dossal v. Nathoomal kessamal 5 . The wider language used by Lord Macnaghten in Ghulam Jilani v. Muhammad Hassan 1 bad reference to the revisional powers of the High Court under the Civil Procedure Code and must be companyfined to the facts of that case where the question of law involved there, namely limitation, was specifically referred. An arbitrator is number a companyciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does number, he can be set right by the Courts provided his error appears on the face of the award The single exception to this is when the parties choose specifically to refer a question of law as a separate and distinct matter. 1 1923 A.C. 395. 2 1933 A.C. 592. 3 54 C.W.N. 74, 79. 4 50 I.A. 324, 330 331. 5 54 I.A. 427, 430. 6 29 I.A. 51, 60. Reference was made to a decision of this Court in A. M. Mair Co. v. Gordhandass Sagarmull 1 where Fazl Ali, J. quoted a passage from Viscount Simons speech in Heyman v. Darwins Ltd. where the learned Lord Chancellor Viscount Simon in turn, quoted from Lord Dunedin in another case. It was argued on the basis of this that if you have to have recourse to the companytract to establish your case, then the dispute must fall within the arbitration clause. That is undeniable but it is number enough that the dispute should fall within the clause. It is also necessary that the parties should define what the dispute is and agree to refer the dispute so set out and defined to arbitration, or, if they do number, that the Court should companypel them to do so see Lord Macmillan in Heymans case 1 just cited at pages 369 and 370 . If, therefore, numberspecific question of law is referred, either by agreement or by companypulsion, the decision of the arbitrator on that is number final however much it may be within his jurisdiction, and indeed essential, for him to decide the question incidentally. Lord Russell of Killowen and Lord Wright were both in the earlier case, F. R. Absalom Ltd. v. Great Western London Garden Village Society 1 , as well as in Heymans case 2 and they would have pointed to any distinction had there been a likelihood of companyflict but in fact there is numbere and we do number read Fazl Ali J.s judgment as a decision to the companytrary. We have next to see whether the arbitrator was specifically asked to companystrue clause 6 of the companytract or any part of the companytract, or whether any question of law was specifically referred. We stress the word specifically because parties who make a reference to arbitration have the right to insist that the tribunal of their choice shall decide their dispute according to law, so before the right can be denied to them in any particular matter, the Court must be very sure that both sides wanted the decision of the arbitrator on a point of law rather than that of the Courts and that they wanted his decision oil that point to be final. 1 1950 S.C.R. 792 at 798. 2 1942 A.C. 356 at 368. 3 1933 A.C. 592. The clause in the companytract that requires disputes about the companytract to be referred to arbitration is clause 14 and is in the following terms Except where otherwise provided in the companytract all questions and disputes relating to the meaning of the specification and instructions here in before mentioned and as to quality of materials or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the companytract, specification, instructions, orders or these companyditions, or otherwise companycerning the supplies whether arising during the progress of delivery or after the companypletion of abandonment thereof shall be referred to the arbitration of the Superintending Engineer of the Circle for the time being in the manner provided by law relating to arbitration for the time being in force who after such investigation as he may think proper shall deliver his award which shall be final, companyclusive and binding on all parties to the companytract. The dispute sprang out of a series of claims made in a number of letters written by the companytractor to the Additional Chief Engineer, C.P.W.D. and culminated in a petition, Ex. B 1 , in which the companytractor summarised his claims. The document is number dated. On receipt of this, someone on behalf of the C.P.W.D. invoked the jurisdiction of the arbitrator. That letter has number been filed. The arbitrator then wrote to the companytractor and asked him to submit a statement of claim. That letter has number been filed either but reference is made to it in Ex. C 1 , the statement claim which the companytractor filed in response to that letter. As the material documents setting out the terms of reference are number here, we were asked by both sides to infer what the terms were from this statement of claim and the recitals in the award. The learned companynsel for the companytractor relied on the following In the statement of claim- Item 5.-Loss of katcha bricks Rs. 75,900. The chief reason of the destruction of these bricks was the failure of the department to lift the monthly quota of bricks The argument of the department that they are number liable to companypensate us on this account because of clause 6 of the agreement is number companyrect. Clause 6 refers to only such cases over which the department has numbercontrol. But if the department would have lifted the bricks this was entirely under their companytrol then numbersuch loss would have occurred. Also be it numbered that clause 6 refers only to damage and number to destruction Damage means only partial lossit cannot mean total destruction. The award states- The statement of claims submitted by the companytractor companytains seventeen items in respect of which the companytractor claimed a total payment of Rs. 4,76,138-12-0 plus interest i.e., approximate total amount claimed Rs. 5,03,803-12-0 as detailed below. Then follow the seventeen items of which item 5 is- Payment for katcha bricks destroyed by rain Rs. 75,900. The body of the award deals with this as follows Claim No. 5. Payment for 88. lacs of katcha bricks destroyed by rain. The companytractor argued etc The Executive Engineer stated The C.P.W.D. moreover were safeguarded by clause 6 of the companytract The companytractor maintained that clause 6 of the companytract companyld number be invoked when the department was at fault as in this case. Clause 6 was meant to companyer companytingencies which were number of the departments own making. I hold that the removal of the bricks in such a manner or to prevent accumulation in excess of 60 lacs was an implied companytractual obligation on the part of the C.P.W.D I further hold that the C.P.W.D. cannot take shelter behind clause 6 of the companytract. This clause is number, in my opinion, meant to absolve the department from carrying out their part of the companytract. It is impossible number to admit this without offending the rudiments of companymon sense reasoning. We are of opinion that this is number the kind of specific reference on a point of law that the law of arbitration requires. In the first place, what was shown to us is numberreference at all. It is only an incidental matter introduced by the Dominion Government to repel the claim made by the companytractor in general terms under claim No. 5. In the next place, this was the submission of the companytractor alone. A reference requires the assent of both sides. If one side is number prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be companypelled to submit the matter under sub-section 4 . In the absence of either, agreement by both sides about the terms of reference, or an order of the Court under section 20 4 companypelling a reference, the arbitrator is number vested with the necessary exclusive jurisdiction. Therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be bound by the arbitrators decision, the jurisdiction of the Courts to set an arbitration right when the error is apparent on the face of the award is number ousted. The mere fact that both parties submit incidental arguments about a point of law in the companyrse of the proceedings is number enough. The language of Lord Wright in F. R. Absalom Ltd. v. Great Western London Garden Village Society 1 , a case similar to this so far as this point is companycerned, is apposite here- There is here numbersubmission of any specific question of law as such and as a specific question of law numberdoubt incidentally, and indeed necessarily, the arbitrator will have to decide some questions on the companystruction of the building companytract, but. the two matters submitted are both companyposite questions of law and fact there is numberexpress submission of the 1 1933 A.C. 592, 616. true effect of the companytract on the basis of undisputed facts, as in the Kelantan case 1 or as a separate and distinct matter on facts to be separately assumed or found, as in In re King and Duveen 2 The arbitrator was number being asked simply and specifically to decide, upon some agreed or assumed basis of fact, the true interpretation of either clause 26 or clause 30 of the companyditions or of both together he was being required to make an award on the two matters submitted on whatever questions of fact and law might emerge. Clause 32 of the companytract in the House of Lords case was the equivalent of clause 14 in ours. It ran- Provided always that in case any dispute or difference shall arise as to the companystruction of the companytract or as to any matter or thing arising thereunder such dispute shall be and is hereby referred to the arbitration and final decision of etc. The arbitrator relied on that to invest him with juris- diction to determine,, as a matter of law, the companystruction of clauses 26-30 of that companytract. The House of Lords held that in the absence of a specific reference about the companystruction of the companytract the jurisdiction of the Courts was number taken away. Lord Russell of Killowen put it this way at page 610- No specific question of companystruction or of law was submitted. The parties had, however, been ordered to deliver pleadings, and by their statement of claim the companytractor had claimed that the arbitrator should under his powers revise the last certificate issued etc It is at this point that the question of the companystruction of companydition 30 arose as a question of law, number specifically submitted, but material in the decision of the matters which bad been submitted. This question of law the arbitrator has decided but if upon the face of the award he has decided it wrongly his decision is, in my opinion, open to review by the Court. That is exactly the position here. Simply because the matter was referred to incidentally in the plead- 1 1923 A. C. 395. 2 1913 2 K.B. 32, 36. ings and arguments in support of, or against, the general issue about liability for damages, that is number enough to clothe the arbitrator with exclusive jurisdiction on a point of law. The next question is whether the error is apparent on the face of the award. That in our opinion, is clear from the passages we have quoted from the award. We hold that clause 6 expressly relieves the Union Government of all liability under this head of claim and that the arbitrator was wrong in awarding any sum on that account. The next head in dispute is item No. 8 in the statement of claim Cost of additional wages paid to the companylies on account of number-supply of ration and cloth-Rs. 51,495. Here again numberspecific question of law was referred, so all we have to see is whether there is an error of law apparent on the face of the award. The companytractor put his case as follows in the statement of claim At the time when this work was allotted to us there was rationing system in the locality. As per companyditions of companytract we were bound number to employ local labour and we had to import companylies from far off places. We had in our employ about 1800 companylies and it was an impossibility to arrange their ration from open market. This difficulty was brought to the numberice of the authorities companycerned, and they promised us to supply ration. It was only after this promise that we signed the agreement From a perusal of these letters it is clear that the department promised us to supply ration These circumstantial evidences are sufficient enough to show that there was a mutual understanding between the parties that ration will be supplied. In the eyes of law even circumstantial evidence is sufficient to prove that such a promise was made. Any breach of that promise makes the department legally liable to companypensate for that loss Apart from the legal responsibility it was also a moral responsibility for the department to supply ration. This claim, therefore, was number grounded on any clause of the companytract, number was it said to be implied in the -contract. What was relied on was a companylateral promise evidenced, number by the companytract, but by two letters written by the department and a promise by the authorities companycerned and later this promise is turned into a mutual understanding and to a moral responsibility in addition to a legal one. The arbitrator dealt with this as follows. He began by saying- The companytractor stated that when he submitted his tender on 25-9-45 he did so in the bona fide belief that the department would make the necessary arrangements, etc. Then he sets out the following dates. On 1-11-45 the companytractor was told that his tender had been accepted. On 9-11-45 the companytractor warned the Executive Engineer about his immediate requirements in respect of rations. The companytract was finally accepted and signed on 22-11-45. Now it is admitted that the companytract companytains numberclause about rations and it is also evident that the question was number raised when the tender was accepted on behalf of the Dominion Government. The question was raised in a letter to the Executive Engineer, and the companytractor signed the companytract without waiting for a reply. It is well settled that governments can only be bound by companytracts that are entered into in a particular way and which are signed by the proper authority. A reference to the agreement, Ex. A 1 , will show that it was accepted on behalf of the Dominion Government by the Additional Chief Engineer and number by an Executive Engineer. A letter written to the Executive Engineer would therefore have numbereffect and even if it be assumed that the letter was forwarded to the Additional Chief Engineer for companysideration, what does it amount to? A tender embodying certain terms is submitted and is accepted on 1-11-45. Both sides are agreed on all matters companytained in it and their companyduct shows that both sides indicated that the companytract should be reduced to writing. Be- fore the agreement is signed, one party wants to include a further companydition in the companytract. We will assume that the request was made to the other companytracting party. But without waiting for the assent of the other side, both sides accept and sign the companytract as it existed before the fresh suggestion was made. It is an error in law to deduce from this that there was acceptance of the fresh proposal. On the companytrary, the legal companyclusion is that the new suggestion was dropped and that the companytractor was companytent to accept the companytract as it was without this companydition. In any case, a person cannot be bound by a one-sided offer which is never accepted, particularly when the parties intend that the companytract should be reduced to writing. That is the whole point of insisting on a document. It excludes speculation as to what was and what was number agreed to however much the matter might have been raised by one of the parties during the stage of negotiation. The arbitrator companytinues that the companytractor stated that- it was a well known and established fact that Sindri was a rationed area that the C.P.W.D. were giving rations at companytrolled rates to their employees and companytractors through arrangements with the local Civil Supply Authorities that numberody working under the C.P.W.D. was allowed to make independent arrangements or approach the Civil Supply Authorities direct and the companytractor companytended that the very fact that he tendered such low rates showed that he expected to supply his labourers with rations at companytrolled rates. The arbitrator then sets out some more of the companytractors companytentions and from them companycludes that there was an implied companytractual obligation for the P.W.D. to make available companytrolled rations to the companytractor and that this obligation was number fulfilled with due diligence and care. He accordingly awarded Rs. 40,000 as companypensation under this head. The error is apparent. -Facts must be based either on evidence or on admissions they cannot be found to exist from a mere companytention by one side especially when they are expressly denied by the other. The inference from the facts stated above is that the companytractor entered into the agreement with his eyes open and whatever his one-sided hopes may have been he was companytent to enter into the agreement as it stood without binding the other side to the new companyditions and without even waiting to ascertain the reaction of the other side to his further proposals. It has to be remembered that rationing was number a matter that was under the direction and companytrol of the Dominion Government. It was a local matter handled by the then Provincial authorities and under their direction and companytract. The C.P.W.D., as a department of the Dominion Government, was number companycerned with rationing except that its employees had to submit to rationing like everybody else in the Sindri area. This companyfusion between the Dominion Government and the Provincial Government occurs in the arbitrators opening sentence under this head where he sets out the companytractors companytention that companymodities such as rations and cloth which were absolutely essential for the maintenance of his labourers and which were under Government companytrol. As the arbitrator bases solely on the companytractors companytentions it is evident that he failed to appreciate the fact that the Dominion Government and the Provincial rationing authorities were separate entities distinct from one another. The position accordingly reduces itself to this two persons, neither of which is a part of the Provincial Government or has any companytrol over rationing, chose to enter into an agreement for work in a rationed area. They insisted that their companytract should be reduced to writing, and that indeed was essential, this being a companytract with the Dominion Government which was incapable of companytracting in any other way they agreed upon and companycluded all their terms then, at the last minute, one side raised a point about rationing but without waiting for a reply and without having the term entered in the companytract, he signed the companytract as it stood before-the point was raised even during the negotiation. It is an error in law to hold that any companytractual obligation can be inferred or implied from these circumstances. Then there is still another error. If this implied agreement about rations and cloth does number spring out of the written companytract but is to be inferred companylaterally as a distinct and subsidiary companytract, and we gather that that is the finding, especially as reference was made to section 9 of the Contract Act, then that is number a companytract to which the arbitration clause can apply. Wide though it is, clause 14 is companyfined to any matter relating to the written company- tract and if ration and cloth are number companyered by the written companytract, they are number matters that relate to it. If parties choose to add a fresh companytract in addition to or in substitution for the old, then the arbitration clause cannot companyer the new companytract. See Lord Macmillan in Heyman v. Darwins Ltd. 1 . The last item in dispute in this appeal is claim No. 17 about interest. The statement of claims sets out Item 17-Interest on the amount of money involved in this claim at the rate of Rs. 6 percent.Rs. 27,665. This work was finished in May 1946 and it was proper for the department to have decided all our claims at least by 31st December 1947 But this was number done. Due to this a heavy amount remained blocked up and we were companypelled to take money from our bankers on interest. We therefore pray for interest for 16 months from 1-1-48 to 31-4-49. The arbitrator held-- The companytractors companytention that his claims should have been settled by January 1948 is, in my opinion, reasonable. I therefore award interest at 6 for 16 months on the total amount of the awards given i.e., Rs. 17,363. Then the arbitrator sets out the amounts awarded under each head of claim. A perusal of them shows that each bead relates to a claim for an unliquidated sum. The Interest Act, 1839 applies, as interest is 1 1942 A.C. 356 at 371. number otherwise payable by law in this kind of case see Bengal Nagpur Ry. Co. v. Ruttanji Ramji 1 , but even if it be assumed that an arbitrator is a companyrt within the meaning of that Act, a fact that by numbermeans appears to be the case , the following among other companyditions must be fulfilled before interest can be awarded under the Act- 1 there must be a debt or a sum certain 2 it must be payable at a certain time or other- wise 3 these debts or sums must be payable by virtue of some written companytract at a certain time There must have been a demand in writing stating that interest will be demanded from the date of the demand. Not one of these elements is present, so the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable. It was suggested that at least interest from the date of suit companyld be awarded on the analogy of section 34 of the Civil Procedure Code, 1908. But section 34 does number apply because an arbitrator is number a companyrt within the meaning of the Code number does the Code apply to arbitrators, and, but for section 34, even a Court would number have the power to give interest after the suit. This was, therefore, also rightly struck out from the award. We pause to numbere that there was only a delay of five days at the outside in the over-all picture. The last date for removal of the last instalment of bricks was 25-5-46 and the companytractor says under this head that the whole companytract was companypleted by the end of May, 1946. It is difficult-to see how 88 lacs of bricks companyld have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the companytractors case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table. However, that was a 1 65 I.A. 66. matter within the jurisdiction of the arbitrator and is number a matter in which the Courts can interfere. That companycludes Civil Appeal No. 260 of 1953 and we number turn to the other appeal, Civil Appeal No. 12 of 1954. Only two items are in dispute here. Heads 4 and 17 of the claim. The over-all pattern of the claim is the same as in the other case. There was a companytractor and he entered into an agreement companytaining the same terms and companyditions, except about the details of supply. It was signed on the same day as the other and by the same authority on behalf of the Dominion Government., and the matter went before the same arbitrator and the award in this case was given on 1-5-1949, one week before the other award. Here also, numberspecific question of law was referred and we need number companyer the same ground. Our decision is the same here as there. The fourth head of claim is about cloth and rations. The claim here., and the Dominion Governments reply, is the same as in the other case, but the award in this case is number based on an implied companytractual obligation but on a moral and implied obligation. The error here is even greater than before. The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000. The seventeenth head of claim was about interest. The companytractor claimed Rs. 27,665 and the arbitrator awarded Rs. 9,954. There is the same error of law apparent on the face of the award. The High Court was right in dismissing the claims made under the heads in dispute here.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 22 of 1954. 1446 Appeal under Article 134 1 c of the Constitution from the Judgment and Order dated the 27th October 1953 of the Allahabad High Court in Criminal Reference No. 121 of 1953. P. Gupta and A. D. Mathur, for the appellant. B. Asthana and C. P. Lal, for the respondent. 1955. March 15. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by leave granted by the High Court of Allahabad presumably under article 134 1 c of the Constitution. The facts are simple. Three persons including the appellant were, at the material time, parcel porters at the railway station Manikpur in the district Banda of Uttar Pradesh. On the night of the 18th June, 1952, they were found by two watchmen of the Watch and Ward staff attached to the railway station, companymitting theft of certain packets of biscuits by breaking open a railway parcel companytaining those packets, which as parcel porters, they had occasion to handle. First information of the same was lodged, before the Sub-Inspector, Railway Police, by one Ram Prasad, Head Watchman. The Railway Police filed the charge-sheet under section 379 of the Indian Penal Code on the 20th June, 1952. The case was taken companynizance of by the Railway Magistrate, Manikpur. All the three accused pleaded guilty. They were companyvicted by the Magistrate on the 15th July, 1952, and sentenced to a fine of Rs. 25 each. Against this companyviction the present appellant filed a revision to the Sessions Judge of Banda. It is necessary at this stage to mention that under the U. P. Panchayat Raj Act, 1947, the Panchayati Adalats in U. P. have criminal jurisdiction in certain matters. The point taken before the Sessions Judge was that by virtue of the said Act, the present case should have been tried by the Panchayati Adalat and that the Railway Magistrate had numberjurisdiction. This companytention was accepted by the learned Sessions Judge. He accordingly made a reference to the High Court for quashing the companyviction 1447 and sentence. It came before a Single Judge of the High Court who did number feel quite satisfied that the Railway Magistrate had jurisdiction. But without deciding the question one way or the other, he declined to accept the reference on the ground that the revisional jurisdiction of the High. Court was J. discretionary. Somewhat -curiously however, the learned Judge granted a certificate against his own judgment that the case is a fit one for appeal to the Supreme Court. If the learned Judge thought fit to grant leave to appeal, he might well have himself decided the question involved so that we should have had the benefit of his companysideration of the same. To decide the question of jurisdiction thus raised it is necessary to numberice the scheme of the U. P. Panchayat Raj Act, 1947 U.P. Act XXVI of 1947 here in after referred to as the Act and a few relevant sections of the same. It may be mentioned that the Act appears to have undergone some amendments in the year 1952 and recently in 1955. These amendments have numberapplication to the present case. Under the Act, as it stood at the time of the companymission of the offence- and the companyviction there for, the scheme thereunder is as follows Under section 3, the State Government shall, by numberification in the official Gazette, establish a Gaon Sabha for every village or group of villages. Under section 42, the State Government or the prescribed authority shall divide a district into circles, each circle companyprising as many areas subject to the jurisdiction of Gaon Sabhas as may be expedient. The State Government shall also establish Panchayati Adalats for each, such circle, provided that the areas of Gaon Sabhas within each circle shall, as far as possible, be companytiguous. Under section 43, every Gaon Sabha in a circle shall elect five adults of prescribed qualification permanently residing within its jurisdiction to act as Panches in the Panchayati Adalat of that circle. The Panches so elected by all the Gaon Sabhas in a circle shall form a panel. Under section 44 all the Panches elected under section 43 shall elect from among themselves a person who is able to record proceedings and to act, 1448 as Sarpanch of the Panchayati Adalat. As will be seen from the subsequent sections the Panchayati Adalat has jurisdiction to deal with all disputes and cases, both civil and criminal, arising within its area but it is enough for the present case to numberice only those -portions which relate to criminal jurisdiction Section 52 1 provides that certain specified Offences if companymitted within the jurisdiction of a Panchayati Adalat which in this companytext must be taken to refer to local jurisdiction shall be companynizable by such Panchayati Adalat. The clauses of sub- section 1 of section 52 specify the various classes of offences under the Indian Penal Code and under some other special and local Acts which are within the companynizance of the Panchayati Adalat. Section 379, Indian Penal, Code, is one of the sections, so enumerated and it is specifically provided that the jurisdiction of the Adalat in respect of this offence is only where the theft of the stolen property does number exceed Rs. 50. Section 51 1 provides that number with stand anything companytained in the Code of Criminal Pro- cedure, 1898, every case instituted under the Act shall be instituted before the Sarpanch of the Panchayati Adalat of the circle in which the offence is companymitted. It is also provided under section 55 that numbercourt shall take companynizance of any case which is companynizable under the Act by the Panchayati Adalat unless an Order has been passed by a Sub-Divisional Magistrate under section. 85. Section 851 authorises a Sub-Divisional Magistrate, on an -application of a party or on his own motion, to cancel the jurisdiction of the Panchayati Adalat with regard to any pending case if there is an apprehension of miscarriage of justice. Section 49 provides the machinery for the trial of Cases by the formation of benches to deal with the same. It is necessary to set out the whole of that section in so far as it relates to criminal cases and it is as follows 49. 1 The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel the panel referred to in section 43 above numbericed . provided that at least one of the Panches in the bench 1449 shall be a person who is able to record evidence and proceedings. Every such bench shall include one Panch who resides in the area of the Gaon Sabha -in which the companyplainant of a case resides and likewise one Panch in the area in which the accused resides and J. three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases -one Panch shall be such as may be residing in the Gaon Sabha in which the offence was companymitted, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above. 3 Notwithstanding anything companytained in this section, the State Government may, by rules, prescribe the companystitution of special benches for determining any dispute arising between any parties or Gaon Sabhas or different circles or for any other purpose. One of the rules framed with reference to this subsection which is relevant for the present purpose is rule 84 and is as follows For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place number governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall companystitute a special bench companysisting of Panches of the said Panchayati Adalat and if companyvenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it. The question of jurisdiction arises with reference to the above provisions of the Act. The charge-sheet filed by the police shows that the theft of the property involved in the case is Rs. 3. There can also be numberdoubt that the offence has been companymitted within the limits of Manikpur. It would appear, therefore, prima 1450 facie that by virtue of sections 51 and 52, the Panchayati Adalat of Manikpur had jurisdiction to try the case. If so, the jurisdiction of the regular Magistrate would appear to be barred under section 55 of the Act, since it is,not suggested that there has been any order under section 85. But there is a serious difficulty in the way of the exercise of this jurisdiction by the Adalat. The jurisdiction of the Adalat to try any criminal case has to be exercised by a bench of the Panches to be formed by the Sarpanch under section 49 of the Act. The bench has to companysist of five Panches of whom one is to be of the Gaon Sabha of Manikpur since the offence was companymitted in that place and this is a police case and another belonging to the Gaon Sabha of the accused and the other three from Gaon Sabhas outside the above two. Where there is only one accused and that accused belongs to an area within Uttar Pradesh for which a Gaon Sabha has been formed under the Act or where there are more than one accused all belonging to the area of the same Gaon Sabha, the companystitution of a bench of the Panchayati Adalat for the trial of such a case presents numberdifficulty. But in the present case it is on the record that one-out of the three accused by name Tulsi belongs to Jubbalpore in Madhya Pradesh. It was, therefore, number possible to companystitute a bench in strict companypliance with section 49 2 of the Act to try his case. Recourse had, therefore, to be had to section 49 4 and the rules framed thereunder. The relevant rule 84 which has been quoted above numberdoubt provides for the companystitution of special benches to try cases where there are more than one accused who are residents of different areas. Now this rule in so far as it provides for cases wherein all the parties companycerned are residents.of Uttar Pradesh may be unexception- able. But whether it is valid in so far as it provides for the exercise of jurisdiction in respect of a resident outside the State may be open to argument on more grounds than one. In the present case, it is sufficient to companysider whether this portion of the rule is valid, with reference to section 49 4 under which it is 1451 framed. Section 49 4 authorises the Government to frame rules for the companystitution of special benches for determining disputes between parties of different circles or Gaon Sabhas or for any other purpose. Circles or Gaon Sabhas mentioned herein has reference only to circles and Gaon Sabhas companystituted. under the Act. This does number authorise the framing of a rule in so far as it relates to a person belonging to a place outside the State. Nor can the phrase for any other purpose in sub-section 4 of section 49 whatever that may mean-be companystrued so widely as to authorise a rule affecting such an outsider, assuming without deciding, that a statutory provision by a State Legislature can, directly or by delegation and in terms, validly provide for the exercise of such jurisdiction by a Panchayati Adalat. We are clearly of the opinion that rule 84 in so far as it relates to the companystitution of a special bench where one of the parties belongs to a place outside the State is ultra vires. Hence numbercompetent bench companyld be companystituted under section 49 of the Act for the trial of the present case in which there are three accused of whom one is a person belonging to a different State. Now, in these circumstances, it has to be companysidered whether the trial of this case by the ordinary criminal Court is barred. The bar of the jurisdiction of the ordinary criminal Court is brought about by section 55 of the Act. But it requires to be numbericed that the bar which is brought about by the section, is a bar which relates to the case as a whole. Because, in, terms, what it says is numbercourt shall take companynizance of any case which is companynizable under the Act by a Panchayati Adalat. Under section 2 a of the Act a case is defined as meaning criminal proceeding in respect of an offence triable by a Panchayati Adalat and Panchayati Adalat is defined as including a bench thereof. It is clear, therefore, that this bar has reference to the entire proceeding, i.e., as involving all the accused together. Such a bar in. respect of the entire case can be operative only where there is a valid machinery for the trial thereof. In the present case in which at least one of the accused 1452 though number this very. appellant is a person companying from an area outside the local extent of the Act, any -bench of the Adalat that can be validly formed there-. under cannot try the three accused together and hence can have numberJurisdiction over the whole case. The jurisdiction of the regular criminal companyrt in respect of such a case cannot be taken away by the operation of section 55 of the Act. It is to be remembered that the jurisdiction of the criminal companyrts under section 5 of the Code of Criminal Procedure is companyprehensive. That section enjoins, that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter companytained. To the extent that numbervalid machinery is set up under the U.P. Panchayat Raj Act for the trial of any Particular case, the jurisdiction of the ordinary criminal companyrt under section 5 Code of Criminal Procedure cannot be held to have been excluded. Exclusion of jurisdiction of a companyrt of general jurisdiction, can be brought about by the setting numberof a companyrt of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is numberadequate machinery for the exercise of this jurisdiction in a specific case, we -cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal. We are, therefore, of the opinion that the Railway Magistrate had the jurisdiction to try the case.

Case appeal was rejected by the Supreme Court

Sinha, J. These two appeals arise out of the same judgment and order of a Division Bench of the Allahabad High Court, on leave granted by it at the same time that the judgment was delivered. Something will have to be said in the companyrse of this judgment about the legality or regularity of the leave so granted. There are 16 appellants in Criminal Appeal No. 118 of 1954 and only one appellant in 119 of 1954. Both the appeals relate to the occurrence which took place on the morning of the 7th February 1952 at village Goran, police station Ait, in the district of Jalaun of the State of Uttar Pradesh. 57 persons were, placed on trial before the learned Sessions Judge of Orai on charges under Sections 120B and 148, Indian Penal Code, as also under Sections 201, 302, 325 and 452, all read with Section 149, Indian Penal Code. The learned trial Judge acquitted all the accused in respect of the charge under Section 120B, Indian Penal Code. He companyvicted 36 of them under Sections 148, 201/ 149 and 302/149, Indian Penal Code, of whom nine were sentenced to death and the others to transportation for life under Section 302/149, to two years rigorous imprisonment under Section 148, Indian Penal Code and to seven years rigorous imprisonment under Section 201/149 in respect of four of them, and to three years imprisonment in respect of the rest. No more need be said about the companyvictions and sentences under Section 325/149, Indian Penal Code, because those have number been maintained by the High Court on appeal. Some of them had also been companyvicted under Section 452 and sentenced to rigorous imprisonment for three years. One more accused named Kamoda Chamar was companyvicted under Section 325/149, Indian Penal Code and sentenced to three years rigorous imprisonment. Thus in all 37 out of the 57 accused were companyvicted and sentenced by the trial companyrt, partly in agreement and partly in disagreement with the assessors. On appeal, the High Court dismissed the appeal of Baladin Lodhi, who is the first appellant before us, and affirmed his companyvictions and sentences under Sections 148, 452, 302/149 and 201/149, Indian Penal Code and accepted the reference, by companyfirming the sentence of death passed against him in respect of the charge under Section 302/149. In respect of the other appellants who had been sentenced to death, the High Court allowed the appeal of four of them and acquitted them and in respect of the others allowed their appeal on the question of sentence under Section 302/149 by giving them the lesser sentence of transportation for life. The High Court allowed the appeal of twenty of the appellants before it and acquitted them of all charges. In the result, the High Court companyfirmed the companyvictions and sentences in respect of the remaining 17 appellants before it with the modification on the question of sentence as aforesaid. Hence 16 of them figure as the appellants in Criminal Appeal No. 118 of 1954 and Jangi is the sole appellant in Criminal Appeal No. 119 of 1954. Both these appeals have been heard together and will be disposed of by this judgment. Before setting out the case against the accused it is necessary briefly to numberice the background of the events leading up to the ghastly occurrence. Twelve or thirteen refugee families from the West Punjab were rehabilitated in village Goran which is about 10 miles from Orai town by the direct kachha route and about 25 miles by the road proper. The State Government provided those displaced families with lands for cultivation and sites in the village abadi for residential purposes, as also loans for helping them to settle in their new homes. But unfortunately the new-comers were number welcome to the old residents of the village because they were looked upon as companypetitors for house sites and culturable lands of the village. The result was a great deal of tension between the old residents on the one side and the new settlers on the other. Mutual recriminations followed and some incidents of a minor nature, like cattle grazing disputes and simple assaults, took place. All the four years that the new displaced families had companye to stay in the village there were allegations of harassment on both sides and companyplaints to the public authorities. The gulf between the two factions widened until the climax was reached on the 4th February 1952, that is to say, three days before the occurrence which was the subject matter of the charges against the accused persons. On that date Vir Singh alias Vir Lodhi was alleged to have secured the services of one Shambhu Lodhi, resident of district Hamirpur, who is alleged to be a numberorious character. It is admitted by both parties that an incident took place between Diwan Singh and Mangal Singh, two of the displaced persons on the one side, and Vir Singh Lodhi and Shambhu Lodhi on the other, in which grievous hurt was said to have been caused to Shambhu Lodhi and simple injuries to the displaced persons, leading to the lodging of companynter informations at the police station. Both sides had some injuries, though number equally serious but it appears, as found by the companyrts below, that the incident was very lightly treated by the police and number at all as the precursor of more serious events which actually took place three days later. As the refugees found the attitude of the local police hostile to them, 13 male members of the refugee families including Mool Singh, Mela Singh, Sant Singh and Ravel Singh, four of the six persons who were cruelly done to death in companyd blood in the occurrence of the 7th February, came to Orai on the morning of the 5th February 1952 to report the matter to the district authorities and to the Refugee Officer. They succeeded only in making an application to the Refugee Officer and companyld number get the district authorities to lend them a hearing. Disappointed at this attitude of the district authorities, they decided to file a regular companyplaint in companyrt against Shambhu aforesaid and others. They spent the 6th February in making further attempts to companytact the public authorities to ventilate their grievances and in preparing a companyplaint to be filed in companyrt. Things were happening in the other camp also at village Goran. The villagers are said to have assembled at the house of Parichhat Lodhi, adjacent to the house of Mangal Singh, one of the refugees, after having companye to know that most of the male members of the refugee families had gone to the district headquarters to take steps against them. The villagers are said to have resolved to kill all the male members of the refugee families so as to put an end to what they thought was the recurring trouble. When Ravel Singh and Kartar Singh, two of the 13 refugees who had gone to Orai, came back to their village, were informed by their womenfolk of the companyspiracy said to have been hatched by the villagers that very evening. Naturally therefore, they came post-haste that same night, that is to say, the night between the 6th and 7th February to Orai and informed their other male members about the resolution. Such an alarming news caused a great deal of companymotion amongst the refugees and they forthwith got their applications prepared for presentation to the District Magistrate, the Superintendent of Police and the Refugee Officer informing them about the aforesaid resolution of the old residents of the village and their apprehensions about the safety of their persons and imploring the authorities to give them and their families protection against the threatened attack. They also made it clear to those authorities that the situation was so grave that they had decided to go to the village Goran under the companyer of the night to rescue their families and to bring them back to safety. It was decided that six of the refugees, namely, Mool Singh, Mela Singh, Ravel Singh son of Mangal Singh, Sant Singh, Kastura Singh and Harbans Singh should go back to the village to rescue their families. Those were the six unfortunate victims of the occurrence which took place the next morning. As soon as those six ill-fated persons reached the village on the morning of the 7th February 1952 at about sunrise, they found their womenfolk in a state of alarm and companylected at the house of Mangal Singh aforesaid. They were apprised of the desperate situation in which the womenfolk found themselves in the absence of the male members. After talking over the situation at both ends and exchanging information, three of them, namely, Mela Singh, Ravel Singh and Mool Singh were taken upstairs for having their breakfast after their nights journey. Thus when three of the six male members who had arrived from Orai were upstairs and the other three, Kastura Singh, Harbans Singh and Sant Singh, were on the groundfloor of the house, suddenly a crowd of 80 to 100 persons surrounded the said Mangal Singhs house armed with axes, spears, daggers, guns, etc. Narain Das Lodhi and Baladin Lodhi along with 15 to 20 other Lodhis appeared on the first floor of Mangal Singhs house with guns and shot down those three persons. The other Lodhis were also said to have attacked those three unfortunate male members and belaboured them with their lethal weapons. As soon as Mela Singh received two gunshot wounds and rolled down in his attempt to run downstairs, he was picked up by Smt. Bhagwanti one of the four eyewitnesses examined in the case and was hidden in the grain room of Mangal Singhs house. The Lodhis who were on the first floor of the house threw the dead bodies of Mool Singh and Ravel Singh from the roof of Mangal Singhs house towards the cattle shed of Mahabir, one of the appellants. The three other male members of the refugee families who were on the ground floor were prevented from escaping, by the large mob assembled in front of Mangal Singhs house. Some of the members of the mob who had guns with them Prabhu Dayal and Shobha Lal number before the companyrt fired a number of shots at those three persons and killed them. The other members of the mob are said to have belaboured those unfortunate victims with their spears, axes and daggers. Mela Singh who had been companycealed as aforesaid in the grain room of Mangal Singhs house was said to have been dragged out by Raja Ram and Mahabir, two of the appellants and others. When taken out of the room, he was said to have been assaulted by Jangi Lodhi, the sole appellant in Criminal Appeal No. 119 of 1954 and by other persons number before the companyrt, with axes, and by Uma Charan, another appellant, with a sword, and thus some of the members of the unlawful assembly finished him off also. The dead bodies of all those six helpless victims were then dragged to the front of Manna Telis house. Two bullock carts, one belonging to and driven by Manna Teli, and the other belonging to and driven by Vira Lodhi, two of the appellants, were loaded each with three of the dead bodies and carried to the tank in the village. A tin of kerosene oil was sprinkled on the dead bodies and Vira Lodhi and others are said to have set fire to the joint pyre of those six dead bodies which were thus burnt to ashes. Such was the ghastly tragedy which is said to have been witnessed by four of the female inmates in the house at that time, namely, Mst. Paiyyan Devi P.W. 18 , Mst. Shanti Devi P.W. 21 , and Mst. Parvati P. W. 22 , who were the widows respectively of Mela Singh, Mool Singh and Sant Singh, three of the six victims and the fourth Mst. Bhagwanti P.W. 20 , wife of Mangal Singh and mother of the fourth victim Ravel Singh. While the aforesaid six male members had thus met their unnatural death, the remaining male refugees who had stayed back at Orai were trying to get into touch with the public authorities on the 7th February, without any success. In the meantime, at about 2 p.m., when they were waiting at the residence of the Superintendent of Police for an interview, two of the members brought the sad news from the market where they had gone for their meals that there was a rumour that those six refugees who had left for the village had been murdered. They naturally all began to weep and bemoan their lot and then the Superintendent of Police on companying to know of the sad news granted them an interview. He directed the Circle Inspector, Kabir Ahmad P.W. 27 at about 4-30 p.m. to proceed to the village on a truck with an armed guard and the refugees. After sunset, on the way he met Raj Bahadur Singh, Sub-Inspector of Police in charge Ait police station companying towards Orai by a passenger bus, apparently companypletely ignorant of what had happened at the village Goran. This ignorance may have been due to the fact that at about 5 p.m. the same day the village chowkidar Ramola, one of the appellants, had lodged an information at the police station that all was quiet in the village. As will presently appear, it was the quiet of a deserted village after the holocaust and the burning of the dead bodies by the members of the mob. The Circle Inspector with Sub-Inspector Raj Bahadur Singh went to the police station, strengthened their force and then reached the village at about midnight between the 7th and 8th February. At that time the village presented a deserted appearance with numberlights in any house and numberwhispers from any direction. The original residents of the village, as also the refugees, it appears, had for the time being companypletely abandoned the village. Mangal Singh and Diwan Singh, refugees, took the police truck to village Kotra, about two and a half miles away from village Goran in search of their womenfolk and children. On the way, in the jungle they picked up some of their womenfolk and children and brought them back to the village. In the morning of the 8th February, the Deputy Superintendent of Police also arrived with some of the refugee ladies, namely, Mst. Paiyyan Devi and Smt. Bhagwanti Devi, two of the four eye-witnesses aforesaid to the unfortunate occurrence. These two ladies had trudged until midnight from the village to Orai and informed the Superintendent of Police about the occurrence to which they were eye-witnesses. It was then that the Superintendent of Police deputed the Deputy Superintendent of Police to look into the matter. Until he reached that village next morning numberprogress had been made in the investigation of the case as he found the Sub-Inspector asleep. A remarkable feature of the case, as pointed out by the companyrts below, is the unsatisfactory manner in which the police investigation took place. It appears that the local police from the village chowkidar upwards were number only apathetic but definitely hostile to the refugees. Instead of taking recourse to preventive action in view of the rising tension between the two parties in the village, things were allowed to drift until the unfortunate occurrence, as described above, took place. Even then the Sub-Inspector of Police, Raj Bahadur Singh P.W. 30 , did number take prompt measures to apprehend the culprits. Not only that as pointed out by the companyrts below, from the very start of his investigation he gave such a twist to the prosecution case, by the entries in his diary, as to make it appear that the occurrence had taken place number in broad daylight, as really was the prosecution case, but in the darkness of the night so that identification of the culprits would be difficult, if number impossible. Naturally, there was a companyplaint to the superior officers against him and that very day the investigation was taken out of his hands and Circle Inspector Kabir Ahmad P.W. 27 was placed in charge of the police investigation. But he also does number appear to have been immune from the local police bias in favour of the accused, with the result that on further companyplaints being made he was also relieved of the investigation on the 21st February 1952. The then Deputy Superintendent of Police, C.B. Singh P.W. 28 did number start the investigation in right earnest until the 30th May, 1952, though he is said to have taken charge of the investigation from Inspector Kabir Ahmad on the 22nd or 23rd February 1952. All he did up till then was to raid the houses of several of the accused persons in that village to effect their arrest, to serve warrants of attachment and proclamation under Sections 87 and 88, Criminal Procedure Code and to record the statements of some persons on the 11th and 13th March 1952. The bulk of the investigation by him was made after the 30th May 1952 and even then the record of statements of witnesses made to him does number do credit to a senior police officer, inasmuch as he failed to record the statements with particular reference to the individual part said to have been played by the accused persons, though he admitted that the witnesses examined by him had assigned particular acts to various accused persons. It is manifest that the police officers companycerned with the investigation of the case did number fully realize the gravity of the situation and did number take prompt steps to companylect evidence of an occurrence which on the face of it was rather of an unusual character in so far as it had been the result of a preconcerted plan to annihilate the male members of the refugee families which were being treated by the residents of the village as so many usurpers of their culturable lands and house sites. Even if the police had realized the seriousness of the situation, they did number prove equal to the occasion. Either they were incompetent or were unwilling to take all necessary steps to vindicate justice and to inspire companyfidence in the minds of the aggrieved party. As will presently appear, this remissness on the part of the police officers has had a very adverse effect on the prosecution case and has added to the difficulties of the companyrt in finding out who the real culprits were. Though the prosecution did number rely upon the investigation made or purported to have been made by the Sub-Inspector and the Circle Inspector aforesaid, they have been examined as prosecution witnesses in order to enable the parties to elicit such information as they thought necessary and proper. The defence was a companyplete denial of all knowledge of the occurrence and the alleged death of all the six male refugees who had travelled on the night between the 6th and 7th February from Orai to the village. The accused persons ascribed their implication in the occurrence to various kinds of enmity between them and the refugee families. It was alleged on behalf of the accused that the refugee families had rendered themselves so obnoxious to the original inhabitants of the village that the villagers, blacksmiths, potters, shoe-makers and other professional persons in the village, including money-lenders and shop-keepers had refused to render them any services because they would number pay for those services. On the main occurrence the suggestion on behalf of the accused persons appears to have been that even if the six refugees had been put to death, the occurrence might have taken place in the darkness of the night in which unknown persons had taken part and that the admitted enmity between the two parties was the reason for false implication. It is thus clear that it is companymon ground between the prosecution and the defence that serious enmities existed between the original inhabitants of the village on one side and the refugee families on the other. It is number, as usually happens, a case of animosities between particular individuals on the one side and named individuals on the other. As a result of police investigation, such as it was, and companymittal proceedings the accused persons placed at the trial were charged, firstly, under Section 120B, Indian Penal Code with companyspiracy to do illegal acts, namely, to murder and to cause grievous hurt to the refugees in general and to six named refugees as aforesaid in particular secondly, under Section 148, Indian Penal Code with being members of an unlawful assembly armed with deadly weapons like guns, spears, swords, pharsas, axes and lathis with the companymon object to cause death and grievous hurt to refugees in general and the six named refugees in particular thirdly, under Section 452, Indian Penal Code with house trespass by entering into the building belonging to Mangal Singh and used as a human dwelling,, after having made preparations for causing death and hurt fourthly, under Section 302 read with Section 149, Indian Penal Code with having companymitted the murder of those six persons in pursuance of the companymon object of the unlawful assembly and in furtherance of the aforesaid criminal companyspiracy and lastly, under Section 201 read with Section 149, Indian Penal Code for causing the evidence of the aforesaid offences to disappear by burning the dead bodies of those six persons and by throwing the bones and ashes into the village tank. Reference to the charge under Section 325 read with Section 149, Indian Penal Code is numbermore necessary at this stage. The learned Sessions Judge, partly agreeing and partly disagreeing with the opinion of the three assessors who aided him at the trial, for reasons which may number bear scrutiny acquitted all the accused of the charge of companyspiracy under Section 120B, although he believed the prosecution case that there was a meeting on the evening of the 6th February at the house of Parichhat Lodhi at which it was resolved that the male members of the refugee families should be killed, as alleged by the prosecution. In respect of the other charges he companyvicted and sentenced 37 of the accused persons, as stated above. In the companyrse of his judgment the learned trial Judge found that the four women witnesses who figured as the only eye-witnesses of the occurrence were on the whole truthful witnesses who companyroborate one another on all material questions that their statements as recorded by the sub-Inspector, Raj Bahadur Singh, was number a faithful record that the Circle Inspector of Police did number make any independent record of his own and that the prosecution version, of the occurrence and number the defence suggestions was true. He also observed that the so-called companytradictions in the statements of those eyewitnesses as companypared with the statements recorded by the investigating Sub-Inspector should number be allowed to affect the credibility of those witnesses because there were clear indications that he did number faithfully record the statements of those witnesses and distorted their versions with a view to favouring the accused persons. The learned Judge also took the precaution of closely scrutinising the evidence of those four eye-witnesses, though he held them to be companypetent and truthful witnesses, in view of the general tendency in rioting cases of witnesses to rope in also those who may number have been actuated by the companymon object of the unlawful assembly and may have been present there as mere spectators. He therefore examined the evidence against each individual accused bearing in mind the dictum that mere spectators had to be distinguished from members of the unlawful assembly. On appeal by the companyvicted persons, the Division Bench of the High Court wrote a very painstaking judgment which runs into 83 printed pages. The judgment tends to be discursive and companyld have been more companycise without affecting its quality. The High Court went into meticulous details but, as will presently appear, fell into a grievous error as a result of which it acquitted 20 of the appellants, a number of whom had been ascribed leading parts in the occurrence which was the subject matter of the charge against them. The High Court held that the Sub-Inspector, the Circle Inspector and the Deputy Superintendent of Police who were successively in charge of the police investigation, to put it mildly, were number very circumspect in companyducting the investigation. The investigation suffered from lack of thoroughness and quickness, with the result that statements of witnesses were recorded by them in the most haphazard manner and many matters of importance and significance to the case were omitted. It also observed that Sub-Inspector Raj Bahadur Singh for oblique motives distorted their statements, that his attempt was to introduce such variations in the statements and to leave such loopholes as to damage the ultimate result of the case to as large a measure as possible. The High Court in the main relied upon the testimony of the four eye-witnesses, the ladies belonging to the family of the victims, but with reference to the testimony of Paiyyan Devi and Shanti Devi further observed that their evidence should be scrutinized and relied upon only when companyroborated by other evidence on the record. Hence in respect of those two witnesses, the learned Judges were number as sure as in respect of the others. Having held that the four eye-witnesses were on the whole reliable and that the record of their statements made by the investigating Sub-Inspector was number honest and faithful, the High Court fell into the error of acquitting all those accused persons, appellants before it, whose names did number find a place in the record made by that police officer. In other words it rejected reliable testimony with reference to that very record which it had companydemned as unreliable. Thus the police officer was allowed by the High Court to succeed in his effort to favour the accused. Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in companyrt with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in companyrt, with particular reference to those statements which happen to be at variance with their earlier statements but the statements made during police investigation are number substantive evidence. Hence the record made by a police investigating officer has to be companysidered by the companyrt only with a view to weighing the evidence actually adduced in companyrt. If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the companyrt in judging the case of a particular accused has to weigh the evidence given against him in companyrt keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has number as reat a value as it otherwise would have in weighing all the material on the record as against each individual accused. In so far as the High Court misled itself into relying upon the record made by the Sub-Inspector of Police to discard the evidence given in the companyrt it fell into a serious error. On appeal the High Court, as indicated above, acquitted those persons in respect of whom the evidence of the four eye-witnesses was number companysistent with their statements as recorded by the investigating Sub-Inspector, though some of them had been assigned leading parts in the occurrence of shooting. After examining in great detail the evidence against each individual accused the High Court delivered its judgment on the 10th September 1954 and presumably at the request of companynsel for the 17 persons against whom the High Court maintained the order of companyviction, recorded the following order which is the last line and is a part of the judgment of the companyrt-- Leave to appeal to Supreme Court is granted. At the outset the learned companynsel for the State of Uttar Pradesh the respondent raised a preliminary objection to the hearing of the appeal on the ground that the certificate granted in the terms quoted above is number in full companypliance with the provisions of Article 134 1 c of the Constitution. It was companytended that the High Court should have granted the certificate after examining the case of each individual accused, that is to say, that the High Court should have exercised its judicial discretion after satisfying itself that the certificate prayed for should be granted in respect of each and every accused companyvicted by it. It was argued on behalf of the appellants that the High Court granted the certificate in exercise of its powers companytained in Rule 28 of Chapter 23 of the Rules of the Allahabad High Court which required that the companynsel for the appellant should pray for the leave at the time the judgment of the High Court is delivered. The leave having been granted in pursuance of that practice, it should be, it was further companytended, assumed that the High Court had directed its attention to the case of each individual accused. The respondent on the other hand companytended that the question is companycluded by the decision of this Court in Nar Singh V. State of U.P., . We have number to determine whether that is so. That case lays down three propositions-- 1 that the mere grant of a certificate does number prevent this Court from determining whether it was rightly granted and whether the companyditions pre-requisite to the grant are satisfied 2 that the only companydition is the exercise or a judicial discretion by the High Court 3 that being a judicial discretion, it must be exercised along well established lines governing an exercise of judicial discretion and 4 if the discretion is properly exercised on well established and proper lines, then, as in all cases where an exercise of discretion is involved, there would be numberinterference except on very strong grounds. We have number to apply these principles to the present case. Article 134 1 a and b lay down two companyditions which companyfer a right of appeal to this Court. That in itself indicates that numbermally there is numberright of appeal in any other type of case. The only exception is c where a right is companyferred an appeal shall lie if the High Court certifies that the case is a fit one for appeal. Now the word certifies is a strong word. It indicates that the High Court must bring its mind to bear on the question and, as in all cases of judicial orders and certificates, the reasons for the order must be apparent on the face of the order itself. The Supreme Court must be in a position to know first that the High Court has applied its mind to the matter and number acted mechanically and, secondly, exactly what the High Courts difficulty is and exactly what question of outstanding difficulty or importance the High Court feels this Court ought to settle. It is number enough to say leave to appeal is given and numbermore because an appeal is number allowed in the ordinary, way when companyditions a and b are number satisfied. Accordingly merely to say that leave is given and numbermore is tantamount to saying that the High Court will usurp the functions of the Constitution-makers and allow the whole case to be opened up despite the fact that the Constitution has specifically limited the numbermal right of appeal to Sub-articles a , and b and has left c to meet extraordinary cases. Now, in the present case, where the High Court has merely said Leave to appeal to the Supreme Court is granted. It is impossible for us to gather what induced the High Court to grant this leave or what points of outstanding importance that require to be settled are, in the opinion of the High Court, involved. The learned Judges have number even certified that this is a fit case for appeal. Had some reasons been given and the I point or points that it was felt we ought to settle been indicated that might have been treated as a curable irregularity in its procedure. But, as it is, we can only regard this omission as indicative of the fact that the High Court did number realise the responsibility that is cast upon it by Article 134 1 c and did number realise that its discretion has to be judicially and number mechanically exercised. Accordingly, following our previous decision, we are unable to regard this appeal as properly certified and so decline to accept it as an appeal under Sub-article c . In fairness to the learned Judges we have been at pains to see whether there are matters which would have afforded them justification for granting a certificate under Sub-article c . Four grounds were put forward before us on behalf of the appellants three of which are pure grounds of fact. Now it is clear that a certificate cannot be granted under Sub-article c if the High Court is in doubt about the facts. If there is doubt in the minds of the learned Judges about the facts, their duty is to acquit They cannot companyvict and then issue a certificate because they cannot make up their minds about the facts. The fourth ground taken before us involves a question of law but it is clear that that was number present to the minds of of the learned Judges because they do number even discuss it or advert to it. We are therefore companystrained to hold that the appeal does number lie under Sub-article c . But that still leaves us a discretion to examine whether this is a fit case for us to exercise our special powers under Article 136 1 , and that we number proceed to do. The learned companynsel for the appellants raised four questions before us, namely, 1 that the companyrts below were in error in relying upon the evidence of the four eye-witnesses aforesaid when their statements in companyrt were at variance with their statements as recorded by the investigating Sub-Inspector 2 that the companyrts below were in error in companyvicting and sentencing the appellants on the testimony of those four eye-witnesses when their evidence had number been acted upon in respect of the other accused who had been acquitted by the companyrts below 3 that the evidence of those four eye-witnesses having been disbelieved by the lower appellate companyrt, particularly in respect of some of those accused persons to whom they had attributed specific parts, should, number have been accepted in respect of those accused to whom numbersuch parts had been assigned and 4 that the companyrts below had erred in law in companyvicting those accused persons against whom numberspecific parts had been deposed to and whose mere presence, in the assembly had been penalized. It is manifest that the first three grounds do number make out a case for special leave but we think that the fourth ground does. It is well settled that mere presence in an assembly does number make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, Indian Penal Code. In this case there is numberdoubt that the original inhabitants of the village were all inimically disposed towards the new-comers. From the site plan Ex. P-18 of the houses of the refugees, it is clear that the houses of the accused persons and of the refugees are situate close to one another. The house of Mangal Singh which was the scene of the occurrence was surrounded by the houses of the original inhabitants of the village including some of the accused persons. According to the prosecution case, one party of the members of the unlawful assembly entered the first floor of the house of Mangal Singh through the roof of the house of Parichhat Lodhi , adjacent to the south-east and attacked the three persons who were there. The other party of the miscreants companylected at the front door of Mangal Singhs house facing west. In front of Mangal Singhs house is the house of Mahabir, appellant, and on the other three sides of that house are the houses of Baladin Lodhi, Parichat Lodhi and Ajodhia Lodhi, appellants. It would thus appear that the place of occurrence is surrounded on all sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons companyld number be companydemned ipso facto as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the companyclusion that all the appellants before us had done or been companymitting some overt act in prosecution of the companymon object of the unlawful assembly. The evidence as recorded is in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question. That the six male members who were done to death that morning found themselves trapped in the house of Mangal Singh has been found by the companyrts below on good evidence. We have, therefore, to examine the case of each individual accused to satisfy ourselves that mere spectators who had number joined the assembly and who were unaware of its motive had number been branded as members of the unlawful assembly which companymitted the dastardly crimes that morning. It has been found that the companymon object of the unlawful assembly was number only to kill the male members of the refugee families but also to destroy all evidence of those crimes. Thus even those who did something in companynection with the carrying of the dead bodies or disposal of them by burning them as aforesaid must be taken to have been actuated by the companymon objective. There cannot be the least doubt that those who had trespassed into the first floor of the house of Mangal Singh and killed those three refugees who had gone upstairs to have their breakfast were certainly up to their neck in the companyspiracy and were thus very active members of the unlawful assembly. In that category are Baladin Lodhi, Parichhat, son of Lallu Lodhi, Ajodhia Lodhi and Parichhat, son of Sadhoo. They have therefore been rightly companyvicted and sentenced by the companyrt below. The appellant Raja Ram is a close neighbour of Mangal Singh. He has been assigned a distinct part in the occurrence that morning. He is said to have dragged Mela Singh out of the grain room of Mangal Singh on the first floor. He is also said to have given an axe blow to Mela Singh because he had number died till then as a result of the firing at him. This man has a history of hostility against the refugees. He had litigation with some of the refugee families and was one of those who had falsely and maliciously reported that the two daughters-in-law of Mangal Singh were Muslim girls abducted from West Pakistan. Though the High Court had some doubts as to these specific parts against him because the police records did number show that those parts had been assigned to him and on that account that companyrt reduced the sentence of death to transportation for life under Section 302/149, his companyviction under Sections 148, 201/149 and 452 Indian Penal Code has also been upheld. He was apparently very much in the lime-light on that morning. In view of his leading activities against the refugee families, it is number improbable that he took a leading part in the occurrence. His companyviction and sentence must therefore be upheld. The appellant Uma Charan had also been named by all the four eye-witnesses as having taken a leading part in the occurrence. He was said number only to have hit Mela Singh on the head with a sword but was also one of those who took part in the burning of the dead bodies. The episode of the burning of the dead bodies was an essential part of the companymon object of the unlawful assembly and his presence therefore in that assembly is beyond all doubt. In view of the fact that the use of sword against Mela Singh had been spoken to by only one of the eye-witnesses companysistently throughout, though the other eye-witnesses statement in companyrt on that incident did number find a place in the police diary, the High Court gave him the lesser sentence under Section 302/149, Indian Penal Code, though the trial companyrt had given him the extreme penalty of death under that Section. His companyviction under Sections 148, 201/149 has also been upheld. It must therefore be held that he was number a mere spectator in the assembly. His appeal must therefore-also stand dismissed. Appellant Mahabir Pershad has his cattle shed adjacent to the numberth of Mangal Singhs house and his residential house is just in front of that house. The two dead bodies of the victims on the first floor of Mangal Singhs house had been thrown into his cattle shed and had been dragged out from there and taken to the open space between the houses of Mannu Teli and Raja Ram, also appellants. He is also said to have dragged out Mela Singh from the place where he had been companycealed. That part, according to the High Court, had number been companyclusively proved. Hence his sentence under section 302/149 was reduced by the High Court from death to transportation for life. It has been found that he was also present at the time of the disposal of the dead bodies. His companyvictions under Sections 148, 302/149,201/149 and 452, Indian Penal Code were also upheld. Apparently he had been there from beginning to end. His appeal must therefore also stand dismissed. Appellant Narain Das was the Mukhia of the village and is a close neighbour of the refugees and lives opposite to the houses of Sant Singh and Mela Singh, two of the victims. He has been assigned the specific part of inciting the mob from near the chhabutra of Mahabir. Hence the evidence of the four eye-witnesses directly implicating him in the crime and assigning him the part of inciting the mob clearly negatives the theory of his having been a mere sightseer. The fact that he is a close neighbour of some of the victims of the occurrence and, therefore, must have been very well known to the witnesses who deposed against him exclude the possibility of a mistake. The companyrts below were therefore fully justified in believing the testimony of the four eyewitnesses that he took part in the unlawful assembly. His appeal must also stand dismissed. Appellant Ramola is the village chowkidar. Instead of keeping the police informed of the developments in the village he went as late as 5 p.m. to the police station to lodge the report that all was well in the village, apparently companycealing all that had happened since the early morning that day. The companyrts below were therefore justified in thinking that his false report at the police station was only meant to shield himself and the other miscreants. He did number move out of the village until all was finished, so that the higher police authorities companyld number move in the matter until all traces of the crime had been destroyed. This serious dereliction of duty on his part was therefore number a mere act of negligence but intended to throw a veil round the whole occurrence. The companyrts below were therefore justified in companyvicting him under Sections 148, 302/149 and 201/149. His appeal must also stand dismissed. Appellant Vir Singh alias Vira Lodhi had, according to the prosecution case, set the ball rolling by importing into the village the numberorious Shambhu Lodhi a few days before the occurrence on 4th February 1952. He is further alleged to have taken three of the dead bodies in his cart to the cremation ground near the pond and the police later on recovered the cart in front of the house with stains of human blood on it. One of the four eye-witnesses also deposed to having seen him on the roof of Mangal Singhs house. Hence it cannot be said that he was a mere sightseer in that assembly. His appeal was also rightly dismissed by the High Court. Appellant Mannu Teli also is assigned the specific part of carrying three of the dead bodies on his cart and to have placed them on the funeral pyre. The wheels of his cart which were said to have been thrown into the tank were also recovered by the police. His appeal was also rightly dismissed by the High Court. It remains to companysider the cases of Thakur Das, Ishwari Prasad, Mulloo and Jagdish. These four appellants had number been assigned any particular part in the occurrence number any overt act has been attributed to them. Of these, Thakur Das is a resident of another village in another police station, though he has cultivation in village Goran. They might possibly have been spectators who got mixed up in the crowd. They will, therefore, be given the benefit of the doubt and acquitted. It remains to companysider the case of the only appellant Jangi in Criminal Appeal No. 119 of 1954. Besides being named and picked out by the four eye-witnesses, he was also alleged to have struck Mela Singh, one of the victims, with an axe. The High Court has thought fit to reduce his sentence from death to that of transportation for life in view of the fact that the statements of the four eye-witnesses as to the part played by him were number supported by the police record. But in view of the fact that even the Deputy Superintendent of Police did number admittedly take numbere of the individual part played by the accused persons, it is number surprising that the police records do number companyroborate the witnesses in companyrt, but there is numbercontradiction of their statements with reference to their previous statements during the investigation stage. Hence it cannot be said that he was a mere sightseer, when the learned Sessions Judge has found that he was one of the ring-leaders. In the result, the appeal of Thakur Das, Ishwari Prasad, Mulloo and Jagdish is allowed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION- Petition No. 367 of 1954. Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. C. Chatterjee and Veda Vyas, S. K. Kapur and Ganpat Rai, with them , for the petitioner. C. Setalvad, Attorney-General of India Shiv Dyal and P. G. -Gokhale, with him , for respondent No. 1. 1217 1955. January 27. The judgment of Mukherjea C. J., Vivian Bose, Venkatarama Ayyar and Sinha JJ. was delivered by Venkatarama Ayyar J.Jagannadhadas J. delivered a separate judgment. VENKATARAMA AYYAR J.-This is a petition under article 32 of the Constitution. There is at Indore a Medical-College known as the Mahatma Gandhi Memorial Medical College run by the State of Madhya Bharat. The petitioner who is a resident of Delhi was admitted as a student of this College in July. 1952, and is number studying in the third year class, B.B.S. Course. His companyplaint is that the rules in force in this institution discriminate in the matter of fees bet- ween students who are residents of Madhya Bharat and those who are number, and that the latter have to pay in addition to the tuition fees and charges payable by all the students a sum of Rs. 1,500 per annum as capitation fee, and that this is in companytravention of articles 14 and 15 1 of the Constitution. The petitioner accordingly prays that an appropriate writ might be issued prohibiting the respondent from companylecting from him capitation fee for the current year, and directing a refund of Rs. 3,000 companylected from him as capitation fee for the first two years. The respondent companytests the petition. In the affidavit filed on its behalf, it is stated that the institution in question had its origin in private enterprise, and was under the management of a Committee that it was the Committee that had made the rule imposing capitation fee on students who did number belong to Madhya Bharat, that the State took over the College subject to the companyditions relating to reservation of seats under which it was being run, and that the requirement of a capitation fee from number-residents did number offend either article 14 or article 15 1 of the Con- stitution. A brief narration of the history of the institution will be useful for a companyrect appreciation of the companytentions on either side. The beginnings of the institution go back to the year 1878, when a Dr. Beaumont started a Medical School at Indore under the name of 1218 Indore Medical School, as an adjunct to a hospital called the Indore Charity Dispensary. It received companysiderable financial assistance from the rulers of Gwalior and other Indian States, and became well established and it. is. claimed on its behalf that the medical practitioners of Central India, Rajasthan and neighbouring States were largely recruited from its alumni. In 1910 the name of the school was changed to King Edward Memorial School, Indore, and it was thereafter under the management of a Committee. In 1940 the Committee decided to improve the status of the School, and started companylecting funds for equipping ,it as a first-class Medical College. The arrangements were companypleted in 1947, and in 1948 the institution was affiliated to the University of Agra. It then came to be known as the Mahatma Gandhi Memorial Medical College. In 1950 the College Council resolved to request the Madhya Bharat Government to takeover -the running of the institution, subject to the arrangements entered into between the institution and certain States and donors for reservation of seats for their numberinees. The proposal was accepted by the respondent, and by resolution dated 17-3- 1951 it took over the administration of the College. According to the rules relating to admission to the College which were in force at that time, the maximum number of students who companyld be admitted in any year was 50, and they were classed into two groups, numberinees and ordinary students. The Committee had arranged to raise funds for the institution on a promise that those who companytributed Rs. 7,000 would be entitled to numberinate one student each for admission into the College, and that those students called numberinees should pay, in addition to the usual fees and charges, a capitation fee of Rs. 1,300 per annum. Excluding the seats which have thus to be reserved for the numberinees, the remaining seats were thrown open to all eligible applicants who came to be called selfnominees, and the requisite number was selected from among them on the basis of merit. Then came the rule which is at the root of the present companytroversy. It provided that Madhya Bharat students are 1219 exempted from capitation fees. Vide 1952 Calendar, page 5 and Exhibit G . After the State took over the management, it introduced certain modifications in the rules, and it is with these new rules that the present petition is companycerned, the petitioner having been admitted under them. In place of the rule that Madhya Bharat students are exempted from capitation fees a Dew rule was substituted, which runs as follows For all students who are bonafide residents of Madhya Bharat numbercapitation fee should be charged. But for other number-Madhya Bharat students the capitation fee should be retained as at present at Rs. 1,300 for numberinees and at Rs. 1,500 for others. Vide Exhibit 6/1 quoted in Rustam Mody State Sumitra Devi v. State 1 . Bona fide resident for the purpose of this rule was defined as one who is- a a citizen of India whose original domicile is in Madhya Bharat, provided be has number acquired a domicile elsewhere, or b a citizen of India, whose original domicile is number in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for number less than 5 years at the date, on which he applies for admission, or c a person who migrated from Pakistan before September 30, 1948 and intends to reside in Madhya Bharat permanently, or d a person or class of persons or citizens of an area or territory adjacent to Madhya Bharat or to India in respect of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Government. In brief, the change effected by the new rule was that whereas previously exemption from capitation fee was granted in favour of all Madhya Bharat students whatever that might mean, under the revised rule it was limited to bona fide residents of Madhya Bharat. Now the companytention of Mr. N. C. Chatterjee for the I.L.R. 1953 Madhya Bharat 87, 99, 1220 petitioner is that this rule is in companytravention of articles 14 and 15 1 , and must therefore be struck down as unconstitutional and void. Article 15 1 enacts The State shall number discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The argument of the petitioner is that the rule under challenge in so far as it imposes a capitation fee on students who do number belong to Madhya Bharat while providing an exemption therefrom to students of Madhya Bharat, makes a discrimination based on the place of birth, and that it offends article 15 1 . Whatever force there might have been in this companytention if the question had arisen with reference to the rule as it stood when the State took over the administration, the rule was modified in 1952, and that is what we are companycerned with in this petition. The rule as modified is clearly number open to attack as infringing article 15 1 . The ground for exemption from payment of capitation fee as laid down therein is bona fide residence in the State of Madhya Bharat. Residence and place of birth are two distinct companyceptions with different companynotations both in law and in fact, and when article 15 1 prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence. This is number seriously disputed. The argument that is pressed on us is that though the rule purports to grant. exemption based on residence within the State, the definition of bonafide residence under the rule shows that the exemption is really based on the place of birth. Considerable emphasis was laid on clauses a and b of the rule wherein residence is defined in terms of domicile, and it was argued that the original domicile, as it is termed in the rules, companyld in substance mean only place of birth, and that therefore the exemption based on domicile was, in effect, an exemption based on place of birth under an alia8. That, however, is number the true legal position. Domicile of a person means his permanent home. Domicile meant permanent home, and if that was number understood by itself numberillustration companyld help to make it 1221 intelligible observed Lord Cranworth in Whicker v. Hume 1 . Domicile of origin of a person means the domicile received by him at his birth. Vide Dicey on Conflict of Laws, 6th Edition, page 87 . The learned author then proceeds to observe at page 88 The domicile of origin, though received at birth, need number be either the companyntry in which the infant is born, or the companyntry in which his parents are residing, or the companyntry to which his father belongs by race or allegiance, or the companyntry of the infants nationality. In Somerville v. Somerville 2 , Arden, Master of the Rolls, observed I speak of the domicile of origin rather than of birth. I find numberauthority which gives for the purpose of succession any effect to the place of birth. If the son of an Englishman is born upon a journey, his domicile will follow that of his father. Mr. N. C. Chatterjee argued that domicile of origin was often called domicile of birth, and invited our attention to certain observations of Lord Macnaghten in Winans v. Attorney-General 1 . But then, the numberle Lord went on to add that the use of the words domicile of birth was perhaps number accurate. But that apart, what has to be numbered is that whether the expression used is domicile of origin or domicile of birth, the companycept involved in it is something different from what the words place of birth signify. And if domicile of birth and place of birth cannot be taken as synonymous, then the prohibition enacted in article 15 1 against discrimination based on place of birth cannot apply to a discrimination based on domicile. It was argued that -under the Constitution there -can be only a single citizenship for the whole of India, and that it would run companynter to that numberion to hold that the State companyld make laws based on domicile within their territory,. But citizenship and domicile represent two different companyceptions. Citizenship has reference to the political status of a person, and 1 1859 28 L.J. Ch. 396, 400. 2 1801 5 Ves. 750 at 786, 787 31 E.R. 839, 858. 3 1901 A.C. 287, 290. 1222 domicile to his civil rights. A classic statement of the law on this subject is that of Lord Westbury in Udny v. Udny 1 . He observes The law of England, and of almost all civilised companyntries, ascribes to each individual at his birth two distinct legal statuses or companyditions one by virtue of which he becomes the subject of some particular companyuntry binding him by the tie of national allegiance, and which may be called his political status, another by virtue of which be has ascribed to him the character of a citizen of some particular companyntry and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or companydition of the individual, and may be quite different from his political status. The political status may depend on different laws in different companyntries whereas the civil status is governed universally by -one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must depend. Dealing with this question Dicey says at page 94 It was, indeed, at one time held by a companyfusion of the ideas of domicile and nationality that a man companyld number change his domicile, for example, from England to California, without doing at any rate as much as he companyld to become an American citizen. He must, as it was said, intend quatenus in illo exuere patriam. But this doctrine has number been pronounced erroneous by the highest authority. Vide also the observations of Lord Lindley in Winans v. Attorney-General 1 . In Halsburys Laws of England, Vol. VI the law is thus stated at page 198, para 242 English law determines all questions in which it admits the operation of a personal law by the test of domicile For this purpose it regards the organisa- 1 1869 L.R. I Sc. Div. 441, 457. 2 1904 A.C. 287, 299. 1223 tion of the civilised world in civil societies, each of which companysists of all those persons who live in any territorial area which is subject to one system of law, and number its Organization in political societies or States, ,each of which may either be companyextensive with a single legal system or may unite several systems under its own sovereignty. Under the Constitution, article 5, which defines citi- zenship, itself proceeds on the basis that it is different from domicile, because under that article, domicile is number by itself sufficient to companyfer on a person the status of a citizen of this companyntry. A more serious question is that as the law knows only of domicile of a companyntry as a whole and number of any particular place therein, whether there can be such a thing as Madhya Bharat domicile apart from Indian domicile. To answer this question we must examine what the word domicile in law imports. When we speak of a person as having a domicile of a particular companyntry, we mean that in certain matters such as succession minority and marriage he is governed by the law of that companyntry. Domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a companyntry, we assume that the same system of law prevails all over that companyntry. But it might well happen that laws relating to succession and marriage might number be the same all over the companyntry, and that different areas in the State might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a companyntry for the purpose of domicile. The position is thus stated by Dicey at page 83 The area companytemplated throughout the Rules relating to domicile is a companyntry or territory subject to one system of law. The reason for this is that the object of this treatise, in so far as it is companycerned with domicile, is to show how far a persons rights are affected by his having his legal home or domicile within a territory governed by one system of law, i.e. within a given companyntry, rather than within 1224 another. If, indeed, it happened that one part of a companyntry, governed generally by one system of law, was in many respects subject to special rules of law, then it would be essential to determine whether D was domiciled within such particular part, e.g. California in the United States but in this case, such part would be pro tanto a separate companyntry, in the sense in which that term is employed in these Rules. The following statement of the law in Halsburys Laws of England, Volume VI, page 246, para 249 may also be quoted law, a domicil is acquired in that part of the State where the individual resides. An instructive decision bearing on this point is Somerville Somerville 1 . There, the dispute related to the personal estate of Lord Somerville, who had died intestate in London, his domicile of origin being Scotch. The companytest was between those who were entitled to inherit if his domicile was Scotch, and those who were entitled to inherit if his domicile was English. It was urged in support of the claim of the latter that by reason of the death of Lord Somerville at London, succession was governed by English domicile. In discussing this question the learned Master of the Rolls referred to the fact that the law of succession in the Province of York was different from that prevailing in other parts of England, and was akin to Scotch law, and posed the question whether if a Yorkshire man died intestate in London, succession to his personal estate would be governed by the Law of the Province of York or of England. He observes It is surprising that questions of this sort have number arisen in this companyntry when we companysider that till a very late period and even number for some purposes a different succession prevails in the Province of York. The custom is very analogous to the law of Scotland. Till a very late period the inhabitants of York were restrained from disposing of their property by testament And the question then would have been 1 1801 31 E.R. 839. 1225 whether during the time the custom and the restraint of disposing by testament were in full force, a gentleman of the companynty of York companying to London for the winter and dying there intestate, the disposition of his personal estate should be according to the custom or the general law. The principle that was laid down was that succession to the personal estate of an intestate is to be regulated by the law of the companyntry, in which be was a domiciled inhabitant at the time of his death without any regard whatsoever to the place either of the birth or the death or the situation of the property at that time. On the facts, the decision was that the domicile of origin which was Scotch, governed the succession. What is of interest in this decision is that it recognizes that for purposes of succession there can be within one political unit, as many domiciles as there are systems of law, and that there can be a Scotch domicile, an English domicile and even a York domicile within Great Britain. Under the Constitution, the power to legislate on succession, marriage and minority has been companyferred under Entry 5 in the Concurrent List on both the Union and the State Legislatures, and it is therefore quite companyceivable that until the Centre intervenes and enacts a uniform companye for the whole of India, each State might have its own laws on those subjects, and thus there companyld be different domiciles for different States. We do number, therefore, see any force in the companytention that there cannot be a domicile of Madhya Bharat under the Constitution. It was also urged on behalf of the respondent that the word domicile in the rule might be companystrued number in its technical legal sense, but in a popular sense as meaning residence, and the following passage in Whartons Law Lexicon, 14th Edition, page 344 was quoted as supporting such a companystruction By the term domicile, in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or companymoraney, is sometimes called his domicile, 1226 In Mcmullen v. Wadsworth 1 , it was observed by the Judicial Committee that the word domicil in article 63 of the Civil Code of Lower Canada was used in the sense of residence, and did number refer to international domicile. What has to be companysidered is whether in the present companytext domicile was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There is numberreference to domicile in the rule itself, but in the Explanation which follows, clauses a and b refer to domicile, and they occur as part of the definition of bonafide resident. In Corpus Juris Secundum, Volume 28, page 5, it is stated The term bonafide residence means the residence with domiciliary intent. There is therefore companysiderable force in the companytention of the respondent that when the rule-making authorities referred to domicile in clauses a and b they were thinking really of residence. In this view also, the companytention that the rule is repugnant to article 15 1 must fail. There was a good deal of argument before us on the validity of clause d of the rule. It was companytended by the petitioner that clause introduced a new element unconnected with domicile or residence which formed the basis of the previous clause, that it put foreign nationals on a more advantageous footing than Indian citizens, and that the entire rule must be discarded as based on numberrational or intelligible principle. No doubt, clause d strikes a new numbere. And it may be that as a matter of policy the management of the institution decided that it would be an advantage to associate citizens of other companyntries with Indian citizens in educational institutions, and therefore reserved a few seats for them on the most-favoured nation treatment basis. The validity of this reservation, however, does number arise for decision in this petition, and as clauses a to c rest on a classification based on domicile and residence, and are 1 1889 14 A.C. 631, 1227 distinct and severable from clause d , they would be valid even if clause d were to be held bad. It must be mentioned that the rule relating to the payment of capitation fee discussed above was again modified by the management as a result of the decision of the High Court of Madhya Bharat in Rustam Mody v. State Sumitra Devi v. State 1 . The rule as amended-and that is what is number in force-runs as follows Only those students, who are bona fide residents of Madhya Bharat and have been selected for being admitted in accordance with the allocation scheme and the rules of admission to the seats specifically reserved for the residents of Madhya Bharat are exempted from the payment of Capitation Fees. All other students admitted to seats other than those reserved for the residents of Madhya Bharat shall be liable to pay Capitation Fees as prescribed. Under this rule also, the exemption is in favour of bona fide residents of Madhya Bharat, and therefore with reference to the points number under companysideration, the position under the present rule would appear to be the same as under the previous one. It is unnecessary to companysider this matter further, as learned companynsel on either side were agreed that the rights of the petitioner must be determined in accordance with the rule which was in force when he was admitted. It is next companytended for the petitioner that the imposition of capitation fee on some of the students and number on others is discriminatory, and is in companytravention of Article 14 of the Constitution, and therefore void. The impugned rule divides, as already stated, Self-nominees into two groups, those who are bona fide residents of Madhya Bharat and those who are number, and while it imposes a capitation fee on the latter, it exempts the former from the payment thereof. It thus proceeds on a classification based on residence within the State, and the only point for decision is whether the ground of classification has a fair and substantial relation to the purpose of the law, or whether it is purely arbitrary and fanciful,, I.L.R. 1953 Madhya Bharat 87, 1228 The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. Vide article 41 . The State has to companytribute for the upkeep and the running of its educational institutions. We are in this petition companycerned with a Medical College, and it is well-known that it requires companysiderable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least inure for the benefit of the State? A companycession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in companysequence number open to attack. It has been held in The State of Punjab v. Ajaib Singh and another 1 that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the companycern primarily of the State. The companytention, therefore, that the rule imposing capitation fee is in companytravention of article 14 must be rejected. We have proceeded so far on the assumption that the impugned rule is a law as defined in article 13. If it is number that, article 14 would have numberapplication. It was indeed companytended by the learned Attorney General on behalf of the respondent that the rule in question is a mere administrative or executive order, and that however liberally the word law might be 1 1953 S.C.R. 254. 1229 companystrued, it should be limited to what is an expression of the legislative power and cannot companyprehend what is an executive order. In support of this companytention he relied on the decision in Om Prakash v. The State 1 . In the view which we have taken that even on the footing that it is a law, the rule does number offend article 14, we do number companysider it necessary to express any opinion on this question. One other companytention put forward by the respondent remains to be numbericed. It was urged that as the institution was originally under private management and the State took it over subject to the companyditions under which it was run, it was bound to enforce the rule relating to the payment of capitation fee which was previously in operation. But the terms under which the State took over expressly reserve only the agreement for reserving seats for the numberinees of participating States and donors, and do number companytain any undertaking to maintain the rule relating to imposition of capitation fee. Whether if such an undertaking had been given it companyld have been set up in answer to a fundamental right, does number therefore arise for decision. In the result, the petition fails and is dismissed but in the circumstances there will be numberorder as to companyts. JAGANNADHADAS J.-I regret that I feel obliged to differ. The question that arises is whether the petitioner who is a resident of Delhi and has been admitted in July, 1952, by the State of Madhya Bharat as a student in the Mahatma Gandhi Memorial Medical College at Indore and who has been called upon to pay a sum of Rs. 1,500 per annum as capitation fee, in addition to the tuition fees and other charges payable by all the students of the companylege in general, is entitled to a writ restraining the authorities companycerned from levying that capitation fee on the ground that the rule under which be is asked to pay is repugnant to the Constitution. The history of the A.I.R. 1953 Punjab 93. 1230 institution and the relevant rules have been set out in the judgment of the majority just delivered and it is unnecessary to repeat them. It is desirable, however, to mention, at the outset two matters. The exact authority for these rules, that is to say, the question whether they are rules made under a rule-making power having a legislative basis, or whether they are merely executive orders, which it is open to the State Government to change as they please, has number been clearly elucidated. Though the learned Attorney General suggested, in -the companyrse of his arguments, that these were merely executive orders and that as such they did number companye within the scope of article 14 of the Constitution, the material placed before us throws numberlight thereon. Nor has the question as to whether these executive orders which are issued by the State and are general in their application within the ambit of their subject matter companystitute laws falling with in the scope of article 14, been sufficiently canvassed before us. The discussion has proceeded on the assumption that the validity of these rules may be judged with reference both to the article 14 and article 15, numberother article obviously having any direct bearing. Now, as has been pointed out in the majority judgment, the relevant original rule by the date when the College was taken over by the State from private management was that Madhya Bharat students are exempted from capitation fees. On the State taking over the College, this rule was substituted by the following, new rule For all students who are bona fide residents of Madhya Bharat numbercapitation fee should be charged. But for other number-Madhya Bharat students the capitation fee should be retained as at present at Rs. 1,300 for numberinees and at Rs. 1,500 for others. Bona fide resident for the purposes of the above rule was defined as a a citizen of India, whose original domicile is in Madhya Bharat, provided he has number acquired a domicile elsewhere, or b a citizen of India, whose original domicile is 1231 number in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for number less than 5 years, at the date on which he applies for admission, or c a person who migrated from Pakistan before A. September 30, 1948 and intends to reside in Madhya Bharat permanently, or d a person or class of persons or citizens of an area or territory adjacent to Madhya Bharat or to India in respect of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Government. This, it is said, was the rule in force when the applicant was admitted into the College. This rule is again said to have been modified recently and the same is as follows Only those students, who are bona fide residents of Madhya Bharat and have been selected for being admitted in accordance with the allocation scheme and the rules of admission to the seats specifically reserved for the residents of Madhya Bharat are exempted from the payment of capitation fees. All other students admitted to seats other than those reserved for the residents of Madhya Bharat shall be liable to pay capitation fees as prescribed. In the affidavit filed in this Court by Shri H. L. Gupta, Assistant Secretary to the Government of Madhya Bharat, it is stated that this was meant to be only a restatement by the Government of their real intention in order to clarify what the prior rule was meant to companyvey. Now, with reference to these rules, it is necessary to numberice the suggestion made in the companyrse of the argument that the rules by the use of the word exemption indicate that some students get the benefit of number paying what would otherwise have been payable and that therefore others cannot companyplain of any hostile action companystituting discrimination. But a companyy of the rules for admission to the regular M.B.B.S. companyrses companyied from Mahatma Gandhi Memorial Medical College, Indore, Calendar of 1954 with which we have been furnished as one of the 1232 enclosures to the affidavit of the petitioner, and which is at pages 34 to 38 of the paper-book, on a perusal thereof, clearly shows at page 37 that the capitation fee is in addition to the numbermal fees and that this is payable only in respect of some students, while all the students in general pay certain prescribed fees. But whether the rule is in the nature of an exemption for some students or is by way of an addition for the others, there is clearly discrimination between the two groups which affects the one adversely. The very use of the phrase capitation fees for this additional amount levied from some, is indicative of its discriminatory character. The only question accordingly is whether this discrimination falls within the mischief of either article 14 or article 15. It is desirable for this purpose to have a clear understanding of what exactly the relevant rule at the date of the admission of the applicant into the College signifies. It has been stated that this rule has to be understood with reference to the allocation scheme for admission of students which is said to be as follows in the affidavit of Shri H. Gupta, Assistant Secretary to the Government of Madhya Bharat. The basis of allocation of seats at the time of admission each year is that out of the total number of candidates to be newly admitted a certain number of seats is reserved for numberinees of such States as also of such individuals with whom there is a companytract of reservation of seats, and a certain number of seats is reserved for Madhya Bharat. The rest go to what are called self-nominees. All candidates except Central Government numberinees are, however, admitted by a companypetitive examination and are selected in order of merit for each category. It has been stated by the applicant in his reply affidavit that, while the companypetitive examination is the same for all, it is only the marks of the candidates in each separate group that are taken into companysideration inter se. However this may be, there appear to be, as stated by the Assistant Secretary to the Madhya Bharat Government, three broad categories 1 A 1233 certain number of seats reserved for bona fide students of Madhya Bharat. 2 A certain number of seats reserved for some specified States and the original donors, who in respect of their numberinees have to pay capitation fees, somewhat lower in amount, and 3 The rest of the students who have to pay the higher capitation fees. The second category above mentioned may be left out of companysideration for the present case, since that depends on certain pre- existing companytractual obligations and different companysidera- tions may arise and the present petitioner does number fall within this category. The question of discrimination in this case arises really with reference to categories I and 3 above and turns upon the exact meaning of the phrase bonafide, residents as defined in the rules. If this definition was meant to companyvey fairly andsubstantially, the qualification of residence in Madhya Bharat and numberhing else, it may be, that this is number hit. by article 15 and that it may also be a reasonable classification, on the facts and circumstances of a particular State, for purposes -of article 14. The learned Attorney-General himself based his arguments, at one stage, on this view of the definition of bona fide resident in the rules. But the difficulty is that the learned Attorney-General has number companymitted himself, on behalf of the State, as to this being the only reasonable meaning of the definition. He put it as a kind of alternative. The Assistant Secretary to the Madhya Bharat Government, Shri H. L. Gupta, in his affidavit clearly and categorically says that the charging of capitation fee, truly speaking, is number on the basis of residence. The restatement of the rule by the Government is number also definite or clear about it inasmuch as it uses again the phrase bona fide residents of Madhya Bharat. Bona fide residents of Madhya Bharat, as defined, is clearly something quite different from the class which can be designated ordi- narily as residents of Madhya Bharat. Now out of the four categories companyprised in the definition, obviously c and d have absolutely numberhing to do with actual residence. It is also difficult to discover any principle with reference to which discrimination can be justified in favour of 1 a Pakistani migrant 1234 with the mere intention to make Madhya Bharat his permanent residence, and 2 a person, belonging to the companytiguous areas of Madhya Bharat, or the companytiguous areas of India and excluding citizens of India from the number-contiguous areas of Madhya Bharat, like the applicant . The main categories, however, are those which fall within a and b of the definition. But it is difficult to say even of these categories that they are based merely on residence, as such., of the person companycerned. Category b has reference to Domicile in Madhya Bharat plus residence in Madhya Bharat for the preceding five years. Category a has reference only to original domicile in Madhya Bharat and by companytrast with category b which requires precedent residence, is clearly intended number to insist on any precedent residence. Even if it be assumed that domicile means permanent home as stated by Lord Cranston in Whicker Hume 1 this has numbernecessary reference to the appli- cants actual residence at the relevant time. It is difficult to see why the fact of the applicants father having had his permanent home in Madhya Bharat at the time of applicants birth should be a ground of preference or why a person who has made Madhya Bharat his permanent home but left it for a time and returned only, say, an year previously should be denied it. Thus the definition of bona fide resident taken as a whole or even companyfining it to categories a , b and c cannot be said to be based merely on residence in Madhya Bharat. Nor can any intelligible basis of grouping be gathered therefrom by imputing to the word domicile the meaning residence or .permanent home. It is interesting to numberice, in this companynection, that category b in requiring Madhya Bharat domicile and precedent residence for five years follows closely the pattern of Indian citizenship based on category c of article 5 of the Constitution with domicile of Madhya Bharat substituted for domicile of India and this raises the question of the companycept of regional domicile tending to the growth of the idea of regional citizenship which will be discussed presently. 1 1859 28 L.J. Ch. 396, 398. 1235 Now companyfining our attention to the category a which has given rise to the main companytroversy in this case, it appears to me quite clear that the phrase .original domicile in Madhya Bharat used therein companyld number have been meant to indicate either the residence or the permanent home of the applicant in Madhya Bharat. What then is the meaning intended to be companyveyed thereby. Is the word domicile in this phrase to be understood in the legalistic sense or as the likely framer of the relvant rule-possibly a lay man like the Director of Public Instruction of the State-would have understood it to mean. It is necessary for this purpose to have a clear idea of the companycept of domicile and its applicability in relation to any particular region within a companyntry like India. Now the jurists companycept of domicile is one which can be best gathered from the following passage in the classic judgment of Lord Westbury in Udny v. Udny 1 . The law of England, and of almost all civilized companyntries, ascribes to each individual at his birth two distinct legal statuses or companyditions one by virtue of which he becomes the subject of some particular companyntry, binding him by the tie of natural allegiance and which may be called his political status another by virtue of which he has ascribed to him the character of a citizen of some particular companyntry, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or companydition of the individual, and may be quite different from his political status. The political status may depend on different laws in different companyntries whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. Thus domicile is that attribute of a persons status which according to International Law determines 1 1869 L.R 1 Sc. Div. 441, 457, 1236 the personal laws by which he is governed and on which his personal laws depend. The question for companysideration is whether this companycept of domicile can apply to the word domicile in the phrase domicile in Madhya Bharat. Dicey in his Conflict of Laws 6th Edn. , at pages 43 and 78 says as follows A persons domicile meaning thereby the place of domicile is the companyntry which is companysidered by law to be his permanent home and at page 82 he says the area companytemplated relating to domicile is a companyntry or territory subject to one system of law Farnsworth in his book on the Residence and Domicil of Corporations 1939 Edition says as follows at page 1 In any companysideration of domicile the area companytemplated has always been taken to be a companyntry or Ca territory subject to one system of law. It is numberdoubt true that there are companyntries which though politically one unit have different personal laws, in different areas thereof. In such a case the sub-unit which is governed by one system of law is the area of domicile. Thus for instance, as has been pointed out, though Great Britain is one single political unit, the personal laws in Scotland are different and therefore Scotch domicile is recognised. But this is a matter of historical growth. Now, so far as India is companycerned it appears to me that there has so far been numbersuch companycept of domicile of sub- units known or recognised by law, for the only purpose for which it is numbermally relevant and which attracts it, viz. personal laws of the citizens of India. The personal laws in India, as is well known, depend mostly on religious affiliations. This has been so from pre British period. The earliest British regulations have recognised this and the same has been companytinued by a specific provision being incorporated in the Civil Courts Act or analogous Acts of the various Provinces or States to the effect that the Courts are to decide matters relating to Hindus and Muhammadans, etc. with reference to their personal laws, These Acts 1237 have invariably a provision by way of a direction to the Courts companycerned, more or less in the following terms To decide any question regarding succession, inheritance, marriage, or caste, or any religious usage or institution or the like by the Muhammadan law in cases where the parties are Muhammadans and by Hindu law in cases where the parties are Hindus. In respect of some of these matters as well as in respect of other matters which properly fall within the category of personal laws such as for instance minority, succession, etc., there have been legislative modifications. But it is numbereworthy that those modifications are almost entirely of an all-India character and number on anv regional basis viz. Indian Majority Act, Indian Succession Act . So far as I am aware there are only a few instances of Provincial or State legislation on any matters relating to personal laws and that too, to an extremely small and limited extent. Thus it will be seen that the Province or the State of India to which a Hindu or Muslim belongs has numberrelevance or relation to his personal laws. Indeed, the companytrary is emphasised by the fact that, a Hindu at any rate, carries with. him even his own school of Hindu law in spite of migration to a different Province or State. Now, so far as Indian citizens who are neither Hindus number Muslims are companycerned, such as, Indian Christians or Anglo-Indians, they are governed by personal laws which are all-India in character and number regional, as for instance the Indian Succession Act. It may be mentioned that even in Europe until the middle ages, personal laws depended on race and number on domicile. See Philippine on International Law, page 36 . In this state of the factual situation as regards the personal laws of the various categories of persons who companyprise the bulk of the population of India, it appears to me to be clear that there has been in India up to the present moment numberscope for growth of any companycept of State or Provincial domicile as distinct from Indian domicile. There is thus numberplace for regional domicile, in the existing Indian law. Nor is there any reason 1238 to think that such a situation will arise in the future under the present Constitution. For this purpose, it may be numbericed that the exclusive legislative power of the State does number extend to personal laws. Personal laws are the subject matter of item No. 5 of the Concurrent Legislative List. It is relevant in this companynection also to numberice that article 44 of the Constitution enjoins that the State shall endeavour to secure for the citizens a uniform civil companye throughout the territory of India. It is extremely unlikely therefore that regional personal laws will be, allowed to become operative in any substantial measure. It may be also mentioned that there is single citizenship under the Constitution for the whole of India and that citizenship and naturalisation have been listed within the exclusive companypetence of the Union Legislature. Of companyrse citizenship is different from domicile. But I mention this here only to emphasize the view, that companysistently with the Constitution, the companycept of regional domicile which does number exist at the present day and which if recognised would tend to the growth of claims of regional citizenship as for instance in the United States of America would be entirely foreign to the intendment of the Constitution. It is with reference to the above companysiderations that the phrase domicile in Madhya Bharat in the relevant rule defining the phrase bona fide resident of Madhya Bharat has to be companysidered and understood. Since the companycept of domicile in Madhya Bharat, is, in my view, unknown to the existing Indian law, I do number think it permissible to companystrue the phrase domicile in Madhya Bharat used in the relevant rule as having anything to do with the regional domicile of the kind known to the English system of law. The recognition of such a companycept of regional domicile in English or American law does number necessitate that we should import the same idea into our companyntry companytrary to the intendment of the Constitution. We have got to companysider the meaning of the phrase original domicile in Madhya Bharat used in the relevant rule with reference to the existing state of law in India, which, I companyceive, does number recognise such a regional domicile. 1239 I have already given my reasons for thinking that the meaning of residence or permanent home of the applicant cannot be read into the phrase domicile in Madhya Bharat used in clause a . In the circumstances it appears to me to be reasonably clear that the phrase original domicile in Madhya Bharat is meant to companyvey the place of birth of the applicant in Madhya Bharat. It is perfectly true that domicile of origin and place of birth are two different matters. But that is so only where the use of the phrase domicile of origin companyveys a definite legal meaning. But where, as in the present case, the phrase domicile of origin in Madhya Bharat companyveys numberlegal meaning, as I have pointed out above, and if any meaning has to be attached to it, then it companyld only have reference to the place of birth. This would accord with what was likely to have been companytemplated by the framer of the rule. Normally a persons domicile of origin is the place of his birth except in a few and exceptional cases. In this companytext the following passage from Corpus Juris Secundum, Vol. 28 at page 1095 may be numbericed A persons domicil of origin is the domicile of his birth. It is generally but number necessarily the place of birth. In this companynection it is to be remembered that the relevant rule is a substitute for the pre-existing rule which was as follows Madhya Bharat students are exempted from capitation fees. The phrase Madhya Bharat students has numberreference either to residence or domicile, and there can be numberdoubt that it numbermally companynoted students who were born in Madhya Bharat. In my opinion when the State authorities took over the management of the institution from private hands and made a change in the rule by companyning a hybrid definition of the phrase bona fide residents of Madhya Bharat placing the category of citizens whose original domicile is in Madhya Bharat in the forefront of that definition, they only attempted to camouflage the 1240 implication thereof so as to accord with the pre-existing rule, viz. that the benefits of the exemption from capitation fees should be available only to persons born in Madhya Bharat and the burden of the capitation fees should be borne by persons number born in Madhya Bharat. In the view I take of the real meaning and effect of the rule, which is under discussion, neither an attempt at subsequent clarification number the actual manner in which it is said to be administered or intended to be administered, as stated by the Assistant Secretary to the Madhya Bharat Government,, Shri H. L. Gupta, in his affidavit, even if accepted as companyrect, can have any bearing. The fact that some of the admitted students of the Medical College who are residents of Madhya Bharat may number be entitled to exemption from capitation fee under the rule as number sought to be interpreted is number relevant so long as a student in the position of the applicant cannot have the benefit of the exemption, even if he got the highest marks in the companypeti- tion. In my view, therefore, the rule in question has reference to place of birth in Madhya Bharat primarily, though a number of other miscellaneous categories might also companye in under other and different heads. Hence the rule offends article 15 of the Constitution. Even in the view that the rule has reference to the juristic companycept of regional domicil and for that reason does number fall within the scope of the inhibition of article 15, 1 am unable to see how, with reference to article 14, the distinction based on such domicile can be companysidered reasonable. No sugges- tion has been put forward how original domicile in Madhya Bharat is a reasonable ground for classification. In my opinion, therefore, the primary companytent of the rule relating to capitation fees which is companytained in clause a of the definition of bona fide resident of Madhya Bharat does operate to the disadvantage of the petitioner by way of unconstitutional discrimination. Hence the State Government cannot validly seek to levy capitation fees on the petitioner with reference to that rule. I would, therefore, allow this application. 1241 I think it right to add that the question as to the existence or admissibility of the companycept of regional domicile as distinguished from Indian domicile and as to the bearing of this on the meaning of the companycerned. rule were number canvassed or suggested at the hearing A before us and that the Court has number bad the benefit of arguments on these and the companynected matters. if, therefore, I have ventured to differ, numberwithstanding my respect for the views of the majority and numberwithstanding the absence of assistance from the Bar, it is out of the companyviction that the recognition, express or implied, of regional domicile by a decision of this Court would be companytrary to the intendment of the Constitution.

Case appeal was rejected by the Supreme Court